The Most Important Element of Tonight's Win for Marijuana Sentencing Reform

Tonight, a ballot issue here in Wichita, KS, to reduce the penalty for a first-time arrest for the possession of a small amount of marijuana won. Did it win big? Nope, but it did win decisively: 54% to 46% of the total votes cast. And that, frankly, may be the best possible result which we who supported this ballot issue could have hoped for.

Why do I think those result are better for the overall effort to challenge drug-war overreach than a blow-out win? Because this is just the first step. Now, here in Wichita, we will wait to see what our new mayor and the new city council will do as Kansas's Attorney General, Derek Schmidt, decides whether or not to make good on his threat to sue the city to force our government to ignore the results of the election, since it would involve Wichita police treating as an easily disposed-of criminal infraction the possession of a controlled substance which the state lists as a Class A misdemeanor, with heavy fines and a criminal record attached. If an injunction is laid upon the city, our government almost certainly won't fight it, and that will be that.

Except it won't be, because state legislators will be watching. They wouldn't be if the sentencing reform ballot issue had lost. And it's quite possible they also wouldn't be if it had won big--say, a 70%-30% blow-out. In such a case, it would have been very easy for the opponents of the measure to say to folks up in Topeka, "They won solely because they registered for this one issue a bunch of marginal, disaffected folk who can't possibly be counted on to vote normally." But they can't say that in this case, because the turnout in this election--with about 37,000 votes cast out of about 200,000 registered voters, or about 18% of the total--is unfortunately pretty standard for springtime city-wide elections. And moreover, if you look at the votes cast for the sentencing reform ballot and the only other city-wide contest--for mayor--the numbers are almost identical. Clearly, those who worked so hard to bring this reform issue to the voters did not manage a win by somehow flooding the ballot booths with thousands of disengaged, marginal, first-time voters. (If they had, voting totals would have been different, because they wouldn't have voted for mayoral candidates at the same rate, or else if they did the number of write-in ballots--which amounted to only 5% of all votes--for outright supporters of the sentencing reform issue like Jennifer Winn would have been much higher.) No, this ballot issue won a small but clear victory because thousands of standard Wichita voters were persuaded it was the right thing to do. And those are exactly the voters whom at least a few of those state legislators in Topeka will want to have on their side to stay in office.

So tonight, I'm feeling pretty good. My bet is that sentencing reform won't be allowed to happen in Wichita--but the people who will be frustrated by the state's actions in that regard are going to include thousands of ordinary voters in this mostly white, mostly conservative city, and that is the sort of thing that may really lead members of certain committees to wake up to not just a valuable reform in criminal justice, but an electorally beneficial one as well. This is how you build movements, folks. Door-knocking, signature-gathering, and vote after vote after vote.

Marijuana and the Democratic Problem

This is a slightly expanded version of an editorial which appeared in the Wichita Eagle this morning.

This past Tuesday, when the Wichita City Council approved putting on the April ballot a proposal which would reduce the criminal penalty for adult possession of small amounts of marijuana to an infraction with a fine (essentially making it the same as a minor traffic violation), they did the appropriate thing. After months of work and much painstaking attention to detail, the many volunteers associated with the Marijuana Reform Initiative--some of which I'm happy to call friends, whose protests I have joined and whose petitions I have signed--had done exactly what the law requires, and the City Council recognized that.

It was interesting, however, as I sat in the City Council chambers and listened to the councilors’ comments (particularly as several of them spoke in what seemed to me to be a somewhat CYA-manner in regards to the "dilemma" before them), to be reminded how expensive and time-consuming and intimidating self-government can often appear to be.

Specifically, multiple members of the Council expressed consternation over the fact that the laws in question are “fuzzy.” Obviously, if the voters of Wichita approve this measure and the city government acts in accordance with it, instructing the Wichita City Police and city prosecutors to change their approach to this particular drug, the city will be in violation of state law, which categorizes marijuana possession as an offense deserving of a year in jail and a fine of thousands of dollars. (And or anything more than the first offense or mere possession, far harsher than that.) And yet, for them to simply dismiss this legally produced petition would also have been a violation of state law. Hence, their frustration.

But is a situation like this really one which calls for frustration? On the contrary, what we have here is rather simple: a group of citizens making use of the procedures legally available to them to directly initiate political action. As with any political action, taken by any means on any level of government, there always will be citizens organized–either directly, or through their elected representatives, or through various other established interests–to oppose them. That’s not surprising; that’s to be expected. It is the essential nature of mass democracy in a pluralistic society: many different groups, acting on behalf of many different agendas, using many different venues to pursue their goals. It’s combative and messy. For better or worse, under our present constitutional arrangement and with our present political culture, it couldn’t be any other way.

Does the fact that this particular political fight may involve the state claiming authority over drug laws and bringing an injunction against the city of Wichita mean that it’s different? More stressful, more irresponsible, and thus one to be especially avoided by our elected leaders? I can’t think of any principled reason why.

There are, to be sure, certain matters that probably shouldn’t cross from the legislative to the judicial branches of government or back again. (For example, I'm very doubtful of both the political wisdom and of the democratic benefits of attempting to force governments to recognize budgeting priorities through legal action, something we know all too much about here in Kansas.) But questions of criminal justice and penalties have, on the contrary, always involved fights in both legislatures and courts, and have been a particular target of direct citizen input and action for many decades. (Just think of death penalties cases, three-strikes-and-you're-out policies, mandatory sentencing, and many more.) This issue shouldn’t be any different.

(And I should emphasize, the issue here is not marijuana per se; the issue our often unaware attempts to shelter ourselves from democracy's messiness. To the extent that the fact we are talking about the personal possession of a small amount of a controlled substance here, I can only say, first, that this isn't--yet--about legalization, only sentencing reform, and second, as I wrote once before: "any defense of norms and traditions--especially prohibitory, paternal ones--has to be able to constantly respond to the changing, pluralistic flow of information all around us." Harsh penalties for a tiny bit of pot experimentation are contributing to a genuine social harm, that of mass incarceration. This is, in context, a good way to start pushing back on that.) 

I am most definitely not saying that I think every city council ought to challenge the authority of every state law, in the same way that I don't think state legislatures ought to make a habit of challenging the authority of the national government. There are all sorts of financial and constitutional--not to mention policy-related!--realities to be considered, and they might often suggest an acceptance of the status quo, or even encourage the recognition that in certain contexts general approaches may be well superior to particular ones. Even Thomas Jefferson, an arch-revolutionary and fan of local government if there ever was one, allowed that such was sometimes the case. (It would be nice if the Brownback administration, which never seems happier than when it is, on the one hand, throwing ideologically-motivated challenges at the national government, and on the other, stealing authority from local municipalities, considered those same points as well.)

But even given all those considerations, it remains the fact that, in our pluralistic and federal system, conflicts between different governing bodies are, as they say, a feature, not a bug. The number of variables that can come to play in these conflicts are huge and unpredictable. (What would be the content of any such injunction which the state government could lay on Wichita, anyway? Would they empower state police officers to come into Wichita arrest local police who obeyed the new local ordinance? Would they strip elected Wichita officials of their authority and jurisdiction, and replace them with appointees of their own? How would Topeka pay for that, anyway?) Like it or not, going forward with this vote is a step forward in the always evolving process of democracy. Clarifying “fuzzy” statutes and forcing a change in political agendas doesn't happen spontaneously; they will inevitably require clashes and challenges, and when the opportunity for such arises, they ought to be welcomed.

The concluding comments of one councilor during the meeting clearly implied that “being a good citizen” is the same as “not being in conflict with the state legislature.” If we all lived in small, authoritarian communities governed by consensus, perhaps that would be appropriate. But instead, we live in an environment characterized by adversarial conflicts, mediated through diverse political and legal processes. That's often not a particularly effective way to carry out mass democracy, but it is the system we have. And consequently, I think those who suggest that a legally produced vote on a technically invalid ordinance is the wrong step, and instead that everyone involved should be obliged to just appeal to the state government and wait for a "thaw" in the conversation about marijuana in Topeka, misunderstands: going forward with votes which force a question over just what truly is valid is exactly how conversations like that move forward. The people have done their political part; I hope the City Council, depending on what Wichita citizens choose, will be ready to their legal part as well.

Libertarianism, Paternalism, and Pot

[Cross-posted to Front Porch Republic]

From 2003 to 2005, we lived in Craighead County, Arkansas, while I taught at Arkansas State University. Craighead was a dry county, having voted many years ago to prohibit the sale of alcohol in its borders. Despite numerous efforts by restaurant owners and others over the years, that public decision remains in place today.

As a bunch of Mormon teetotalers, this instance of prohibition didn't bother my family and I at all, not did it appear impact our social circle in any noticeable way. (At faculty get-togethers, it was common for one or another graduate student, having received prior assignment, to show up at some point during the festivities with a duffel bag full of wine and beer for those who chose to imbibe.) I'm grateful for it all the same, though. Primarily because it gave me an up-close chance to talk to people about, and think about, what it means when one segment of the general population--a population that is, despite what some may think of rural northeastern Arkansas, every bit as affected by the larger commercial and pluralistic world as any distinct group of 100,000 people (70,000 of whom live in the city of Jonesboro, where ASU is located) anywhere in the USA is likely to be--comes to a collective judgment which effects the whole population. In other words, when a local majority (in this case, a union of white and African-American conservative Baptist church-goers) democratically turn their moral and religious judgments into law.

This issue is back on my mind this week, because of a couple of recent events. One took place this past Tuesday here in Wichita, when the backers of a petition (one of whom was me) to greatly reduce the criminal penalties attached to the possession of small amounts of marijuana gathered during a meeting of our city council to urge them to put the issue on the ballot, despite having fallen a few dozen signatures short in our initiative effort, and despite concerns over state and federal authority and the wording of the resolution. The other took place online, when my old friend Damon Linker published a challenging article which argued that the success which libertarianism has enjoyed in the United States is almost entirely the result solely of a rise of non-judgmental moral "libertinism":

Americans now inhabit a world in which increasing numbers of individuals find it difficult, if not impossible, to imagine submitting to rule by any authority higher than themselves on moral and religious matters. Sure, people continue to accept that one will be judged harshly and punished for violating another individual's consent (the only libertarian moral consideration). But beyond that? Don't be ridiculous. Who are you--who is anyone--to judge my behavior?

Damon used as an example in his piece the case of a young woman at Duke University who has achieved some small  fame for performing in pornographic films as a way to pay for her education, a career which she has defended in part in libertarian language. This in turn prompted a long online debate between Damon and various libertarian interlocutors, revolving around the frustration one libertarian writer felt at being put into a position of not only not judging, but in fact embracing as a positive act of liberty, something that she considered deeply unwise:

As a libertarian, I want pornography and even prostitution to be legal, if reasonably regulated. But as a survivor of hookup culture, I can’t even implicitly condone rampant, publicized promiscuity (which even on camera and for money constitutes rampant promiscuity nonetheless). Keeping your experiments in sexual growth small and private helps to limit their potential to damage both yourself and our normative socio-sexual frameworks. I want to live in a community where people understand and respect that we are all sexual creatures, enjoy their sexuality in pro-social or at least benign ways, and limit it otherwise. Such a hypothetical community does not treat the decision to perform in pornography (and then talk about it all over the internet) as just one unimpeachably empowering life choice among many.

The heart of the argument which followed was basically this: does standing for the principle of individual pluralism and freedom (which is, however you justify it, the position shared by all varieties of libertarianism) necessarily make it inconsistent to refuse to endorse, or in fact to judge negatively and wish to oppose, various choices that people make with their liberty? In other words, can supporting libertarianism as a political ideology be separated from supporting the choice to be a moral libertine?

This argument might not appear to have anything to do with our argument over the decriminalization of marijuana here in Wichita, but in my mind the two issues were connected. There are, of course, a large range of legal and political issues at play in our local debate (all of which influenced the ultimate decision of the city council--which was to instruct a member of their staff to work with the petition-gatherers to re-write the proposed ordinance and seek to obtain enough signatures to try again on a later ballot--much more than I think the should have). You have the question of state and federal jurisdictions over drug laws, the precedents established (or have they been?) by Colorado and Washington, debates over recreational vs. medicinal marijuana use, disputes over the rules which govern citizen petitions, etc. But hidden within all that is a familiar question (one which I've staked out a position on before): when you are dealing with an issue or a matter which involves consequences that would be experienced solely by the individual making the choice (and yes, despite the talk one often hears about marijuana being a "gateway drug," the real costs of decriminalization, or even legalization, are widely recognized to be simply a--possibly minimal--increase of marijuana usage, with attendant effects upon vulnerable users...but not a crime wave or social breakdown), then on what basis, if ever, should judgments be allowed to turn into prohibitions? Most libertarians allow that, of course, you ought to be able to organize and express yourself in which ever way you want--but can that organizing, and judging, turn paternal?

Something I wrote in the aforementioned discussion may be helpful here. One could say that there are at least two, overlapping but non-identical, ways in which the refusal to exercise prohibitive judgment over another person's choices could be formulated along libertarian lines, theoretically speaking. In one case, it's for Hayekian reasons: generally speaking, you should refrain from developing one's judgments in the direction of paternal action because you just don't know enough to be able to speak knowledgeably about another person's choices (particularly their moral, personal, religious, or sexual ones). That's a powerful argument, one which I've taken more and more seriously as I've worked through the pseudo-anarchic positions developed by the scholar James C. Scott. However, I don't see this as necessarily requiring that those in the libertarian camp have to support libertinism, because strictly speaking it leaves open the sort of local, contextual possibility that, in this particular case, at this particular time, some hypothetical person actually might know enough to be able to speak authoritatively about what another person is doing with their life. In the other case, though, the connection is strong, because you're thinking in Lockean terms, not ones of epistemology but of property. Here, the demand that one not act paternally towards another arises not from the fact that you don't know enough to judge another's choices, but from the belief that you have no right to do so, because they own themselves (their rights, their conscience, their sense of self), and you don't. This is a pretty reductive analysis, I know, but I think it perhaps helps explain why, given our rights-obsessed culture and Lockean intellectual inheritance here in the USA, we so often see a cross-over from a concern with personal liberty, to a refusal to countenance any negative judgments of, much less prohibitions regarding, behaviors or choices which some segment of the population (even a local majority) considers bad or wrong.

As someone who philosophically favors communitarian accounts of our actions, values, and needs much more than individualist ones, the question of prohibition comes easier for me. I don't think there are, or at least don't think their necessarily ought to be, any near-absolute philosophical roadblocks in the way of local communities democratically trying to define themselves, at least as regards matters which don't come close to broadly accepted fundamental liberties. Buying a beer or smoking a joint don't qualify in either case. So why is it that I am basically supportive of what the church-goers in Craighead County are trying to maintain, while in the case of Wichita I'm actively involved in trying to gain signatures and drum up support for a possible effort to challenge state and federal laws in regards to cannabis?

It's in part because I've learned from Hayek, as well as from Scott; I've learned that large bureaucracies and entrenched laws too often stifle the sort of exploratory action which might enable people to understand better their own needs, to say nothing of the fact that such institutional structures too often punish, at great personal and social costs, all sorts of individuals who have worked out what their own needs are, and who attempt to get around those structures. Of course, that's just a highfalutin' and theoretical way of talking about those who find themselves robbed of the ability to find a job or participate in society because of stupid choice made when they were young, or those who are convinced (rightly or wrongly) that cannabis is something they desperately need for medical reasons. In other words, I've read their stories (probably most particularly here), learned about their situations, and come to greater appreciation of how this prohibition, at this time, is doing more harm than good. As always with me, it's a context thing.

I'm still willing to defend particular paternalisms; I think any healthy community should, for the sake of preserving social norms and preventing the (I think) ultimately damaging (in both a personal and civic sense) glorification of ever-multiplying, never-judged choices. Defending one's collective moral and cultural identity, and what it can achieve, is too important to be sacrificed to the cult of individual liberty. But if my communitarian ideas have changed at all over the past several years (and they have), it is that I know understand that a defense of norms and traditions--especially prohibitory, paternal ones--has to be able to constantly respond to the changing, pluralistic flow of information all around us. In this case, well, marijuana isn't a drug I have any interest in, or would ever want any of my kids to use. But it isn't, by any means, the worst thing they could do to their bodies (plastic surgery very like would be worse!), and if there people in my community that are being unnecessarily harmed by this prohibition, then I ought to recognize that the judgment I make as parent, in this case at least, is probably as far as I ought to allow my paternalism to go.

Personal Vengeance, Community Need

Chris and Henry at Crooked Timber have rightly expressed a fair amount of disgust at this surprising comment from Eugene Volokh:

"Something the Iranian Government and I Agree on: I particularly like the involvement of the victims' relatives in the killing of the monster; I think that if he'd killed one of my relatives, I would have wanted to play a role in killing him. Also, though for many instances I would prefer less painful forms of execution, I am especially pleased that the killing--and, yes, I am happy to call it a killing, a perfectly proper term for a perfectly proper act--was a slow throttling, and was preceded by a flogging....I am being perfectly serious, by the way. I like civilization, but some forms of savagery deserve to be met not just with cold, bloodless justice but with the deliberate infliction of pain, with cruel vengeance rather than with supposed humaneness or squeamishness. I think it slights the burning injustice of the murders, and the pain of the families, to react in any other way."

The man whose bloody and public execution Volokh is celebrating is a convicted serial killer, who dealt out immeasurable pain and suffering to not just his victims but their families and indeed society as a whole. What's wrong with seeing him receive his just rewards? Nothing, assuming one believes that capital punishment can be just. (A big if.) But that's not what leaps out of Volokh's comment; what leaps out is his causal embrace of the rightness of personally extracting death and vengeance upon a criminal. That is, he is applauding the idea that if someone commits a terrible crime against you or the one's you love, you ought to be able to take a hand in bringing that person's crimes back home.

What's the problem with this? As is discussed on both the above threads, Volokh is blurring an important line, a line which keeps the retributive aspect of punishment vicarious, and properly so. This is not to say that there is no place for retribution itself in meting out justice, even retribution of a very confrontational kind. Volokh is correct that eschewing the "deliberate infliction of pain"on the one to receive punishment can undermine and thus corrupt a deeply felt hurt, and to the degree that our or any criminal justice system tends to medicalize or psychologize crime in such a way as to make the desire for retribution itself seem misplaced or wrong, popular support for that system will not last long. Punishment isn't, and shouldn't be, simply about delivering some sort of neutral, merited penalty; there's a legitimate place for the social expression of horror or anger, and that means some penalties ought to be made to serve a larger purpose than merely reforming the offender or, at the very least, keeping them off the street. Discussions of "victim-impact" evidence and testimony goes to show that this point is hardly absent from our own debates over criminal justice, and for all I know Islamic legal and political thought provides some important arguments on behalf of such arrangements as well. But there is a huge gap between making the argument that it is legitimate for a criminal justice system to incorporate the expression of pain by victims and others into the establishment of penalties, and claiming it's good for said victims and others to directly cause pain to the criminal in revenge. That's a line that has more to do with basic law and order than any particular political theory.

You'd like to think that this line would obvious, but I fear it's not, especially given that it appears a kind of vigilante-mindset, which insists that direct action is superior to careful procedure, seems to be winning the day in America (such as in regard to the acceptability of torture). The problem is with making personal feelings of hate and despair not simply a part of a larger retributive argument (that much is probably appropriate and to a degree necessary) but as component of retribution itself. That short-cuts civilization, the very idea that there need to be rules which sublimate our most anguished self-interests to larger goods. It reminds me of that terrible debate back in 1988, when Bernard Shaw asked Michael Dukakis if he'd change his opposition to the death penalty if his wife Kitty were raped and murdered. Dukakis answered like a cold-blooded machine, which cost him dearly. An expression of rage has it's place. But the rage itself is not a justification. To justify actions in a civilized society means a willingness to submit those feelings to civic scrutiny--and, just to be safe, to probably relocate at least some of the actions taken by the civic body away from those who are most interested in seeing them executed.

This isn't an argument against the death penalty--as a friend of mine commented, there is strong reason to doubt the legitimacy of a system "that allows Jeffrey Dahmer to live out the rest of his life in state custody supported by tax payers' dollars (including those of many of the victims' families." I'm for the most part an opponent of the death penalty, but I don't think that it is necessary to turn society into a passionless entity, incapable of saying to some horrible act "we reject you utterly." (It'd be nice if exile were still an option in this world, but it isn't.) Dahmer--and the "desert vampire" too--very well may have deserved that ultimate community sanction. But when it is the community expressing that retributive need, it no longer is simple, potentially law-threatening vengeance. "Vicarious," communally expressed and administered vengeance, isn't exactly vengeance anymore; it's no longer a victim taking what is theirs" from an evil-doer because he and she hurt the victim, etc. Rather, it's society saying, "We cannot tolerate this," which properly sublimates the retributive aspect to a concern for, as I said, basic law and order. To talk casually, as Volokh did, about how he'd personally like to twist the guy's neck, isn't to embrace order; it's to embrace ego-driven retribution, pure and simple, and hence weakens the obstacles in the way of just going all the way to simple vigilantism. Honesty requires that I admit I probably won't lose a minute of sleep over the killing of this murderer. But I would lose a minute of sleep over the possibility that the hurt my next door neighbor feels, however great, is, in itself, sufficient justification for him to commit a killing himself.