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A Drug War Truce?

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The disconnect between the administration's rhetoric and its funding priorities is less surprising when you consider whom Obama has put in charge of America's drug strategy. Under Bush, the drug czar was a Cabinet official with a direct line to the president. But under Obama, Kerlikowske and the ONDCP are overseen by the vice president's office. Kerlikowske tells me that it was Biden who tapped him for the post. And it was Biden who appeared with Kerlikowske in front of reporters announcing his nomination. The drug czar feels confident that he has "the president's ear" — although he concedes that he has had only one, brief meeting with the president. But he knows who's running the show: "The person who has the most intimate, detailed knowledge on this issue — who authored the legislation and has stayed on top of this — is clearly the vice president."

Since the early years of Ronald Reagan, Biden has been the Democratic Party's most committed drug warrior. "If there's anything you don't like about the drug war, it probably goes back to Joe Biden," says Zeese, the reform advocate. As the top Democrat on the Senate Judiciary Committee in the 1980s, Biden steered passage of laws requiring "mandatory minimum" prison sentences for drug crimes — including the wildly disparate sentencing for crimes that mandate harsher sentences for crack use than for cocaine in its powdered form. Biden was also a pivotal force in creating the Office of National Drug Control Policy and sponsored the notorious RAVE Act, which levels criminal sanctions against concert venues for the drug use of their patrons.

While Biden's oversight at ONDCP appears likely to forestall true reform of the War on Drugs, the vice president at least appears committed to reversing one of the worst excesses he helped create: the 100-to-1 sentencing disparity for drug users caught with crack versus powder cocaine. Under current federal law, possessing five grams of crack with a street value of $350 is subject to a minimum sentence of five years — the same penalty that applies to carrying a half-kilo of powder worth $37,000. More than 80 percent of crack offenders behind bars are black. Testifying before Congress in May, Assistant Attorney General Breuer urged lawmakers to make prison sentences for crack use the same as those for cocaine, saying the racial disparity "deteriorates public confidence in our justice system."

Sen. Jim Webb has proposed going even further, calling for a federal commission to conduct a top-to-bottom review of the nation's sentencing laws. Drug-policy reformers see the commission — which has attracted bipartisan support with its broad, politically palatable focus on criminal justice — as a means for truly ending the War on Drugs. "The steep increase of people in prison is driven by changes in drug policy and tougher sentencing, and not necessarily an increase in crime," Webb says. "We need to treat drug addiction — and to separate drug addiction from prison environments to the extent that we can."

New York has taken the lead in sentencing reform, rolling back the Rockefeller drug laws that helped launch the nation's prison boom. Passed in 1973 following a rash of property crime during New York's heroin epidemic, the Rockefeller laws shifted the approach to addiction from public health to punishment, mandating sentences for possession of small quantities of drugs that rivaled those for second-degree murder: 15 years to life. Under the new reforms, judges now have leeway to steer even repeat offenders into rehab rather than prison. The state is also using federal-stimulus money to establish a system of drug courts and treatment programs — an investment that New York authorities believe will save the state $250 million a year in incarceration costs. "We're replacing incarceration with treatment," says Gov. Paterson.

The governor, who has rarely spoken publicly about his personal views on drug use, says he believes that marijuana causes less harm than alcohol. "You can really document what the excesses of alcohol have done on the roadways of our country, and you can't really do that with marijuana," he says. But asked whether he could support legalization of the drug, Paterson backs off a little. "I don't know if I would want to support the legalization of marijuana," he says. "But I'd certainly be open to a conversation on the subject."

That's a stunning admission by a sitting governor — one that indicates just how far the debate over drug policy has shifted in recent months. "It's time, obviously, to force the conversation," says Tom Ammiano, the California-assembly member who introduced a state measure this spring to tax and legalize pot. The bill has drawn support from some on the right, who believe that decriminalizing marijuana will actually increase the state's control over who has access to the drug. "It's easier for children to get marijuana than alcohol," says Jim Gray, a retired Republican-appointed judge from conservative Orange County. "Why? Because alcohol is controlled by the government, and marijuana is controlled by illegal drug dealers who don't ask for ID. We've got this huge, colossal bureaucracy to fight the War on Drugs — to keep drugs away from our children — and it is absolutely having the opposite effect."

Far from ignoring the issue, Gov. Schwarzenegger has encouraged an active debate on the proposal, calling for a major study to examine the benefits of legalization. In the end, he conceded recently, the issue will likely be decided at the ballot box. "It could very well go on an initiative one day and ask voters directly," Schwarzenegger said. And then he said something extraordinary. Something no politician, let alone a Republican, could have gotten away with a year ago.

"If voters make that decision," the governor said, "that's fine."

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