The Drug War: Prohibition Fails Again

George Bushnell Jr. on decriminalizing drugs and the lessons of history

Legal war on drugs Credit: powerofforever/Getty

George Bushnell Jr., the incoming president of the American Bar Association, is the latest to add his name to the growing numbers of those arguing for a radical change in the nation's drug policies. A trial lawyer in Detroit for more than 40 years, Bushnell spoke in favor of decriminalization in a widely circulated article in USA Today. Bushnell, whose one-year term at the helm of the ABA begins this month, talked to Rolling Stone from his law office in Detroit.

You've kicked up quite a bit of dust in the press with your views on the decriminalization of drugs. Did that surprise you?
Well, it didn't surprise me, because it is the kind of thing that can be pushed and highlighted by the press. It's a sound-bite land of thing, so far as the press is concerned. What did surprise me was the lack of reaction to it.

What do you mean by that?
I fully expected after the USA Today article came out that the American Bar Association would be getting resignations and irate letters, and it's been absolutely quiet.

The ABA's stance in favor of choice and abortion rights a couple of years ago was quite an incendiary issue among many of its members.
Indeed it was, and it still has its lingering moments. Every now and again, a member wants to resign or give us hell for that position. But thus far and, indeed, as late as this morning, because I just checked in anticipation of this question coming up, the ABA hasn't had a letter.

What does that suggest to you?
Two things. One is that the question of decriminalization of drugs is not as controversial as conventional wisdom would deem it to be. Second, that decriminalization is recognized as an issue that really ought to be debated and talked about openly. There may be – hell, there are – people who are deeply and legitimately opposed to decriminalization, but even they, I believe, recognize the need to discuss it and to come to some sort of resolution on that problem, because what we're doing now is not working. And it hasn't ever worked.

You said in USA Today that your views on decriminalization were ones you had held for a long time, some 30 years. How did you come to hold these views?
First let me note that these are my personal views, and they're not the views of the American Bar Association. I don't speak for the ABA on this. We have no policy.

Now, why have I held it this long? Well, I'm an old crock, 70 years old, and as a very small kid, I can remember Prohibition. I remember the fact that my father, who was then on the Supreme Court of Michigan, would not allow alcohol in the house, or would not stay at a function where alcohol was served, because it was against the law. But just down the street, in the basement of Al Weeks' house, we used to go down and look at his dad's still. It was a magnificent still, I haven't seen one like it ever since.

Prohibition was a very vivid childhood memory, and what I remember is that it didn't work. Prohibition caused a lot of crime; the attempts to enforce it were ineffectual. Once alcohol was again legalized — the 18th Amendment repealed, one of the big platforms of the Democratic Party in 1932 — that kind of crime went out the window.

That memory has an awful lot to do with the position that I came to about 30 years ago, when marijuana was the big issue. Again, prohibition wasn't working. Everybody was toking. And it seemed to me to be just goddamned dumb to have a law on the books that could not be enforced and wasn't being acceded to by almost everyone of a certain age group. It just seemed to me to make no sense.

As the years have gone on, as I've watched the various efforts to curtail the use of hard drugs and soft drugs through the criminal system, it still makes no sense to me. Not to mention the increase in crime that results from this. I'm absolutely convinced that the burglary and the break-in rate would go down, there would be less assaults, there would be a helluva lot less robberies and muggings, because people are doing that in order to feed the habit. I'll tell you, if tobacco ever hits that list, I'll be out stealing hubcaps with the best of them.

The crime bill that's moving along in Washington seems to repeat most of the mistakes from the war on drugs – mandatory minimums, three strikes. Do you see any progress in it at all?
There is some. The inclusion of the Racial Justice Act is something that — if it is in the final bill — is a step forward. The act enables a defendant in a capital crime to introduce evidence to show that there is a pattern of death sentences in that particular jurisdiction that operates against minorities. If they can show that pattern, then the burden shifts to the prosecution to try to prove that it's wrong; it gives defendants an opportunity to point out that there is a significant majority of the population on death row that is African American, or other minorities, as opposed to Caucasians.

That is a very necessary thing. There are other pieces of the crime bill that we at the ABA support. The mandatory-minimum-sentence provision in the bill as it now stands provides a safety valve. That safety valve says if there is a nonviolent, low-level offender, then three strikes and you're out does not apply. Of course, the ABA has supported the repeal of the current mandatory minimum sentences, which are crowding the courts and, particularly with respect to drug cases, crowding the prisons and forcing the back doors to be opened for violent offenders to make room for the people who are convicted of possession of, say, a small amount of crack.

We support the ban on the 19 assault weapons listed in the crime bill. There is also a provision in the crime bill, at long last, for drug treatment for state and federal prisoners. It's a modest provision compared with the balance of the bill, but we do support that, very definitely. We also support increased drug education and treatments that are part of the bill.

We oppose the three strikes and you're out unless it focuses on truly violent offenders. We also oppose the binding sentencing guidelines, which are rigid and mechanical. The ABA has never addressed directly the question of more prisons, which is in the bill. But currently, with mandatory sentences – which are not just federal, every state has got them now, there's been a copycat crime they've committed in passing mandatory minimum sentences – if there are going to be mandatory sentences for nonviolent crimes without giving courts the discretion to take into account all of the other factors that are evident in most criminal cases, then there are going to have to be more prisons. So, by indirection, we're not enthusiastic about more prisons at all.

The war on drugs puts a lot of stress on the criminal-justice system, from courts to cops to prisons.
That's right. It's a helluva lot of money to be spending on the effect without ever looking at the causes, such as poverty, for God's sake. More often than not, the use of drugs is a cry for help. And it's a cry for help because the user is saying things are so bad that I can't face them. And so I'm going to escape for a little bit of time. As long as we don't look at issues of poverty or health care – the issues that are frustrating the public of this country – and rely simply on the criminal system, we're being suicidal.