This weekend, a former federal judge delivered a scathing rebuke on the Drug War—the same one she spent 17 years waging. In a brief talk at The Aspen Ideas Festival in Colorado, Nancy Gertner—who was nominated to the bench by Bill Clinton in 1994— highlighted many elements of the failed federal policy. She even went so far as to compare the effects of the Drug War to the aftermath of World War II, suggesting a similar post-war strategy to deal with the modern catastrophe. Gertner said she handed down 500 sanctions during her tenure, the vast majority of which were unjustified.
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“80 percent I believe were unfair and disproportionate…I left the bench in 2011 to join the Harvard faculty to write about those stories––to write about how it came to pass that I was obliged to sentence people to terms that, frankly, made no sense under any philosophy,” she said.
She also detailed well-documented, racist elements of the Drug War:
“This is a war that I saw destroy lives…[It] eliminated a generation of African American men, covered our racism in ostensibly neutral guidelines and mandatory minimums which were only applied or largely applied to African American men…[and] created an intergenerational problem––although I wasn’t on the bench long enough to see this, we know that the sons and daughters of the people we sentenced are in trouble, and are in trouble with the criminal justice system.”
The devastation is so bad, she argues, it is comparable to that of World War II:
“We were not leveling cities as we did in World War II with bombs, but with prosecution, prison, and punishment.”
Based on this comparison, she advocates a program similar to the Marshall Plan—which helped rebuild a war-ravaged Europe following the war— to help resolve the disastrous ramifications of the decades-long War on Drugs.
“The Marshall Plan was unique because it set out not to punish those who had been defeated—and sow the seeds of future rebellion and future rage—but to rebuild, to look to the future and not to the past,” she said.
Gertner has attempted to repent for her own part in the Drug War. With the Gertner Clemency Project, she is reviewing the list of people she personally sentenced to find those who deserve clemency. Nevertheless, she acknowledges this is not enough.
“The impact of the criminal justice system that I presided over in my small way was systemic. Our response to it has to be systemic,” she argued.
In her own advocacy of a Marshall Plan for the Drug War, Gertner calls for a four-pronged approach: 1. Physical, to release victims of the Drug War from prison; 2. Economic, to rebuild communities destroyed by drug policy; 3. Psychological, to deal with the trauma of the war; 4. Political, to restore political participation.
Though the Drug War is still very much in effect, Gertner is part of a growing number of former members of law enforcement and the justice system who now oppose the draconian policies.
As Gertner said,
“We finished a war on drugs, and though we were not remotely the victors of that war, we need a big idea in order to deal with those who were its victims. We need a plan to reconstruct neighborhoods, not countries to be sure. We need a plan to stop punishing, as which is all that [sic] we have done in the past…and to start rebuilding.”
