“Second Chance” Mechanisms as a First Step to Ending the War on Drugs

Abstract

In their article “Racial Justice Requires Ending the War on Drugs,” Earp, Lewis, and Hart (2021) argue for the end of our War on Drugs in order to alleviate our reliance on mass incarceration, harm to minority and other affected communities, and the widespread systemic racism that current drug policies perpetuate. In order to achieve this, Earp, Lewis, and Hart (2021) call for a three-part plan: the decriminalization of recreational drugs, expunged criminal records of those convicted of drug-related offenses, and the immediate release for those serving prison time for drug-related offenses. Yet, although their proposal has incredible merit, it is much farther down the road from where we currently stand, and the authors provide little practical discussion regarding how current legal foundations can and should be used to end the War on Drugs. As we hopefully move forward, albeit slowly, toward a new drug policy horizon, it is important to understand what and how existing legal strategies can be utilized now—beginning with those that can aid the thousands of individuals who are currently serving long-term state and federal prison sentences for drugrelated offenses—as viable first steps to ending the War on Drugs. The extraordinary number of people serving longterm sentences for drug-related crimes in the U.S. continues to mount immense financial and human costs. The introduction of mandatory minimums, sentencing enhancements, “three-strikes” laws, and other punitive sentencing laws over the last thirty years has increased prison stays for drug-related crimes by over 25%; presently, over 20% of all state and federal inmates are incarcerated for drug-related crimes in the U.S., and these rates have unduly and disproportionately affected minority communities (Austin et al. 2017). However, legal mechanisms currently exist that can help bring immediate relief to these offenders serving long-term prison sentences for drug-related crimes by creating opportunities for their early release. These strategies, which already exist at different state and federal jurisdictional levels, can be used to provide “second chances” to drug offenders serving sentences that are often unnecessary, excessive, and out-of-line with societal views on sentencing practices (Renaud 2018). Indeed, evidence suggests that long-term sentences for drug-related crimes do not significantly affect public safety and do little to advance justice (Mitchell et al. 2017). As such, in recent years, public and policy sentiments toward the punishment of drug-related crimes have begun to change, leading to the political and legal reconsideration of the benefits of long-term incarceration as an approach to punishing drug-related offenses (Berryessa and Krenzer 2020; Vitiello 2021). Thus, arguably, “second chance” mechanisms, ranging from clemency to good time credit systems, are established programs that can and should be used as one of our key first steps to ending the War on Drugs. “Second chance” mechanisms range in how they can shorten the time served of long-term incarcerated drug offenders. For example, perhaps one of the most potentially effective “second chance” mechanism for those currently long-term incarcerated for drug offenses in the U.S. may be the retroactive application of sentencing reforms; such reforms help to ensure that recent legislative changes that “roll back” punitive sentencing laws at both state and federal levels are retroactively applied to individuals who are currently