That's a tough one. And I think these sentences need to be reviewed and some of them revoked.
However, the underlying problem was that these people who are currently in jail were doing something that was illegal at the moment. Their sentences need to be revised, but it's probably not something I'd exonerate from all guilt.
According to the Ex Post Facto law [1] definition, a court could issue amnesties or pardons for scenarios like this, but I don't think it would be an automatic process over all convictions.
Nixon advisor John Ehrlichman told a journalist that the main purpose of the War on Drugs was to attack Nixon's "enemies" and that they knew the WOD was based on lies about drugs:
> "You want to know what this was really all about? The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar Left, and black people. You understand what I'm saying? We knew we couldn't make it illegal to be either against the war or black. But by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did."
90% of the world's heroin supply is from the Poppy fields in Afghanistan, and everyone knows where those fields are. Do we (the USA) destroy those plants in our Drug War efforts... nah. Some reports say US troops even guard them.
I believe it was in the book "Everything We Had" (although I am not certain of the source, because I read about it a while ago) that the only reason we were in Nam, was so the CIA could protect the Poppy plants which they needed to fund their Black Ops.
This point is controversial, in, as far as I know, we have to take someone's word that Ehrlichman made this quote.
While Nixon is remembered for "war on drugs", the actual substance of his policies seems to be different than what people think it was:
>...Their consensus is that because he was dramatically expanding the U.S. treatment system (by 350% in just 18 months!) and cutting criminal penalties, he had to reassure his right wing that he hadn’t gone soft. So he laid on some of the toughest anti-drug rhetoric in history, including making a White House speech declaring a “war on drugs” and calling drugs “public enemy number one”. It worked so well as cover that many people remember that “tough” press event and forget that what Nixon did at it was introduce not a general or a cop or a preacher to be his drug policy chief but…a medical doctor (Jerry Jaffe, a sweet, bookish man who had longish hair and sideburns and often wore the Mickey Mouse tie his kids had given him).
> are currently in jail were doing something that was illegal at the moment.
"Sorry, we weren't enlightened 20 years ago, so you're going to stay in jail" is an embarrassing cop-out. This is a systematic flaw in the legal system, and is unjustified. If it took decades to figure out that marijuana was wrongfully illegal, then those persecuted under such a law should be removed from incarceration at once. How can it be any other way? This is common sense.
Keeping people in prison for actions now known to be harmless is a terrible and embarrassing flaw in moral structure.
Maybe if a law is found outright unconstitutional, sure, exonerate those who are serving time for it.
This isn't the case with marijuana. No conclusion has been reached that it is "wrongfully illegal," it's just not something we want to continue prosecuting for.
This does not excuse the actions of those currently in prison for drug offenses-- we aren't punishing them because marijuana is/was illegal, we're punishing them because they decided they didn't have to abide by the law at the time it existed.
> No conclusion has been reached that it is "wrongfully illegal,"
The same could be said about being black, or gay, or whatever.
I mean, if alcohol is a legal and regulated drug there is absolutely no reason marijuana shouldn't be too. This should be obvious to anyone who's drank till they passed out and also smoked weed till they passed out.
> we're punishing them because they decided they didn't have to abide by the law at the time it existed.
Should we punish lawmakers for implementing oppressive laws which prevented good people from pursuing viable businesses? Why can't there be accountability in the reverse direction?
We can't criminalise making mistakes, even if it is lawmakers who are making them.
I see wisdom in a general amnesty for light drug crimes if it is decriminalised; but it isn't like there is a double standard being applied here. This is how a fair legal system works - the consequences of your actions are clearly known when you act, and you face the consequences of your actions once the legal system catches up to you.
you are at once arguing "we can't criminalise making mistakes" and "you face the consequences of your actions when the legal system catches up to you"
The first you apply to the elites, and the second to everyone else.
Only in the case of the elites are we talking about serious, intentional, and known in advance to be illegitimate, irreparable harm to millions of people's lives.
But its just a "mistake", but you demand those who perpetuated victimless crimes continue to suffer.
There's a difference between a mistake and violating the law. If the lawmakers have knowingly voted for an unconstitutional law, they should be persecuted, because they violated the law. If, on the other hand, they had merely voted for an unwise law, it's a mistake that shouldn't be persecuted.
Also, I find it curious that you single out lawmakers and forget the public that voted them in on anti-drug platform. Should we persecute all Nixon voters as well, for example?
Actually, you'd be keeping people in prison who you know have a disregard for the law, and decide for themselves what they think is okay. They are criminals, they broke the law at the time, and as such, are people that deserve to spend time in prison.
Of course, that's a very broad way to think of it. I'm sure for this particular topic there are lots of cases of outright discrimination which means people are serving sentences for marijuana-related laws that just aren't helpful to society at all (probably detrimental).
So, you may be right regarding this particular law, however, I think it is a very dangerous precedent to simply pardon anyone who committed a crime, for which that act is now legal.
If someone believes something that's currently illegal should be made legal, there are non-anarchist ways to deal with it than simply disregarding authority and committing a crime.
You can apply the same logic toward civil disobedience and people ignoring unjust laws during the civil right movement era or ghandi's era.
I think many would agree that kind of 'law breaking' should be cleared, and they apply the same logic to non-violent drug offences.
There is also a good segment who were forced into plea bargains due to the structure of the US legal system, the pattern of racism in arrests, convictions, evidence planting and so on. We know a chunk of those people are in jail for bullshit reasons, and thus the push towards releasing these people and removing the records.
What is this dangerous precedent? I struggle to think of a reasonable hypothetical scenario where it is just to continue punishing someone for something which isn't a crime. On the other hand, there are actual thousands of people locked in confined spaces for acts that society no longer believes merits locking people in confined spaces.
But, you say, they are the kind of people who disregard the law so we should keep them there anyway. They are in prison because of a specific crime, not their general audacity to defy the state. Imprisoning someone because of an error and continuing to do so after it has been realized serves no societal purpose and is a cruel and excessive use of force.
Marijuana was explicitly prosecuted [edit: criminalized] more aggressively to target certain groups of people. https://www.cnn.com/2016/03/23/politics/john-ehrlichman-rich... The laws were never just and that's why the "criminals" should be exonerated.
Not if the law is corrupt. Would you call people who "committed" same sex intercourse criminals if the place they did it had such laws that it was a "crime" to do so? What about people of which presence was declared unlawful because of their race and administered death penalty on the spot?
I've been thinking about that too. In Virginia we had a long-time sheriff who was a homosexual and for most of his office, homosexual acts were serious felonies. He'd also been brought up on charges of kidnapping and some kind of attempted sodomy - while in office - but to deal with this they moved the trial to a rural town with an all white jury who would see the nonwhite victim in a predictable way. So much for equally applicable protection of and liability to the laws. Political patronage trumped the rule of law here.
It's a tricky subject though. In the US, it's been used to bring judgements closer to what we consider legal today, like refusing to convict on the Fugitive Slave Act or alcohol control laws during prohibition. But there are also cases of all white juries refusing to convict for hate crimes despite obvious evidence.
Should that maxim become universal standard, I don't know that we would be better. I think you could make a case that at some level, every single law is corrupt, especially if we allow for relativism (every law will be in someone's opinion, corrupt). The word loses all meaning at that point.
I think reasonable people can tell the difference between something they wouldn't personally do and something that should be illegal because it hurts other people. There's not really a slippery slope in GP's argument.
The point of the discussion, that we're keeping a bunch of people locked up for violating laws that we have recently decided were unjust, isn't relativistic at all. In a just society those people would be freed immediately.
I agree with you, but just because we believe that doesn't make it common sense or "just." To someone else, the idea that someone who broke the law would be released simply because the law changed is a violation of justice (the ex post facto argument). The fact that I personally think it's an unjust outcome to leave them in jail (or throwing them in jail in the first place), doesn't mean that my opinion is the only correct one (I'm not a strict moral relativist, but I concede they have some good points).
There are some values more fundamental than others. One might be that inconsistency or hypocrisy is bad.
One might stipulate that whether marijuana should be illegal isn't an absolute that can never change.
But if it is in accordance with our values that it should be legal now, and this is our best attempt at instituting just laws, then leaving people in jail for reasons we don't currently think are valid is relatively worse than any arbitrary rule about drugs.
Just because you don't know for sure what is truly and absolutely right doesn't mean you can't stop doing things you know are truly and absolutely wrong.
Agreed, I think this is where I generally fall as well. Pragmatism as a philosophical discipline is often criticized as lacking a purity, but at some point we have to stop philosophizing and actually make policy.
I think a lot of nasty laws we have are a consequence of voters not being able to distinguish between “I don’t like this” and “this should be illegal for everyone“
> people who are currently in jail were doing something that was illegal at the moment
But consider that their actions are the reason why marijuana is becoming legal. The public sentiment against the War on Drugs is partly or mostly due to outrage the public felt at long sentences for possessing or dealing in marijuana. The people who did the most to get the laws overturned (even though they did it unwittingly) do not benefit from the changes. Everyone should benefit from the relaxed laws going forward except for the people who suffered to make it possible?
I believe it is morally wrong to keep people imprisoned for actions that are now legal, especially given the viciousness of our penal system. This is a great injustice of our time.
If you simply follow the basic compassionate principle that you should lock up as few people as necessary for as short a time as necessary to maintain the law then the answers are obvious for both cases:
If someone committed an act which was illegal at the time and is now legal, they should be freed.
If someone committed an act which was legal at the time and it is now illegal, they should not be prosecuted.
They're not two sides of the same coin at all.
EDIT: This compassionate principle is known as "lex mitior", which simply means that you should apply the mildest version of the law (from the perspective of the accused) in these cases. This is also in line with the widely accepted innocent-until-proven-guilty principle.
I don't see them as the same at all. If something is made legal, it indicates that the act is OK and that the person should not _continue_ to be punished. On the other hand, people should only be prosecuted for acts that were illegal at the time they were committed - it isn't equitable to prosecute people under laws they were not subject to at the time of the action, and even on a practical level it is necessary for maintaining trust in the law.
Would you hold the same position if instead of being imprisoned for drugs, they were imprisoned for homosexuality or marrying someone of a different race?
Depends on what you view the law for. Personally I think the law is a tool that acts as a proxy for group morality, and is useful as much as it serves that aim. The law itself is not sacrosanct and can be wrong, which is why we revise it. Under this view, those who broke a law we then get rid of should be released, as we have agreed that the law was wrong, we also have agreed that they were right. If the law itself is not put on a pedestal, then if the law was wrong then those people who broke it should also no longer be regarded as criminals as we are simultaneously admitting that it was also wrong to have labelled them as such in the first place.
Ex post facto applies both ways - you can do something legal today and be punished in the future if it becomes illegal (UK tax law has some good examples of this).
It would be inconsistent to say past crimes should be revoked if the law changes, but present legal acts cannot be retrospectively classed as illegal if the law changes in the future. That's a contradiction I'm sure many people operate under however (myself included).
Ex post facto is not required to operate the same way for new laws vs laws being removed. In fact, there are good reasons for when criminal laws are changed to automatically review people prosecuted under them. The law was made for people, people weren't made for the law.
There doesn't appear to be any law of physics or higher power that enforces us to make these two things consistent, why would you assume they have to be?
However, the underlying problem was that these people who are currently in jail were doing something that was illegal at the moment. Their sentences need to be revised, but it's probably not something I'd exonerate from all guilt.
According to the Ex Post Facto law [1] definition, a court could issue amnesties or pardons for scenarios like this, but I don't think it would be an automatic process over all convictions.
>> Disclaimer: IANAL
[1] https://en.wikipedia.org/wiki/Ex_post_facto_law