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On Tuesday October 29th, former federal prosecutor Mark Osler spoke to Harvard Law students about an issue that has recently drawn increased scrutiny in the United States: mass incarceration.  He specifically focused on the impact of drug policy on incarceration rates. Osler’s position on drug policy changed dramatically from his time at law school, where he avidly supported mandatory minimums for drug sentencing, to his present scholastic work on drug policy reform. Growing up in Detroit Osler witnessed the deleterious impact of drugs on the community; he went back after law school specifically to address this problem. As he outlined his journey for us, he anchored his dramatic ideological shifts in three individuals. The first was a public defender Osler faced in court, who assailed the mandatory minimum policy as a way to fix the city’s drug problem. Later, after Osler began his scholarship in drug policy, Jimmy Carter attended one of his lectures and chided Osler for talking about the issues but not actually doing anything about them. The third individual was an attendee of another talk who pointed out that “sweeping up the wage labor” is an ineffectual way of dismantling the drug trade as a business; the target should instead be cash flow and credit sources. His work as a prosecutor, those three individuals, and that last insight changed Osler’s view of drug policy, especially concerning crack and mandatory minimums.

Since then Osler has refocused his scholarship on the economics of the crack business, collaborating with economists and authoring the article Learning From Crack for the Ohio State Journal of Criminal Law. He learned that crack emerged from a competition among entrepreneurs to develop a cheap and accessible way to ingest cocaine. The crack trade spread throughout the United States due to low barriers to entry and high market demand. Congress and states have tried to address the problem using arbitrary numbers and ratios in sentencing laws that have now become normative markers of “crack dealers.” Osler argues that the weight of narcotics is an inappropriate proxy for culpability; we round up the laborers but fail to dismantle the business. These arbitrary policies have failed to solve the problem and we should refocus our strategy.

Osler says we need to start by getting people out of prison; he encourages the president to use his pardoning power toward this end. For Harvard students, Osler encouraged student work with clemency petitions and cases. He suggested a symposium on campus about narcotics policy and a class/seminar on narcotics as a business. His hope law students will explore and discuss his business approach to the drug trade so that future reform will actual serve its purpose.


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