PRESIDENT'S PAGE COLUMN FOR October, 2000, King County BAR BULLETIN
Are We All On Drugs
In his "Proud to be a Lawyer" article in the October State Bar
News, Jan Eric Peterson reminds us of some of the lawyers who have historically
shaped our society, nationally and locally, including Jan's own father, of whom
he is justly proud. After reading his article, I found myself thinking of the
creative potential that individual lawyers and the organized bar might bring to
solving one seemingly intractable complex of problems – the problems
associated with the sale and use of illegal drugs and the spectacular failure of
the "War on Drugs" that has diverted a huge percentage of our judicial
and public safety resources, spawned criminal activity here and abroad, and
undermined civil society in neighbor nations.
I challenged myself to think about this problem this month, starting with
some quick Internet research. Here is some of what I learned:
Facts are depressing
The web site of "Drug Czar" General Barry
R. McCaffrey, who has headed the office of National Drug Control Policy and who
announced his resignation on October 16th, acknowledges: "Chronic, hardcore
drug use is a disease, and anyone suffering from a disease needs
treatment...There is compelling evidence to support the fact that treatment is
cost-effective and provides significant public safety benefits by breaking the
cycle of drug use and crime", citing a California study estimating that for
each $1 spent in drug treatment, $7 is saved in criminal justice, health care,
or welfare costs that would otherwise be borne by society. Despite that
evidence, of the more than $17 billion the federal government spent on the War
on Drugs in 1999, only $3.01 billion was spent on treatment of the disease and
$2.15 billion on drug prevention efforts, with $12.719 billion going to
"the criminal justice system." What our "criminal justice"
money has bought us is sobering and depressing.
Since 1980, the U.S. prison and jail populations
have exploded, a phenomenon both the Justice Department and the General
Accounting Office largely attribute to the sharp expansion of mandatory minimum
sentences and longer sentences - especially for drug crimes during the 1980s and
for violent crimes in the 1990s. Drug offenders
accounted for 23% of the State prison population in 1995, up from 6% in 1980 and
60% of the Federal population in 1997, up from 25% in 1980. As of Dec. 30, 1998,
there were 1.18 million state prisoners and 123,041 federal inmates for a total
of 1.3 million. Counting the 592,000 jail inmates, more than 1.8 million men and
women were behind bars in the United States by the end of 1998 - an
incarceration rate of 627 inmates per 100,000 U.S. residents - higher than in
any other country except Russia. One of every 160 persons in the United States
was incarcerated in 1998.
There were more arrests for drug offenses in Washington State in 1998
(17,233) than for any other crime except larceny-theft. As any King County
Superior Court judge or litigator can attest, that court is barely able to
maintain a civil calendar because of the resources allocated to drug related
crimes. This year, 39% of all felony filings are for drug charges. Every month
this year more than 300 new drug charges were filed in King County, with an
all-time record of 463 in March.
Clearly, criminalization of the use of drugs has
increased the price of drugs for addicts, who in turn commit crimes to support
their habit. For the most part, the criminal justice system is consumed by
prosecutions of small time drug dealers while the big time traffickers remain
unaffected, and the flow of drugs into the U.S. unimpeded.
Our failed experiment with "getting tough" on drugs is all t he
more remarkable in light of our national experiment with the
Eighteenth Amendment (1920-33). After a gradual decline in the rate of
serious crimes over much of the 19th and early 20th centuries, the number of
crimes in 30 major U.S. cities increased 24 percent between 1920 and 1921.
During the 1920s the homicide rate increased 78 percent, more money was spent on
police, more people were arrested for drunkenness and disorderly conduct and
drunk driving. After an initial decrease in the consumption of alcohol following
its criminalization, the per capital consumption quickly grew to exceed
pre-Prohibition levels.
Criminalization of drug use is not, as many assume, a "liberal"
issue. Consider what Nobel Laureate Milton Freidman wrote in The
Tyranny of the Status Quo:
"Despite this tragic lesson [Prohibition], we seem bent on
repeating precisely the same mistake in handling drugs....
"Consider first the addict. Legalizing drugs might increase the
number of addicts, though it is not certain that it would. Forbidden fruit is
attractive, particularly to the young. More important, many persons are
deliberately made into drug addicts by pushers, who now give likely prospects
their first doses free. It pays the pusher to do so because, once hooked, the
addict is a captive customer. If drugs were legally available, any possible
profit from such inhumane activity would largely disappear, since the addict
could buy from a cheaper source....
"Consider, next, the rest of us. The harm to us from the addiction
of others arises primary from the fact that drugs are illegal. It has been
estimated that from one third to one half of all violent and property crime in
the United States is committed either by drug addicts engaged in crime to
finance their habit, or by conflicts among competing groups of drug pushers,
or in the course of the importation and distribution of illegal drugs.
"Legalize drugs, and street crime would drop dramatically and
immediately. Moreover, addicts and pushers are not the only ones corrupted.
Immense sums are at stake. It is inevitable that some relatively low-paid
police and other government officials -- and some high-paid ones as well -
succumb to the temptation to pick up easy money.
"Legalizing drugs would simultaneously reduce the amount of crime
and improve law enforcement. It is hard to conceive of any other single
measure that would accomplish so much to promote law and order. But, you may
ask, must we accept defeat? Why not simply end the drug traffic? That is where
experience both with Prohibition and, in recent years, with drugs is most
relevant. We cannot end the drug traffic....
"So long as large sums of money are involved - and they are bound
to be if drugs are illegal - it is literally impossible to stop the traffic,
or even to make a serious reduction in its scope.
"Our emphasis here is based not only on the growing seriousness of
drug-related crimes, but also on the belief that relieving our police and our
courts from having to fight losing battles against drugs will enable their
energies and facilities to be devoted more fully to combating other forms of
crime. We would thus strike a double blow: reduce crime activity directly, and
at the same time increase the efficacy of law enforcement and crime
prevention."
Speaking out
Why haven't our local and national legislators acknowledged that this war,
like Prohibition, is a lost cause? Are they afraid of tough talking demagogic
opponents accusing them of being "soft on crime"? In that connection
it is interesting to note that New Mexico's Governor Gary Johnson has received
an outpouring of support for declaring the drug war to have been lost and
calling for treatment, not punishment, of addicts.
Why haven't more judges and police officials spoken out?
Most pertinent to the readership of this Bar Bulletin, why haven't WE?
How can we develop a drug strategy that emphasizes prevention through
education, takes away the incentive for pushers, and replaces criminalization
with treatment? Until we accomplish decriminalization, what about treatment for
the addicts in our prisons and jails who are likely to resume drug usage, and
criminal activity to support it, when they are released ?
I invite any lawyers or judges who want to find a constructive role for
the organized bar on this issue to call, email or write to me. With a small
nucleus, who knows what we might accomplish?
Post Script: I sent a draft of this article to former KCBA president Peter
Greenfield, whose sage advice I often seek. Peter said he remembered a
thoughtful article by former King County Superior Court Presiding Judge Ramerman
on this issue. In searching for Judge Ramerman’s article, I stumbled on a
"President’s Page" column from the December, 1995 issue of the Bar
Bulletin written by then KCBA president Dick Manning, with essentially the same
message as this one. Then Peter found and sent me Judge Ramerman's article from
the January, 1998, Bar Bulletin. After saying that "the most pressing
problem in our criminal justice system [is] the tragedy of the current state of
our drug laws", Judge Ramerman called for "a complete re-examination
by the legislature of our criminal drug laws."
Reading Dick Manning's and Judge Ramerman's articles left me depressed by
the thought that our continuation of a failed policy seems impossible to change.
However, on second thought I realized that those articles may have planted the
subconscious seeds for this one and gave me hope that one more plea may lead
others to a decision to speak up and work for change.
If you want to learn more about this issue, here are some Internet sites
that may be of interest: www.whitehousedrugpolicy.gov.
The official web page of the Office of National Drug Policy;
www.u.dayton.edu/~health/01status/97wood.htm:
an annotated bibliography of law review articles, including one from the
Colombia Law Review attempting (unpersuasively, I think) to make the case
against decriminalization, compiled by Theodore H. Wood of Dayton University
School of Law;
www.druglibrary.org/toc.htm
a comprehensive catalogue of materials compiled by the Schaffer Library
of Drug Policy.
