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PRESIDENT'S PAGE COLUMN FOR January, 2001, King County BAR BULLETIN

DRUGS ON MY MIND (PART 3)

In this first column of the new year, let me first wish each of you health and happiness. Then forgive me for hanging onto a theme from the old year. In my November column I compared our society's failed War on Drugs to the failed national experiment with Prohibition (alcohol:1920?33). The column outlined some irrefutable facts about the disastrous unintended consequences of the War on Drugs and asked others to join in speaking and working for change.

On November 12, the Seattle Post-Intelligencer's Editorial Board forcefully wrote: "As the financial and social costs of incarcerating, instead of treating, non-violent drug offenders mount, it is only a matter of time -- and probably not much of it -- until Washington voters take the matter in their own hands."

The November 13th issue of Newsweek featured a cover story on "America's Prison Generation", reporting that the United States recently passed Russia, which was our only close competitor, as the nation with the highest percentage of its population behind bars - more than two million of our fellow citizens. The story also dramatized the enormous disproportionality of the impact of our drug laws on poor and minority families.

In my December column, I reported about the many judges and lawyers who had called to say the time to find more effective alternatives is now. I asked rhetorically if lawyers and judges could play a leadership role on this issue. Here's what has happened since then:

More than 70 people responded, asking to work with us to find a better way to deal with drugs in our society. The list included 11 superior court judges, a federal Magistrate Judge, several members of the Washington State House of Representatives and Senate, staff members of the state legislature and county council, several prosecuting attorneys, and a spectrum of lawyers in private practice and government service.

At its December meeting of the Board of Governors of the Washington State Bar Association, President Jan Peterson asked the governors to commit the WSBA to join the KCBA in calling for public study and debate toward the goal of finding a fair and effective drug policy. The Board of Governors agreed and appointed Governor Ken Davidson as the WSBA's liaison.

On December 12th the Seattle Times Editorialized "It's time for judges and lawyers to say publicly what many have said privately for years ??? the state's drug laws are out of whack and must be changed.....[P]olitical lemmings in Olympia have been led to believe threat of prison will somehow overcome the effects of addiction. That line of thinking has resulted in distortions in state sentencing laws. A person with a prior felony conviction for a non-violent drug crime gets a longer prison term than persons with prior convictions for many property crimes, and even assaults....No wonder the state's prison population is growing.... Now, drug crime offenders make up the largest single category of the prison population, 21.5 percent....What's needed is the participation of moderates and conservatives from the bench, bar, and especially, law enforcement. Involvement by someone of Maleng's stature and reputation would bring greater credibility to this important effort."

On December 18, more than fifty volunteers, including King County Superior Court Judges Eadie, Fox, Ramsdel, North and Trickey, State Representative Ida Ballasiotes, the Republican co-chair of the Criminal Law and Corrections Committee and a Democrat member of that committee, Ruth Kagi, Joan Mell, from the state senate staff representing Senators Jeannine Long and Jeanne Kohl-Welles, Republican and Democrat members of the Senate Human Resources and Corrections Committee, Dave Boerner, Chair of the State Sentencing Guidelines Commission, Bob Boruchowitz, Director of the Public Defender agency, met for an organizing and brainstorming session. A number of people, including Tim Killian, the campaign manager for several initiative measures and a consultant on others outside Washington, spoke of the evidence from around the country that the people are already far ahead of their elected leaders on this issue. No one disagreed that it is only a matter of time before frustration with the present system will lead to an initiative campaign, perhaps like the one recently passed in California that substitutes treatment for prison for some drug offenses.

The Seattle Times proved to be prescient. We were pleased that King County Prosecutor Norm Maleng and his Chief of Staff Dan Satterberg came to the meeting. At a point when the discussion was at risk of getting bogged down in philosophical questions, Norm said we could talk for days about the underlying facts and philosophies but that a more fruitful beginning might be to look for some short term steps that could be taken to move us forward. Speaking with conviction about our society’s failure to put money into treatment and education and its misplaced reliance on enforcement to prevent drug abuse, Norm suggested that consensus on short term steps might be closer than we think and opined that he and Bob Boruchowitz could probably sit down and come up with some ideas that could be implemented even without legislation. Bob agreed to try. It was agreed that the discussion should include a superior court judge and Dave Boerner. Bob agreed to taken the lead in scheduling the first session and to report back to the group. We'll all await their report.

Surprise! Money is the Key

Over and over again, as we have looked into the options, it has become clear that money is the key. By imprisoning thousands of our citizens for drug offenses we have created a long term drain on our limited financial resources that keeps us from finding the money to do the things most people agree are necessary. While Representatives Ballasiotes and Kagi acknowledged the need for change, both noted that the state’s present budget crisis, itself the result of the initiative process, has compromised the state’s ability to substitute treatment and education for punishment. According to Senator Adam Kline, we have only seen the beginning of horrendous prison costs, with the full impact of the enhanced sentences already handed down starting to multiply in the coming years, with 8,000 new beds needed between 1986 and 2016 at a cost of $75,000 per bed (not counting financing costs) and an annual operating cost of $25,000 per bed.

Since the Sentencing Guidelines Commission will not be proposing any changes until a year from now, I have asked the KCBA Legislation Committee and the Criminal Law Committee to begin drafting possible legislation designed to provide ameliorative options in definitions and sentences until more fundamental changes can be considered. We will not rule out the possible use of the initiative process if the prospects for legislative change seem too far off or superficial band-aids. Former KCBA presidents Peter Greenfield, Mary Alice Theiler, and Dan Gottlieb have agreed to join me as the kernel of a Steering Committee, with Ken Davidson representing the WSBA. We hope to reconvene the larger Drug Law Study/Action Group early in the new year.

In my previous columns on this subject I suggested some web sites where those who are interested to do some boning up. Look into the history America's efforts to control the possession and use of mind-altering substances and you will, I suggest, find a fascinating exploration of pop psychology, political demagoguery, and the triumph of fear over reason. As happened with de Tocqueville 161 years ago, some of the best observations of American society seem to come from without. My web site pick of the month is from the Ottawa (Canada) Citizen Online, which describes itself as "the Ottawa Citizen's newspaper of the future": http://www.thecitizen.com/national/drugs/ Of particular interest might be the two part article entitled "Europe leading the way to smarter drug laws."

It's not too late to get involved!

Whether you agree or disagree with the views expressed in this and my earlier columns, you are invited to participate in the debate. Send an email to the KCBA's Executive Director, Alice Paine AliceP@kcba.org or give Alice 206-340-2575 or me 206-694-1602 a call and we'll put you on the list of interested participants.

P.S. Consider Albert Einstein's definition of insanity: “Continuing to do the same things and expecting different results”

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