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 the 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."
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.