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PRESIDENT'S PAGE COLUMN FOR December, 2000, King County BAR BULLETIN

DRUGS ON MY MIND (PART 2)

Maybe We’re Not On Drugs, Only Asleep Or Timid

Last month in this column I described the research I had done on the War on Drugs. The article summarized my conclusions about the disastrousun intended consequences of the criminalization of drugs, comparing it to the failed national experiment with Prohibition (1920-33). If you missed it you can find it at www.kcba.org/DrugWar.htm.

From discouragement to hope

The ideas I expressed were hardly novel. As I said in last month’s column, I found it discouraging that then - president of the King County Bar Association Dick Manning wrote about the same problem in 1995 but nothing happened. Similarly, in 1998 then-Presiding King County Superior CourtJudge Ramerman wrote that “[t]he most pressing problem in our criminal justice system [is] the tragedy of the current state of our drug laws. ”Still nothing happened. Although I invited lawyers and judges seeking aconstructive role for the organized Bar to contact me I didn’t hold out great hope. Indeed, I wasn’t sure if anyone ever reads the “President’s Page” column in the Bar Bulletin!

Last month’s discouragement has been replaced by this month’s hope. Within days of the publication of last month’s Bar Bulletin, I started getting phone calls and e-mails. Without exception, the messages enthusiastically agreed with the proposition that the time has come to change our drug laws. Among the letters was one from Jan Peterson, President of Washington State Bar Association. Although Jan said he could not yet speak for the Board of Governors, as an individual he could be counted on to join in an effort to change the status quo. Similar expressions have come from numerous lawyers and active and retired Superior Court judges. I have even been stopped on the street and in office building lobbies and elevators by lawyers who have thanked me for raising this issue.

Finally, at a recent breakfast of nearly 30 former KCBA presidents hosted by Lucy Isaki, not a single former president dissented from the view that the time has come for the KCBA to work to generate a public discussion of our existing drug laws. I was further encouraged that a number of the former presidents have since told me they want to work on this issue.

Is the time ripe?

Can we generate enough interest to get the citizenry tore-examine the criminalization of drugs? If so, can we generate a consensus that the criminalization of drug use has failed to work and caused even greater social problems? Finally, even with a broad consensus, can we overcome the public’s fear of the unknown and succeed in changing the law? Events from around the country suggest that the positive response to my column was not a fluke and that the answer to these questions may be “yes.”

I am told by a King County Superior Court judge that when prospective jury members are asked on voir dire if they, a family member, or aclose friend have been affected by drug or alcohol addiction, the hands of anywhere from 25 to 75 percent go up and that juries intuitively understand that the defendants in drug possession cases need treatment, not punishment. Consequently, King County juries are starting to grasp any excuse to acquit in prosecutions for drug possession if the defendant has not hurt anyone else or engaged in other criminal activity.

Last month the people of California voted to require that drug users be treated, not imprisoned. That would be a modest first step for Washington. But we should not delude ourselves into thinking that treating drug users instead of imprisoning them will solve the problem. As Milton Friedman has written “[s]o long as large sums of money are involved—and there 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.”

The wisdom of Professor Friedman’s comments seems to be confirmed by the latest pronouncement of our “Drug Czar.” On November 21st, the Associated Press quoted General McCaffrey as predicting a “giant increase” in Colombian coca production when CIA estimates are released in February, not withstanding the $1.3 billion U.S. taxpayers have committed to “Plan Colombia.” Ominously, General McCaffrey acknowledged that Venezuela, Brazil, Peru, Ecuador and Panama are expected to suffer “spillover effects,” for which we have committed $180 million of the $1.3 billion “aid package.”

What no one advocates

A relatively small, but predictable percentage of people in all cultures become addicted to drugs. People from virtually all cultures throughout history have used mind or mood altering substances — whether alcohol, tobacco, or other forms of drugs. Both proponents and opponents of the criminalization of drugs agree that people who use meth-amphetamine, cocaine, heroin, opium and other addictive drugs can become risks to other people and to property. In questioning the wisdom or effectiveness of prosecuting people for possessing or using such drugs, no one is suggesting that crimes against people and property by persons “on drugs” should not be prosecuted as criminal acts.

The most common and dangerous addictive drugs throughout human history have been alcohol and tobacco. It is now well understood that alcohol and tobacco are dangerous to the health of the user and that tobacco is dangerous to the health of those exposed to “second hand smoke.” In the case of alcohol, the potential for violent or irresponsible actions by aperson “under the influence” is similar to the potential of someone using the other drugs that remain criminalized.

Whatever we do in responding to the “drug problem,” we must continue to ask the simple question, “will it work?” In the case of the drug called alcohol,it didn’t work. It took the Twenty First Amendment to repeal the Eighteenth Amendment 13 years later to rid us of the disastrous consequences of Prohibition. In the case of the drugs that remain criminalized, our policies are not working. Fortunately, our drug policy and laws will not require a constitutional amendment to change.

Can lawyers lead on this?

The King County Bar Association has created an email list to link all those who have expressed an interest in working on the impact of our drug laws on our justice system. Without taking a position on decriminalization of drugs before the issue is studied and debated, the KCBA’s Trus-tees have authorized me to send last month’s column to the Seattle Times and Post-Intelligencer as an op-edpiece in my own name, identifying me as President of the KCBA and indicatingthat the KCBA wants to encourage a broad public debate on this issue. The KCBA Bench Bar Conference Committee is planning, as one topic to be substantively discussed at its March 3, 2001 conference, a panel discussion and debate on the concept of decriminalization. A special KCBA Task Force, possibly together with representatives of the Superior Court Judges Association, prosecutors,defenders, mental health and treatment professionals, probation officers, legislators, and such community groups as Physicians for Social Responsibility,is also under consideration.

The “trim tab”factor

Buckminster Fuller used to talk about the “trim-tab” factor. On the rudder of a huge ship there is another mini-rudder called the trim-tab. By moving the trim-tab ever so slightly, the rudder is slowly moved, which eventually changes the whole direction of the ship.

Could changing our drug laws be a trim-tab factor that would allow us to decrease drug use and drastically reduce an incarceration rate second only to that of Russia? Is it possible that hundreds of thousands of our fellow citizens now in our county, state and federal prison systems could begiven treatment instead of punishment for their illness? Is it possible that we could stop the cycle of users becoming pushers, and pushers becoming millionaires and negative role models? Can we imagine what the billions of dollars we spend on prosecution and punishment could do if they were used for education and prevention?

Get involved!

Whether or not you agree with the views expressed in this and last month’s column, you are invited to participate in the debate. Sendan e-mail 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. You may also follow what’s happening by checking the KCBA web site atwww.kcba.org/DrugWar.htm.

The ideal out come of a true public debate would be for abroad consensus for legislative change to emerge among community leaders and opinion makers, for the legislature to act responsibly to change our state drug laws, and for our representatives in Congress to become leaders in the reassessment of our national drug laws. Maybe we can prove to ourselves and ourcommunity that we aren’t asleep or as timid as we appear.


Fred Noland is the 2000-2001 president of the King County Bar Association and an attorney with MacDonald, Hoague & Bayless. He can be reached at (206) 622-1604 or FredN@MHB.com

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