Justice in Jeopardy-Drug Law Reform and Justice Funding
By John Cary
Insanity is doing the same thing over and over again and expecting a different result.
-Attributed to Albert Einstein
2001 - KCBA Concluded that Drug Law Policy is Fundamentally Flawed
In his October 2000 President’s Page, Fred Noland wrote about the failure of the War on Drugs. He appealed to lawyers and judges to speak out and, more, to play a constructive role in bringing sanity to drug policy. Fred’s appeal led to the Drug Policy Project, a coalition of 16 legal, medical and civic organizations led by KCBA.
In December 2001, after a year’s study, the Project presented its report, Is it Time to End the War on Drugs? The 120-page report (documented with 410 footnotes) concluded that current drug law policy is fundamentally flawed and causes greater harm to society than the drugs it targets.
The 2001 report and KCBA’s resolution adopting its conclusions are the foundation of the Project’s current resolution-the 2004 resolution-that calls on the legislature for a transition from the current criminal sanctions model to a public health model whose guiding principle is harm reduction.
Let me recall a few of the major points that set the stage for the 2004 resolution. The criminal sanctions model came into effect with the Controlled Substances Act of 1970. When 18 years of enforcement under that law did not solve the drug problem, the government resolved to use the same hammer but with greater force. The federal Anti-Drug Abuse Act of 1988 dramatically ratcheted up sentences with a goal of a Drug-Free America by 1995.” Its policy was “no substitute for total victory.”
Now, nearly 10 years after the deadline, eight percent of Americans regularly uses drugs. Since the 1980’s the average prison time for many drug offenses has doubled. Arrests for drug offenses have gone up by 345 percent while arrests for other crimes are steady or only slightly increasing. About 25 percent of state inmates are serving time for non-violent drug charges (up from six percent in 1980 and 17 percent in 1990).
Drug laws have given the US leadership in per capita imprisonment rates. Yet drug use remains at the same level (or perhaps a bit higher) and starts at younger ages. Criminal sanctions have not reduced drug use. The current model has not achieved its goal.
The current model is not cost-effective. Studies show that an investment of one dollar in enforcement results in a loss of 48 cents in societal benefits (as measured by crime rates, violence, medical care and lost productivity). In contrast, an investment of one dollar in treatment results in a gain of $7.46. Treatment reduces drug consumption four times as much as the same investment in law enforcement and seven times as much as investment in longer prison sentences.
As with all wars, the War on Drugs inflicts collateral damage. High profits have created an enormous black market ($400 billion annually) and increasing levels of violence. Between 20 and 40 percent of murders are thought to be the result of black-market drug business. The drug trade destabilizes entire countries - think Columbia.
Two days after his election, the president of Afghanistan said that the drug trade is a greater threat to his county than civil war, Russian invasion, or foreign interference. Recent estimates suggest that 30 percent of Afghanistan’s families are involved in poppy production and that 60 percent of the county’s gross domestic product comes from heroin and opium. In our country, the imprisonment of large numbers of young men, largely from disadvantaged communities, tears apart lives, families and communities.
The December 2002 forum on Race, Class and the War on Drugs, sponsored by Loren Miller Bar Association, KCBA, and others presented shocking evidence of racial disparities resulting from drug laws. Surveys consistently show that drug use occurs at roughly the same rate for Caucasians and African-Americans. African-Americans represent five percent of King County’s population. Yet they receive 50 percent of the drug sentences.
The sentence-to-population ratio for African-Ameri-cans is 25 times higher than that for Caucasians. 23 percent of prison inmates in Wash-ington are Afri-can-American; their share of the state’s population is only three percent. Even though drug use is the same across Caucasian and African-American populations, criminal sanctions, which should bear the same ratio to use, are vastly different.
The forum left me with a firm conviction that drug laws create intolerable racial disparities. We do not have a just society when such disparities exist.
Impact on Justice Funding
The following figures are a bit dated and not all on the same basis but they give a general idea of the fiscal impact of drug law enforcement on the court system. In 2000, total statewide expenditures on Superior Court were $80 million. The legal and adjudication costs of drug law enforcement were $22 million. Drug laws take about a quarter of court funding. King County experience confirms this rough estimate. Its criminal calendar requires about half of its Superior Court judges. About half of those criminal cases are drug cases. Thus, drug cases occupy the time of about a quarter of our Superior Court judges.
As I have written in previous columns, the shortfall in Superior Court funding is estimated to be $14 million. Note that this shortfall is less than two-thirds the amount devoted to drug law enforcement.
The impact on other parts of the justice system is high. In 1996, drug law enforcement costs statewide-arrest, prosecution, public defense-were $202 million. You may recall from previous columns that $79 million is spent annually on public defense and that the estimated shortfall in public defense funding is $132 million. A significant part of public defense work-and work that should be done but is not done-relates to drug laws.
If the burden of drug cases were reduced, funds now devoted to those cases could be used more productively. In short, drug law reform could alleviate the funding shortfall for the courts and other parts of the justice system.
2004 - Begin the Transition from Criminal Sanctions Model to Public Health Model
After three years of careful, research-based examination of alternative approaches, the Drug Policy Project has proposed an innovative but measured transition to a public health model. The proposal and supporting studies are as detailed and well footnoted as the 2001 report.
The new approach proposes as its guiding principles that public policy should result in no more harm than the use of drugs themselves and that society should seek to reduce the harm directly caused to others by persons using drugs.
Recognizing that the subject is complex, the resolution does not presume to present a completely worked-out new drug law. Instead, it calls on the state legislature to set up a consultative body of experts, public officials, law enforcement officers, and civic leaders to study all of the elements that comprise a public health model and to recommend appropriate legislation.
The proposal envisions a state-level system of regulation and control of substances rather than imprisonment of people. The principal purposes of the new approach are to eliminate the illegal drug market by making it unprofitable, to reduce access by youth to drugs, and to focus resources on treatment rather than criminal sanctions and prison.
The proposal is for incremental change, first making clinical trials and then integrating effective changes into the public health system. The consultative body would consider each drug separately and devise an appropriate approach for each drug. Cannabis and opiates (heroin), already the subjects of extensive study and trials in other countries, are the leading candidates for the first trials.
By proceeding step by step rather than by a drastic, all-at-once, overhaul, the state will have a chance to measure the effectiveness of new approaches in terms of public order, public health, and public costs. If initial steps are not effective, the state will be able to revise the approach and, if absolutely necessary, return to the criminal law model.
Conclusion
KCBA’s leadership in the Drug Policy Project is squarely in line with its long tradition of leadership on important justice issues. KCBA was founded in 1886 to oppose the anti-Chinese race riot of that year. In 1937, it was among the first bar associations in country to start a legal aid bureau, the foundation for our current pro bono programs. In the 1950’s, the association stood up for lawyers and their clients called before the House Un-American Activities Committee. In the late 1960’s KCBA helped to found King County’s public defender system. More recently, it has worked to open the profession to women and minorities.
Bar associations and lawyers across the country are looking to replicate the work of the Drug Policy Project. Roger Goodman, the executive director of the Project, is a member of the ABA Standing Committee on Substance Abuse. He will speak to the National Conference of Bar Presidents at its annual meeting in February.
The great majority of KCBA members familiar with the Drug Policy Project give it their enthusiastic support. For those not familiar with it, I suggest reading
the 2001 resolution and report www.kcba.org/druglaw/pdf/report.pdf and the 2004 resolution and supporting studies www.kcba.org/druglaw/proposal.cfm.
I believe they will convince you, as they have convinced me, that we must stop doing the same thing over and over. It’s time for some sanity.
John Cary is KCBA president. He can be reached at caryj@att.net.
