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"...judges must be cautious in speaking out on matters of public policy, on the
other hand, judges have an obligation to speak out when their work gives them a
perspective on a particular issue that others do not have. In the matter of
drugs, legislators and executive branch officials see the issue from an overall
policy perspective, but influenced, and properly so, by public opinion and
public fears. Professors and other researchers see drug issues from the vantage
points of their various disciplines, and those involved in various advocacy
groups see the issue from their particular points of view.
"Lawyers and judges who participate in drug litigation, however, see the drug
issue on a case-by-case basis, and when they see enough of those individual
cases, they should begin to see a mosaic .... judges see both sides. I think
all of these perspectives are important in helping us analyze the problem, but
I fear that up to now the analysis has not been sufficiently informed by the
judicial perspective." Page 2.
Has the drug war been a success? Is it cost-effective? How do
policies involving legal and illegal drugs compare?
"The challenge is to devising a rational drug policy is to find least-cost
solutions to the problems created by the age-old fact that some human beings
take more of various mind altering substances than is good for them. . .
"A superficial overview of the facts and statistics I have quoted leads me to
conclude that the tremendous investments made by the government in law
enforcement efforts in the war on drugs have resulted in rather modest gains
when compared to the relatively insignificant educational investments made by
the government to discourage tobacco and alcohol use, and the reductions in use
resulting therefrom. That would lead me to conclude that when it comes to
reducing drug use the government gets more bang for the dollar from education
than from enforcement. A second preliminary conclusion that I reach is that
there appears to be some correlation - correlation, not necessarily causation -
between increases in violent crime and more vigorous enforcement of
prohibition. Lastly, I conclude that although there appear to be societal costs
for tobacco and alcohol use of more than two times that of using illicit drugs,
government spending related to the use of illegal drugs is twice that spent for
tobacco and alcohol abuse. A parallel analogy is that although there are ten
times more tobacco and alcohol users than users of illegal drugs, government
spending on users of illegal drugs is twice the amount spent on tobacco and
alcohol users." Pages 10-11
Can effective law enforcement be counterproductive?
"Even assuming that effective interdiction could be achieved as well as
successful crop eradication in source countries, the resulting squeeze in the
supply of drugs available to the U.S. consumer would be counterproductive. It
would merely cause the price of illegal drugs to rise. As a result, addicts
would have to commit more crimes to acquire the needed cash to pay for drugs at
a higher price, and more criminals would have an incentive to enter the drug
trade because the opportunity for higher profits would be greater." Page 13
Is public health served by prohibition?
". . . drug use, legal and illegal, is principally a health problem which is
best dealt with not by driving it underground with prohibition tactics, but by
having it out in the open to allow for treatment end education . . . It is
difficult to understand why illegal drug addiction should be treated
differently from alcoholism or nicotine addiction: all are basically public
health problems." Page 14.
". . . treatment is seven times more cost effective than prohibition. One
dollar spent on treatment of an addict reduces the probability of continued
addiction seven times more than one dollar spent on incarceration.
Unfortunately, treatment for addicts is not now available for almost half of
those who would benefit. Yet we are willing to build more and more jails in
which to isolate drug users even though at one-seventh the cost of building and
maintaining jail space, and of pursuing, detaining and prosecuting the drug
user, we could subsidize effective medial care and psychological treatment."
Page 17
Does the drug war make organized crime wealthy and increase
corruption?
"Because the sums of money generated by the illegal drug trade are so large,
prohibition has placed tremendous economic power in the hands of organized
crime. This economic power is the result of both the large amounts of drug
generated money and the fact that there is an unregulated market of illegal
products. This power allows the corruption not only of law enforcement
officers, but also of all levels of public officials, and related politicians."
Page 16
What are the constitutional implications of prohibition? Is it
fairly enforced?
". . . prohibition's enforcement has had a devastating impact on the rights of
the individual citizen. The control costs are seriously threatening the
preservation of values that are central to our form of government. The war on
drugs has contributed to the distortion of the Fourth Amendment wholly
inconsistent with its basic purposes. Particularly in the areas of search and
seizure we have seen major changes in the law brought about by Congress' and
the courts' zeal to support the enforcement of drug prohibition. . . " Page
22
" . . I am also struck by how much of the penalties for drug trafficking are
imposed on others than those most culpable. For example, the importation and
selling of drugs is controlled by one set of people, but it is implemented by
quite another - - the so-called "mules," often poor people, conscripted to
smuggle or sell drugs by powerful organizations . . . the fact is that these
people, who have little information to trade to the prosecutors, end up with
heavy sentences, while in the scheme of things the "'big fish,' if caught at
all, are able to work out deals with the government which may leave them with
light sentences or even without any prosecution. This is something that goes
beyond mere injustice in the inequality of treatment, it is essentially an
immoral outcome which tarnishes our entire judicial system." Page 22.
What should we do?
"1. There is a mountain of conflicting evidence and views about the course to
be taken. This demonstrates the imperative need for an objective
multidisciplinary study to independently assess the facts, and recommend
courses of conduct to be followed. This study should be carried out by a
commission that is bipartisan, is appointed jointly by Congress and the
Executive, and is composed of persons of unquestioned prestige. . . As part of
this process there must be a truly national debate about this subject to create
a conscience and consensus about these problems. Most important, there is a
need to keep an open mind about these issues.
"2. There is a need for pilot tests of some types of limited decriminalization,
probably commencing with marijuana, and obviously not including minors. . .
"3. Chronic abuse of illegal drugs should be treated in a fashion similar to
other chronic diseases, like alcoholism, and countermeasures appropriate to
such health problems should be implemented to a fuller extent.
"4. Pending the definitive study proposed, there should be a shift in the
funding of enforcement efforts toward an intense educational campaign at all
levels. The availability of funds to escalate treatment levels aimed at
rehabilitation should also be greatly increased." Pages 25-26.
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