War on narcotics imperils justice system
By John L. Kane Jr., U.S. Senior District Judge
ŠThe Denver Post, November 2, 1997
Nearly everyone is disenchanted with the U.S. criminal justice
system, which is seen as excessively expensive, conceptually confused,
increasingly unfair and pervasively ineffectual. Social scientists
espouse views wedded to determinism, insisting that now this and
now that social dynamic biological condition or psychological
force causes criminal behavior and that self control has little,
if anything, to do with one's conduct.
Politicians leap from captious harangues to capricious remedies
without reflection or inspiration. Frustrated citizens cling to
the fundamental ideals that individuals are responsible for their
acts and must be held accountable.
Lawyers and jurists quibble about balancing these interests, taking
great care to avoid any moral judgment so that all viewpoints even
the contradictorymay enjoy the illusion of relevance
and predominance. The process twists and distorts language to
the extent that a "life sentence" means temporary confinement,
and "life without parole" means daily work release and
unescorted furloughs. Flawed studies and statistics are used to
promote whatever policy is in vogue.
In sum, truth takes a holiday, and special interests burrow into
the sources of wealth and influence.
The result is waste and nonsense that in any other human endeavor
would be intolerable. If there is a key to understanding America's
criminal justice problem, it lies in recognizing that the war
on drugs has been lost and never was winnable. In order to feed
the war machine, we have sacrificed our courts, prisons and law
enforcement. More importantly, we have surrendered many of the
freedoms that made us the freest society in history.
Those who advocate escalating the war attribute the gangs, killings,
corruption, thefts and burglaries to the drugs and the profits
they bring. Those who seek de-escalation say the problem is not
the use of drugs, but the criminalization of them. Not all drugs
are illegal. Alcohol destroys more people and inflicts more damage
on society than do heroin, cocaine, marijuana and other narcotics
The drug problem has two elements. The first is the human appetite
for drugs and the costs of feeding it. If there were a free market,
the social costs could be determined. The second aspect is the
effect of government interdiction of drug commerce.
When these two elements are combined, it is not possible to reconcile
As a nation, by combining appetite and regulation in the era of
Prohibition, we increased gangs, violence, corruption and wide-spread
tolerance of illegality. We did nothing to decrease the thirst
for alcohol. Only with the repeal of Prohibition did organized
crime turn to illicit drugs as the principal source of tax free
The law cannot alter human appetites anymore than it can eradicate
the seven deadly sins. But if government took full control of
the drug supply, dealers would lose all incentive to be in the
business. The manufacture and distribution of drugs still would
be serious crimes, but use and addiction would be treated as medical
Efforts to dissuade the young from drug use, such as DARE and
"Just say no" campaigns, are commendable. Public education
has proven effective in reducing the number of people who smoke
tobacco. Similar efforts may reduce consumption of drugs, but
outright proscription of tobacco would contribute to an increase
in crime just as Prohibition did with alcohol. We can expect neither
the abolition of drug use nor reduced crime by our reliance on
this intensive criminalization.
No doubt, some criminals must be incarcerated. Indeed, some are
so dangerous they must be isolated, and some even need protection
But those who espouse a "lock them up and throw away the
key" solution must be willing to justify the enormous cost.
It costs $24,783 to incarcerate one federal prisoner a year, compared
with only $2,344 to supervise an offender under federal probation,
the finest probation service in existence.
Thus imprisonment costs 10.6 times more than supervision. This
doesn't even consider indirect costs, such as welfare to families
when the wage earner is imprisoned; loss of taxes; lost income
to the community; loss to creditors; or the costs of readjustment
when prisoners are released.
Between 1850 and the late 1970s, the U.S. incarceration rate remained
relatively stable at about 100 per 100,000 people, writes Loren
Buddress, chief probation officer of the Northern District of
California, in the journal Federal Probation.
Because of the "tough on crime" cachet since the late
1970s, the rate has skyrocketed to 600 per 100,000. No other country,
including Russia and South Africa, incarcerates more of its citizens
than does the United States.
The federal prison system is now at 125 percent of capacity. California
is at 184 percent, and no state is without similar problems. In
the past decade the prison system population has grown by 13 percent
a year, and yet this tremendous increase has had no impact on
crime. If we insist on using imprisonment as the principle means
of fighting crime, we should be getting a much better bang for
If the population grew at only 10 percent a year, this nation
would have to build four 500 bed prisons a week at about $50,000
per bed. This amounts to $100,000 million a week, or $5.2 billion
a year. But construction makes up only 5% of prison costs, Buddress
notes. The real cost would be $14,000 billion a year - plus inflation
for operating existing prisons.
"When one combines the economic deficits created by incarceration
with the economic surplus created by local community supervision,
the taxpayer benefits approximately $37,000 per person per year
for offenders who are punished locally on probation and on pretrial
supervision rather than incarcerated," Buddress concludes.
Political leaders and candidates will insist on being "tough
on crime," but there is no reason such toughness should be
harnessed to an irresponsible lack of concern for costs and effectiveness.
The entire system is stretched to the breaking point by laws that
mandate minimum sentences. Most such sentences relate to the use,
possession, transportation, manufacture or sale of some drugs.
In imposing these sentences, little if any attempt is made to
distinguish between use and dealing. Many crimes such as theft,
burglary and fraud are connected to drugs because they are committed
to obtain the money to buy drugs.
If the resources now spent on criminalization of drugs were devoted
instead to education and treatment the cost and dangers of drug
use would be greatly reduced. More funds would be available for
schools, hospitals, libraries and courts. And the money spent
on police practices that fail to reduce consumption could be directed
to traditional areas of law enforcement that have been preempted
by this futile war effort.
Today's drug enforcement system is swamping the judicial system.
In many courts, the right to trial by jury in civil cases has
all but disappeared. In far too many federal courts, the right
to a trial presided over by a constitutional officer has vanished.
People who can't wait 10 or more years to have a civil dispute
decided are forced to "rent" a retired judge or pay
a lawyer to arbitrate. Even in systems that have not reached gridlock,
drug congested dockets have diverted judicial time and attention
from the thoughtful resolution of disputes to the ritualized processing
of charge, plea and computerized sentences to crowded prisons.
In his annual report for 1989, almost a decade ago, U.S. Supreme
Court Chief Justice William Rehnquist wrote: "Some courts,
especially in border states, are approaching the outer limits
of caseload and fatigue from handling drug related criminal cases."
He complained that the glut delays important litigation involving
business disputes, the environment, civil rights and bankruptcy.
Perhaps more poignantly, the chief justice did not comment on
a result that every judge knows or should know, namely that the
war on drugs has eviscerated the protections the Constitution
guarantees against government invasion and seizure of our homes
There are rational alternatives. Drug problems are worsened by
escalations in the drug war. The solution lies not in isolating
users, but in enlisting all our resources, not just law enforcement,
in being pragmatic rather than hysterical, in being flexible rather
than rigid and in being protective of the values that have pointed
us toward the ideal of a free and just society.
U.S. Senior District Judge John L. Kane Jr. has served on the
bench in Denver for 20 years and is a frequent lecturer and teacher
at various law schools.