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 contradictory—may 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 combined.
    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 them.
    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 profit.
    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 problems.
    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 from themselves.
    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 our buck.
    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 and property.
    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.