War on narcotics imperils justice system
By John L. Kane Jr., U.S. Senior District Judge

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 deescalation 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 widespread 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.