Judges Speak :: James C. Paine
U.S. District Court, Southern District of Florida
Remarks at Harvard Law School, Drug Policy Conference, May 1992
Victims of the Drug War Cross-fire
Americans are caught in a crossfire, drug dealers and addicts versus the police, who wage drug war on citizens and drug users alike. Shall we continue to do more of the same, or rise above the fray to seek perspective, to search for patterns, at the risk of becoming a target for drug warriors with an investment in maintaining the status quo? The victims of the crossfire are clear; we have met the enemy, and he is us.
Libertarians Milton Friedman and David Boaz argue that the use and sale of controlled substances should be decriminalized. Alcohol didn't cause crime, prohibition did; the same results are true with drugs today. Prohibition (drug enforcement) has no impact on drug distribution, except to raise and maintain the value of the illegal market. Drug enforcement is intended to reduce crime, abuse, absenteeism and the need for social programs.
Beneficiaries of current policy, however, are smugglers (high price maintenance by police limitation suppliers) and big government (larger police forces), whose resources have grown due to prohibition. Higher drug prices, besides higher smuggler profits, mean users must commit more crimes to raise the money to maintain their habits (cause of half of urban crime). Legal drugs would cost less.
Besides insuring a high level of crime, a second impact of prohibition is official corruption. Profits enforced by prohibition are an irresistible temptation to police and customs. We should be shocked, not by how many are corrupted, but how many are not.
A third effect of prohibition is contact between otherwise law-abiding citizens and criminals.
Fourth, is The Iron Law of Prohibition, which compels the increased potency of drugs, with greater harm to users, just as alcohol prohibition developed the national taste for harder liquors. For the same risk of criminal punishment, you can increase drug profits by enhancing the potency of the same volume of contraband. Thus, The Iron Law dictates that prohibition economics motivate the development of more dangerous drugs.
The last product of prohibition is crack, a cheaper, more addictive and more toxic version of cocaine.
Fifth in the parade of drug war assaults on our quality of life and democracy, are property seizures and forfeitures, based on mere allegations without criminal conviction after trial or presumption of innocence.
Exploring alternative drug policies, like legalization, is an expression of popular frustration and a rational response to the harms caused by drug abuse and drug war failure. People should be frustrated by the continuing failure of more of the same failed policy of drug war. Current policy leaves only two choices: Escalate or quit.
The de-escalation of the drug war is supported by accepting the unalterable facts that: 23 million Americans use recreational drugs; and, the drug war will be no more effective than Alcohol Prohibition, in achieving national abstinence.
Alcohol and tobacco are precedents for the legalization of drugs. The timing and methods for decriminalization would differ, as applied to marijuana, cocaine and heroin. Decriminalization will not disrupt society; instead, it will benefit society, by freeing up resources able to be used more effectively in combating abuse and other abuse-fostering (or decriminalization-created) social problems (as shown by our experience with legal dangerous drugs), than the current use of those funds on punitive drug war methods.
The social impact of decriminalization will be a better quality of life and justice than we currently have under drug war. Crack is the result of the Iron Law of Prohibition, while regulated drugs (alcohol and tobacco) are becoming weaker (lite beer, low tar tobacco). Less smoking is occurring, due to rising health education and consciousness of tobacco harm.
It is better to separate law enforcement from drug education, and use reduction in police-based drug education, to fund more honest fact-based drug (and other) education. Decriminalization would reduce prohibition-caused crime, allow more police resources to be directed at violent crime, reduce public corruption and deprive criminals of income.
The final and best benefit of decriminalization would be to recapture ghetto youth from trade fostered and defined as criminal by prohibition.
George Bernard Shaw said: "All great truths begin as blasphemy." Brandeis said, "We must develop law that realism can accept as truth." Rarely have so many battles been won in a losing war. The Cali cartel annual income exceeds $1 billion, so a 12 ton seizure (worth $100,000) is insignificant. The impact of interdiction negligible, despite its significant cost in taxpayer funds and the reduction of funding for social programs which could be far more successful in reducing demand. Convictions merely create job openings in the distribution scheme. Education and hope are far stronger deterrents to drug use, than interdiction and punishment.
Holmes said, "Experience, as opposed to logic, is the real foundation of the law." Our recent experience with Alcohol Prohibition should convince us that only a different course of drug control can offer the expectation of better results than our current, similar policy of drug prohibition. Since the imposition of mandatory sentences, drug supply and purity are up, and cost is down; no kingpins are caught; drug selling convicts are replaced by an inexhaustible supply of profit-driven replacements. Alcohol prohibition repeal reduced crime and corruption, without substantial harm to public sobriety.
"However long it has continued, if it be against reason, it has no force in law." Lord Cooke. The drug war contradicts reason; so long as it enjoys the force of law, the respect for all law is imperiled. In the cross-fire of the drug war, all of us--users of legal drugs, illegal drug users and the totally abstinent--are at risk as potential victims, when law enforcement overcomes reason.
