Judges Speak :: Robert W. Sweet
U.S. District Court, New York
Remarks at Harvard Law School, Drug Policy Conference, May 1992
The Real Basis for The Drug Problem
It is important to ask whether it is morally responsible, for the government to criminalize an adult citizen's informed choice to alter his own mind? We also need to examine whether drug prohibition works. It is most important to know, however, what is the real nature of the drug problem. I will examine these questions.
A public policy which permits the use and advertisement of alcohol and tobacco (which kill 400,000 annually), and a government policy which subsidizes tobacco, the most addictive of all drugs, cannot be reconciled with a mandatory 20 year prison term for a citizen who distributes a different form of mind-altering substance.
The Alcohol Prohibition experiment demonstrated that you cannot use the criminal law to change human conduct and desires. University of Chicago Law Dean Norval Moore has observed that the criminal justice system is a necessary, but limited system. We have rarely been able to demonstrate any changes in crime rates, by making substantial changes in policing or correctional practices. Quoting Sutherland: "When the mores are adequate, laws are unnecessary; when the mores are inadequate, laws are ineffective."
Whatever you think of the virtues of free will and free choice (the right to live free of government regulation as long as you don't hurt others), you must be concerned with the existing evidence of the impact of our present drug control policy, and whether it works. Current policy has not effected the use and distribution of illegal drugs. This policy is bankrupt, or at worse, a cover-up for a $150 billion annual industry.
Novice drug dealers can earn $20 million in 18 months. Drug use drains $60 million annually from the legitimate economy. The Federal Reserve estimates that $125 billion in federal currency is missing. The drug war supports an enormous unregulated underground economy. Just as during Alcohol Prohibition, money drives the distribution of drugs. If you killed all drug distributors tomorrow, a new army of distributors would take their place by the end of the week, because of the profit generated by an illegal black market.
25-30 million Americans use drugs, of which 6 million are drug dependent. Between 1980 and 1990, we saw a 213% increase in drug convictions, an average increase in drug sentences of 72%. Now, half of all federal prisoners are drug offenders; 40% of all NYC indictments are for drug offenses. More money for drug dealers, more crime, more prisoners, more drug addicts: All these facts demonstrate to me that our present prohibitive drug policies have failed completely and without question.
So, what should our policies be? Eliminate the profit, eliminate the crime, follow the recommendations of Pres. Nixon's Shaefer Commission, and the National Academy of Science in 1982, and end the criminalization of marijuana for adults. That alone would remove 700,000 annual arrests from the criminal justice system, and reverse the 70-30% ratio between enforcement and treatment. We could spend the savings (from ending marijuana prohibition enforcement) on education and drug treatment, to far greater effect on the harm caused by drugs, than the effect of current policy. Now, the discourse on drug policy is dominated by headlines and terror. So-called drug policy experts appear on national television and say things that are just plain false, contradicted by the government's own collected statistics. Take the myth of "crack babies," whose alleged permanent birth defects have justified harsh punishment and the loss of custody for many mothers. In reality, two years after birth, these children's average developmental functioning is normal. None of this information, or the correction of the initial myths, are reported by the mainstream media. Crack babies are the result of a whole host of problems, of which drug use is only a piece, and not the determinative piece.
There is no hard evidence that medicalizing drugs would increase their use.
There is no evidence that people are restrained from using drugs by the current drug laws. Between 10-15% of all drug users, legal and illegal, become addicts. Using a cost-benefit analysis, we would be better off if we had safe narcotics and treated the abusers; we would have a healthier America with less crime. Improving education is a far better in reducing drug use than current policy. In the long run, people will respond in a rational way to substances with a potential for abuse and self-destruction, with or without drug control laws. As with alcohol, there always will be casualties, and deaths.
Drug trade rots international relations and cities. It is crime that feeds on itself. Combating drug abuse requires not belligerence, but clear thinking, courage and common sense. Pharmacological escape is a threat to society, but it is a containable threat. Hysteria jeopardizes that containment, and turns the threat of drug abuse into reality. If economic forces and free speech can bring down the Berlin Wall and reshape the Soviet Union, the same forces also can dictate a change in our drug strategy.
Prevention is cheaper than prison, education more valuable than enforcement, cure more effective than interdiction. We lack strong, practical leadership that would demand sacrifice and provable improvement in reducing drug abuse and its related harms. Where there is no vision, the people perish. Are we coming dangerously close to that point? We can afford to do more to enhance liberty and justice, and their concomitant responsibilities. Of the 23 top national economies, we rank 20th at the rate at which we tax ourselves, yet 4th in infant mortality. We have heard that the Gulf War put Viet Nam behind us. I suggest that is not true, because the drug war is our living, breathing, present Viet Nam.
Instead of a drug war, we should have freedom of choice over what we ingest, a longer school day, a national obligation to perform public service by and for all citizens. Drug use is the result, not the cause, of our national malaise, its materialism, self-absorption and dishonesty. It is not the problem, it is the result of the real problem. We have to renew our spirit, the ethic of hard work, and altruism. Stop the drug war and the building of prisons. Take the billions saved, and put it into education and public service.
The drug debate is a false issue, with assumptions barren of empirical evidence. By endowing drugs (crack for example), with mythical demonic properties (formerly attached to alcohol) that deny the capacity of any user to function in society, the issue becomes inverted. Because then, the debate is focused on drug use, rather than the conditions that gave rise to the drug use in the first place. This demonization of drugs, unsupported empirically, blocks consideration of the harder, more fundamental question, which is: Why do some of our fellow citizens risk destruction to achieve mood alteration?
Why do they feel so hopeless and powerless? Drug use is not the center of this universe, what is wrong is an inadequate commitment to education, lack of economic opportunity, a value system focused on the individual not the society, a lack of commitment to the society, dishonesty in high places, and the end of altruism.
To focus on drug use as the problem, is to shoot the messenger. Reality and reason require that a start be made to end the criminal prohibition of drugs.
