Remarks By Senior Judge John L. Kane of the U.S. District Court of Denver, Colorado

Presented to the Western Governors’ Association in Scottsdale, Arizona on December 15, 2000

The heedless pursuit of folly is a condition of human nature that has been with us throughout the history of mankind. With a collective refusal to recognize the inevitable and the obvious, various societies have thrust themselves headlong toward failure and disaster. The horror of the Children’s Crusade is easy to admit because time has made it remote. A nation half-slave and half-free marching inexorably to Civil War is closer in time and consequence, but memory dims the barbarity and conceals fratricide in illusions of glory. Only recently have we dared admit the cultural ignorance and rejection of previous military counsel that were responsible for the national disaster we call Vietnam.

A monster gnawing in the belly of the human spirit impels us to abandon both cherished values and common sense. Like Don Quixote we depart from reality to pursue imagined demons and leave naught but carnage and confusion behind. The sated monster laughs at our folly and awaits the next imagined peril.

As Mark Twain observed, "What you know that isn’t true will cause you more harm than what you don’t know at all."* What we know that isn’t true and what we refuse to know that is true about drugs forms the bedrock of our current national, indeed international, folly.

It is not true that illegal drug use is the nation’s most serious health problem. Voluntary obesity is. More death and economic loss are caused by the consumption of legal drugs, principally alcohol and tobacco, than all illegal drugs. Over 100 million Americans drank alcohol last month. Over 50 million smoked tobacco. Nine million Americans smoked marijuana last month, 1.2 million ingested cocaine during the same period and fewer than 6 million used it within the past year. The figures for heroin and nonprescribed amphetamine abuse are so small they are not even in the same statistical league, much less the same ballpark.

Not all people who drink alcohol or smoke tobacco are killed or seriously injured as a result, nor are all voluntarily obese people fatalities. The same is true of those who take illegal drugs: not all, nor even most who use them are killed, seriously injured or addicted. Yet it is our stated national policy to imprison all those who possess, sell or use illegal drugs. That policy is pure folly.

Drug prohibition doesn’t work. In 1914 when drugs like cocaine were available on grocery shelves, 1.3% of the population was addicted. In 1979, before the so-called "War on Drugs" crackdown, the addiction rate was still 1.3%. Today, while billions of dollars are being spent to reduce drug use, the addiction rate is still 1.3%. Yet America imprisons 100,000 more persons for drug offenses than the entire European Union imprisons for all offenses. The European Union has 100 million more citizens than the U.S.

Drug prohibition is also a waste of money. Local, state and federal governments now spend over $9 billion per year to imprison 458,131 drug offenders. Incarcerating all cocaine users for a year would cost $74 billion, but only after constructing 3.5 million more prison beds at an initial cost of $175 billion. It would cost $365 billion to jail everyone who smoked marijuana last year – five times the total state and local spending for all police, courts and prisons. We would need a cadre of guards and other prison employees larger than all of our military forces. This is a cost we cannot afford and a project we could never accomplish even if we had the money.

More costly than money, however, is the price we pay for this failed policy in terms of the decline in public safety, the breakdown of our criminal justice system, the erosion of our civil liberties and the pervasive public disrespect of the law.

Good citizens, who are otherwise law-abiding, ignore or evade drug laws. With literally tens of millions of people using illegal drugs or related to those who do, a large portion of the population has become cynical about all laws and our legal system and political process in particular.

Much like in the days of Prohibition, when citizens, politicians, children and gangsters met on common ground in speakeasies and paddy wagons and when judges and prosecutors sought the flimsiest of reasons to dismiss cases against the franchised populace, ordinary people today transact purchases with criminals in the black market. Hostility and scorn toward law and law enforcement are a natural consequence. When approximately half of the members of a high school graduating class have smoked marijuana or snorted cocaine, few, if any, of them or their parents are willing to regard them as criminals. Each year since 1989, more people have been sent to prison for drug offenses than for violent crimes. At the same time only one in five burglaries is reported and only one in 20 reported burglaries ends in arrest and yet detectives continue to be reassigned from burglary details to investigation of street sales of drugs.

On an even more practical level, the War on Drugs is doomed to failure. The most fundamental concept of economics is the law of demand, which says that consumers buy less when the price rises. Misunderstanding this basic rule, the drug warriors attempt to justify interdiction. They claim drug consumption can be ended by cutting off supply, thereby causing a price increase resulting in little or no demand. In other words, interdiction will cause prices to rise to such a high level that demand will cease.

A little knowledge is very dangerous. In fact, the law of demand only applies to one product at a time. Our sorry experience shows that when one illicit commodity becomes too expensive, another is selected. A 1994 National Bureau of Economic Research study found that when the price of marijuana rises, youth drink more beer and that directly correlates with an increase in traffic fatalities.

A National Institute of Justice study reported a precipitous increase in the use of methamphetamine during 1985-86 after a crop destruction program eviscerated the marijuana supply in Hawaii. Making marijuana more difficult to obtain also causes an increase in cocaine consumption. When efforts to interdict marijuana are successful, the danger to our youth is increased by a rising consumption of alcohol and cocaine. When the supply of beer is reduced, the consumption of hard liquor increases.

Moreover, interdiction increases production and consumption of drugs. A 1992 United States House Judiciary Crime Subcommittee reported that the massive effort to destroy the Medellin Cartel resulted in an increase of cocaine transshipment points from 11 to 25 and an expansion of cocaine processing to as many as 13 more countries. Researchers have also found a statistically significant correlation between higher incarceration rates of drug offenders and greater, not less, drug use.

As Benson and Rasmussen observe, the failure of the War on Drugs makes legalization an attractive alternative in the eyes of conservative and liberal luminaries such as esteemed Nobel Laureate Milton Friedman; author and commentator William F. Buckley, and former Secretary of State George Shultz on the one side, and former Baltimore Mayor Kurt Schmoke, New York Times columnist Anthony Lewis and ACLU President Nadine Strossen on the other. They all publicly advocate legalization of drugs, treating them like alcohol and subjecting them to advertising restrictions, age limits, time and place restrictions and excise taxes. For many, legalization is the logical solution to the nation’s drug problems. For some, it is not only logical, but a matter of fundamental freedom. People are responsible for themselves and should have the right to make their own decisions.

Prohibition has always failed and always will, but there is an alternative to outright legalization. We are not forced to make a Hobson’s Choice. The drug problem will evaporate when the black market is eliminated, but the evaporation process will take time and effort.

The middle approach between the extremes of legalization and prohibition is to accept drug use as an undesirable part of the human condition and treat it as a health problem. A 1994 Rand study shows that treatment of heavy cocaine users is seven times more effective than asset forfeitures, arrest and imprisonment. The same study shows that the cost of treatment is one-fourth that of police enforcement.

As Americans, our biggest fault is the overriding desire to solve any problem, "once and for all." To borrow from drug culture vernacular, our national psyche demands a "quick fix." Unfortunately, it isn’t there. What we as a nation must do is learn to live with uncertainty and expect less than total success.

If our appraisal of American history is honest, we must recognize that our country has succeeded when it has placed its faith and trust in the spirit of American enterprise and that we have failed when we have followed a puritanical path. Our highest purposes are achieved when we proceed with the consent of the governed. Our failures occur with force, the threat of force and the practice of fraud. American drug policy includes the use of military force in other countries and on our national borders, the threat of force to other nations, and the threat of severe economic and diplomatic sanctions even to long-standing allies. In furtherance of that policy, the dissemination of false and misleading data by the government has become commonplace. The same policy results in ignoring, deriding and distorting facts that would otherwise show more successful alternatives to the present practices of interdiction and criminal sanctions for drug consumption.

Police agencies still need to protect the public by holding those who cause accidents or commit crimes while under the influence of drugs and alcohol fully accountable for their acts, but we must get them out of the business of financing their operations through the seizure and forfeiture of private property. The costs of law enforcement should be funded from the public fisc under direct legislative control. In other and harsher words, we need to terminate the symbiotic business relationship that law enforcement has with the illegal drug industry. Each scratches the other’s back.

One of the longest and most cherished traditions of this nation is that the military is subservient to the civilian government, and that military might shall never be engaged in domestic matters. For as long as we have been free, we have disavowed the existence of a national police force. Law enforcement is the business of local police agencies. Federal grants and financing of multi-governmental task forces coupled with military assistance seriously jeopardize local control of police action. The federal government must get out of domestic drug law enforcement for no reason less important than the freedom of all individuals.

State and local officials are responsible for domestic law and order. There is an understandable temptation for state officials to shape their policies and programs to conform to federal grant requirements, but state legislatures must insure that control of state agencies is not abdicated in the grab for federal funds. Indeed, if legislators do not meet this responsibility, they can be defeated at the polls and replaced by those who will. Community safety and freedom must not be compromised in pursuit of the federal dollar

Alexis de Tocqueville called our states and communities the "laboratories of democracy," where experiments in self-government could take place and the success of one could be substituted for the failure of another. Our federally directed drug control policy has closed these laboratories. The consequence is that as a free people we continue to pursue but one path – the path of folly.

In order to deal successfully with drug abuse, this nation must eliminate the black market and permit a regulated one. We must permit the several states to resume their role as laboratories of democracy in which policies and programs suitable to their individual needs and conditions can be implemented. We must restore local authority and autonomy over police practices. Most importantly, we must confront drug abuse as a threat to health treatable through science rather than superstition and hysteria.

* This quote and most of the following research data can be found in "The American Drug War: Anatomy of a Futile and Costly Police Action", by Bruce Benson and David Rasmussen, The Independent Institute, July 10, 2000.