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By Whitman Knapp
from the Sunday, May 9, New York Times OP-ED page.
[Whitman Knapp is a Senior United States District Judge for the Southern
District of New York.]
The nation was fortunate in President Clinton's selection of Lee Brown as Director of the Office of National Drug Control.
Having been police commissioner in Atlanta, Houston and New York, Mr. Brown has been in key positions to observe that a half-century of the Federal war against drugs has had a simple result: Each year, the Government has spent more on enforcing drug laws than it did the year before. Each year, more people have gone to jail for drug offenses.
Yet each year there have been more drugs on the streets.
Surely, Mr. Brown can have no interest in simply spending more money and filling more prisons. Indeed, he might well conclude that his mission is to find out how to eliminate his new job.
Milton Friedman, the Nobel laureate economist, has a simple explanation of the upward spiral with which Mr. Brown must contend. Law enforcement temporarily reduces the drug supply and thus causes prices to rise. Higher prices draw new sources of supply and even new drugs into the market, resulting in more drugs on the street. The increased availability of drugs creates more addicts. The Government reacts with more vigorous enforcement, and the cycle starts anew.
Mr. Friedman and those who share his views propose a straightforward way out of this discouraging spiral: Decriminalize drugs, thus eliminating the pressure on supply that creates an ever-bigger market.
This, they contend, will reduce demand and reverse the cycle, much as a similar approach has cut into alcohol addiction.
I do not claim competence to evaluate this theory. But after 20 years on the bench, I have concluded that Federal drug laws are a disaster. It is time to get the Government out of drug enforcement. As long as we indulged the fantasy that the problem could be solved by making America drug free, it was appropriate that the Government assume the burden. But that ambition has been shown to be absurd.
Attorney General Janet Reno's statement on Friday that she hopes to refocus the drug war on treatment show's admirable determination that the drug problem is primarily a local issue, more properly the concern and responsibility of state and city governments.
If the possession or distribution of drugs were no longer a Federal crime, other levels of government would face the choice of enforcement or trying out Milton Friedman's theory and decriminalizing. If they chose the second route, they would have to decide whether to license drug retailers, distribute drugs through state agencies or perhaps allow drugs only to be purchased with a physician's prescription.
The variety, complexity and importance of these questions make it exceedingly clear that the Federal Government has no business being involved in any of them. What might be a hopeful solution in New York could be a disaster in Idaho, and only state legislatures and city governments, not Congress, can pass laws tailored to local needs.
What did the nation do when it decided to rid itself of the catastrophes spawned by Prohibition? It adopted the 21st Amendment, which excluded the Government from any role in regulation of alcoholic beverages and strengthened the powers of the states to deal with such matters.
That is precisely what the Congress should do with respect to drugs. It should repeal all Federal laws that prohibit or regulate their distribution or use and devise methods for helping the states to exercise their respective powers in those areas.
But having created the problem by decades of ill-considered legislation, congress can't just throw it back to the states without helping finance the efforts. That raises a host of complex problems, including apportionment of Federal monies among the states, restrictions on how the monies may be used, the ratio of Federal dollars for enforcement to those spent on treatment and the role of nongovernmental organizations that treat addicts.
Such problems will not lend themselves to easy resolution. After all,
Prohibition was allowed to wreak havoc for a mere 14 years, while the
drug warriors have been at it for many decades. Under Lee Brown's
leadership, we may hope for a return to sanity.
This "Letter to the Editor" appeared in the May 24 NYT.
MANY GOOD RESULTS
We can no longer ignore calls like Judge Whitman Knapp's in "Dethrone the Drug Czar" to decriminalize drugs. When most of our jails are filled with drug-related convicted criminals; when the criminal justice system is crippled by drug-related cases; when drugs cost us billions of dollars in police, judges, prosecutors and lawyers; when our streets, schools, subways, parks, homes and we are not safe from drug-related shootings, burglaries and muggings, our politicians can at least debate decriminalization honestly.
What are we afraid of? That it would become too easy to obtain drugs? How difficult is it now? Are we afraid that more youngsters will use drugs? Do we really believe that the fear of criminal punishment deters drug use? If so, where is the proof of such deterrence? These questions should be debated.
If drugs were decriminalized and made available without the fear of long-term jail terms for sellers and user,s it stands to reason that prices would be reduced drastically. The drug user who now steals, mugs and burglarizes to support his habit may not commit such crimes if he could obtain the drugs at a lower price. The billions of dollars now spent to enforce drug laws could be spent to educate youngsters against the use of drugs and to treat drug users. Decriminalizing drugs does not mean encouragement of their use.
On the positive side, decriminalizing drugs could reduce crime, unclog our judicial system and free billions of dollars for other purposes, including drug treatment facilities. What is the negative side of decriminalizing drugs? Can we afford more of the same?
Long Island City, Queens, May 12, 1993
The writer is a lawyer.
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