Real Costs of U.S. Drug Policy
The attorneys at Flanary Law Firm, PLLC represent clients charged with serious drug crimes in state and federal court from simple possession to more serious drug trafficking offenses. Our attorneys are also recognized as leaders in reforming drug laws. The attorneys are often called upon to speak at the top seminars on issues related to drug crimes and fighting drug cases through motions to suppress for illegal searches and seizures.
This seminar material was presented by Donald H. Flanary, III, at the San Antonio Bar Association\\\’s 41st Annual Judge A. Semaan, Criminal Law Institute on April 16-17, 2004. The paper is entitled \\\”The Endless Drug War: No Winners, Only Casualties; Understanding the Real Costs of U.S. Drug Policy.\\\”
The article discusses some practical programs and initiatives that can be realistically implemented. Many of these solutions include:
- repealing mandatory minimum sentencing laws for drug offenders;
- increasing the availability of alternative sanctions;
- eliminating different sentencing structures for powder cocaine and crack cocaine;
- increasing the use of drug courts;
- increasing the availability of substance abuse treatment; and
- eliminating racial profiling, requiring police to keep and make public statistics on the race of arrested drug offenders and the location of the arrests.
This purpose of this article was to bring attention to the problems with the War on Drugs and not necessarily to tackle the complex issues of legalization or decriminalization. The first step on our way to preserving America is informing Americans of the real problems with the drug war.
Table of Contents
- The Endless Drug War
- Distortions of Our Judicial Institutions
- The Costs of Perpetuating a Prison State
- Erosion of Civil Liberties and the Rule of Law
- Felony Disenfranchisement: a Continuing Barrier to Civil Rights
- Can Drug Courts Offer Relief?
\\\”They that can give up essential liberty to obtain a little temporary
safety deserve neither liberty nor safety.\\\”
Benjamin Franklin, Historical Review of Pennsylvania, 1759
Since the beginning of the prohibition of drugs our nation has spent hundreds of billions of dollars on the enforcement of drug laws. Since 1981 alone the United States government has allocated over 200 billion dollars to Federal Drug Control spending. See Office of National Drug Control Policy, National Drug Control Strategy: FY 2003 Budget Summary, 6, Table 2, (February 2002), and TRAC analysis of the The National Drug Control Strategy, 1998: Program, Resources, and Evaluation (last accessed January 2, 2004).
Unfortunately, the United States has yet to make any headway toward real reduction in narcotics abuse or trafficking. In the mid-1990s, the Clinton Administration publicly stated that the “War on Drugs was a failure.” See James D. Cockcroft, Latin America; History, Politics, and U.S. Policy, 681 (2d ed.1997).
Despite the relentless fervor that the U.S. government exhibits for the prohibition of narcotics, illicit drug use remains a corrosive force in our communities. Interdiction efforts at home and abroad have devastated many democratic institutions because of the effects of corruption and enforcement’s blind lust to capture, detain, and forfeit the assets and liberties of anyone suspected of having ties to narcotics. Through federal forfeiture laws, the U.S. government has given law enforcement incentives to target offenders solely on the assets in their possession.
The assault on any citizen associated with narcotics is now driven more by a law enforcement “machine” than by any sensible desire to save individuals from drugs’ life threatening effects. Just consider the myth that “illicit drugs are an enormous danger to society.” The reality is that the following statistics bear out the real dangers in our society:
Annual Causes of Death in the United States
|Tobacco related deaths||430,700|
|Alcohol related deaths||110,640|
|Deaths caused by adverse reactions to prescription drugs||32,000|
|All licit & illicit drug related deaths||16,926|
|Non-steroidal anti-inflammatory drug deaths, i.e. aspirin||7,600|
|Marijuana related deaths||0|
These statistics are a compilation of annual causes of death in America by the Centers for Disease Control, the National Institute on Alcohol Abuse and Alcoholism, the Journal of the American Medical Association, the Annals of Internal Medicine, the U.S. Department of Justice, and the Drug Enforcement Administration (last accessed January 2, 2004).
In the United States, federal judges have the unique perspective of being the final arbiters of federal crimes and are often a devastating weapon in the government’s War on Drugs. These courts impose the sentences that land drug offenders in prisons. However, because of the government’s policy of mandatory minimums in federal sentencing guidelines, judges have lost much of their discretion to make rulings regarding the sentences of drug offenders.
Manhattan Senior U.S. District Judge Whitman Knapp was quoted as saying “[a]fter twenty years on the bench, I have concluded that drug laws are a disaster. It is time to get the government out of drug enforcement.” Simon Jenkins, A Policy Gone to Pot, Times Newspapers Limited, June 8, 1994.
In response to what Congress viewed as erratic and inconsistent sentencing behavior by some judges, be it too harsh or too lenient, it passed a series of federal sentencing guidelines that required mandatory minimums for drug offenses. While the Congress was attempting to implement uniformity in the federal sentencing process, by setting mandatory minimums, it was targeting the more lenient judges rather than the harsh judges.
Unfortunately, this action has not necessarily led to more appropriate sentences. In reality, the effect that mandatory minimums have had is not to reduce sentencing discretion but to merely transfer discretion from judges to prosecutors. See Common Sense for Drug Policy, Drug War Facts: Mandatory Minimums (last updated November 29, 2000), last accessed January 2, 2004, (citing Caulkins, J., et al., RAND Corporation, Mandatory Minimum Drug Sentences: Throwing Away the Key or the Taxpayers\\\’ Money?, 24 (1997)).
Now the prosecutors, rather than the judges, hold the discretion to decide whether to offer plea bargains, reduce charges, and to determine what will ultimately be the final sentence. Id. at 16-18. Recently, Chief Justice William Renhquist lambasted the Congress’s attempts to further reduce judicial discretion with regard to federal sentencing guidelines. See Bill Mears, Rehnquist Slams Congress Over Reducing Sentencing Discretion, CNN.com, (January 1, 2004).
The Chief Justice criticized the Congress for not consulting the judiciary before limiting judges’ ability to impose lighter sentences. In his annual report he said the Protect Act, which was passed in May of this year, further strips judges of their judicial independence.
Those in charge of administering justice in drug cases are aware of the flaws in adjudicating a dysfunctional drug policy, but the perils of this system flow deeper and wider. Consider that between 1984 and 1999, the number of defendants charged with a drug offense in U.S. district courts more than doubled from 11,854 to 29,306 and now criminal filings have reached a record 70,642. See John Scalia, US Dep’t of Justice, Bureau of Justice Statistics, Federal Drug Offenders, 1999 with Trends 1984-99, 7 (August 2001). [hereinafter “Federal Drug Offenders 1999”].
Furthermore, the budget of the Federal Bureau of Prisons has risen from $220 million in 1986 to $4.3 billion in 2001. See Common Sense for Drug Policy, Drug War Facts: Prisoners (last updated November 29, 2000), last accessed January 2, 2004 (citing US Dep’t of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics 1996, 20 (1997)), [hereinafter “Sourcebook of Criminal Justice Statistics”]; and Executive Office of the President, Budget of the United States Government, Fiscal Year 2002, 134 (2001). This is an increase of 1,954% since the Government’s enactment of mandatory minimum sentences for drug offenders. Id.
The incarceration of criminals is a multi-billion dollar industry. The federal government spends nearly $3 billion every year to keep drug offenders away from the public. According to the Office of National Drug Control Policy, the federal government gave the Bureau of Prisons $2.525 billion and the federal prisoner detention centers $429.4 million to incarcerate drug offenders and suspects. See Office of National Drug Control Policy, National Drug Control Strategy: FY 2003 Budget Summary, 7-9, Table 3 (February 2002) (last accessed January 2, 2004).
This is striking when prisoners sentenced for drug offenses constituted the largest group of inmates in Federal prisons in 2001. Those convicted of drug offences made up 55% of the federal prison population. See Paige M Harrison. & Allen J. Beck, Ph.D., US Dep’t of Justice, Bureau of Justice Statistics, Prisoners in 2002, 11 (July 2003). [hereinafter “Prisoners in 2002”]. Id.
Over 80% of the increase in the federal prison population from 1985 to 1995 was due to drug convictions. See Christopher J. Mumola & Allen J. Beck, Ph.D., US Department of Justice, Bureau of Justice Statistics, Prisoners in 1996 (1997).
As a result of increased prosecutions and longer time served in prison, the number of drug offenders in Federal prisons increased more than 12% annually, on average, from 14,976 during 1986 to 68,360 during 1999. See Federal Drug Offenders 1999, supra note 11, at 7.
Despite being often touted as the world’s freest country, the United States has the highest prison population rate in the world. In the United States 701 citizens out of 100,000 are incarcerated, followed by the Cayman Islands with 664, Russia with 638, Belarus 554, Kazakhstan 522, Turkmenistan 489, Belize (459), Bahamas 447, Suriname 437 and Dominica 420. However, more than 62.5% of countries have rates below 150 per 100,000. The United Kingdom\\\’s rate is 139 per 100,000 of the national population. See Paige M Harrison. & Allen J. Beck, Ph.D., US Dep’t of Justice, Bureau of Justice Statistics, Prisoners in 2002, 2 (July 2003) [hereinafter “Prisoners in 2002”] and Roy Walmsley, UK: Home Office Research, Development and Statistics Directorate, World Prison Population List, 1 (4th ed 2003).
All in all, by the end of 2002, the United States was incarcerating 2,166,260 citizens. In 2001 there were 1,361,258 individuals in federal and state prisons, 16,206 in territorial prisons, 665,475 in local jails, 8,748 in INS facilities, 2,377 in military facilities, 1,912 in Indian reservation jails, and 110,284 in juvenile facilities. Id. at 1.
To meet the soaring demands for labor, construction, and maintenance, as well as the legal and judicial activities of this vast prison empire, in 1999 alone the United States spent a record $147 billion. This amount includes all state and federal spending for police protection, corrections, and judicial and legal activities. The Nation\\\’s expenditure for operations and outlay of the justice system increased 309% from almost $36 billion in 1982. Discounting inflation, that represents a 145% increase in constant dollars. See Prisoners in 2002.
Drug offenders receive harsher punishments than even the most violent of criminals. See US Dep’t of Justice, Bureau of Justice Statistics, Federal Criminal Case Processing, 2000, With Trends 1982-2000, 12, Table 6 and figure 3 (November 2001). They receive longer sentences than violent offenders and are sent to prison at virtually the same rate. Id. The table below shows the average sentence imposed on Federal prisoners for various offenses in 2000. Id. at 12, Table 6. Drug felons received longer sentences than any other criminals including murderers and terrorists.
When the Bill of Rights was adopted in 1791, the Fourth, Sixth, and Eighth Amendments were enacted to protect citizens from unreasonable searches and seizures, excessive bails and fines, cruel and unusual punishments and to grant citizens the right to fair and impartial trials. U.S. Const. amend. IV, U.S. Const. amend. VI, and U.S. Const. amend. VIII.
Since the 1790’s both federal and state governments have continually sought to erode those rights in an effort to make enforcement of their regulations more convenient. In the name of the “War on Drugs,” the government’s ability to encroach upon these rights has greatly expanded.
The Fourth Amendment in particular comes under fire in the War on Drugs when the government seeks to seize property it deems to have a connection with a drug offense. The federal government’s forfeiture laws are very broad with over 22 major categories of offenses that give the federal government the right to seize private property. See 21 U.S.C. Section 881.
In a national survey conducted in 1991, it was reported that 80% of the people who had property seized were never charged with a crime. See Andrew Schneider & Mary Pat Flaherty, Presumed Guilty: The Law\\\’s Victims in the War on Drugs, The Pittsburgh Press, August 11, 1991.
Drug forfeiture is big business for law enforcement. They are highly motivated to seize property because they can keep what is seized for their departments. See United States Department of Justice, Un
ited States Attorney’s Manual, §9.111.000 (1997) (last accessed January 2, 2004).
In 1994, federal forfeitures totaled approximately $730 million. D. Heilbroner, The Law Goes on a Treasure Hunt, The New York Times, December 11, 1994, at Section 6, 70, (quoting the 1992 testimony of Cary H. Copeland, then director of the Justice Department\\\’s executive-office asset forfeiture unit).
Sadly, the ability of law enforcement to benefit from forfeited assets has “distorted governmental policy making and law enforcement.” The structure of the federal forfeiture laws and federal drug policy in general has the effect of creating an agenda that targets assets rather than crime, cause 80% of seizures to be unaccompanied by any criminal prosecution, makes plea bargains that favor drug kingpins and penalize the \\\’mules\\\’ without assets to trade, reverses stings that target drug buyers rather than drug sellers, cause an overkill in agencies involved in even minor arrests, and causes a massive shift in resources towards federal jurisdiction over local law enforcement. See E. Blumenson & E. Nilsen, Policing for Profit: The Drug War\\\’s Hidden Economic Agenda, 65 U. Chi. L. Rev. 35 (Winter 1998). The effect is a built-in incentive to target the assets of small-time drug offenders.
The War on Drugs disenfranchises citizens because in most states felons are denied the right to vote. In forty-six states prisoners serving felony sentences are prohibited from voting, while thirty-two states deny the vote to persons on probation or parole, and in fourteen of these states a convicted felon can be disfranchised for life.
Ten states permanently disenfranchise even rehabilitated felons who have served their sentences. Those states are: Alabama, Delaware, Florida, Iowa, Kentucky, Mississippi, Nevada, New Mexico, Virginia, and Wyoming. See Leonard E. Birdsong, Drug Decriminalization and Felony Disenfranchisement: The New Civil Rights Causes, 2 Barry L. Rev. 73 at 76 (2001).
Due to the disproportionate racial make up of prisons this results in a barrier to racial equality. The number of African-American men incarcerated in 2002 was equal to the number of black American slaves in 1820, that is 13% of all black men, totaling 1.4 million people. See Graham Boyd, New Voices on the War on Drugs: Collateral Damage in the War on Drugs, 47 Vill. L. Rev. 839 at 846 (2002).
Sadly, ten states are responsible for disenfranchising more than 20% of their black male population and in thirteen states there are more African-Americans incarcerated than there are in college. See Justice Policy Institute, Cellblocks or Classrooms? The Funding of Higher Education and Corrections and Its Impact on African American Men, 10 (2003), and John Irwin Ph.D., Vincent Schiraldi, and Jason Ziedenberg, Justice Policy Institute, America\\\’s One Million Nonviolent Prisoners, 4 (1999).
The disparaging incarceration rates of minorities are clear. Today, 1 in 4 black men aged 20 to 29 are in prison, and 1 in 3 are on parole or probation. See Ira Glasser, American Drug Laws: The New Jim Crow, 63 Alb. L. Rev. 703, 719 (2000).
Newborn African-American males in the U.S. have a 25% chance of going to prison, while Hispanics have a 17% chance, and whites have a 4% chance. See Thomas Bonczar, & Allen J. Beck, US Dep’t of Justice, Bureau of Justice Statistics, Lifetime Likelihood of Going to State or Federal Prison (March 1997).
Furthermore, minorities are more likely to be prosecuted for drug offenses. Whites, who compose 80% of all drug users, represent only 12% percent of those arrested on drug charges, yet African-Americans comprise about 13% of drug users but represent 74% of those sentenced. See Coramae Richey Mann, We Don\\\’t Need More Wars, 31 Val. U. L. Rev. 565, 567 (1997), quoting Marc Mauer and Tracy Huling, The Sentencing Project, Young Black Americans and the Criminal Justice System: Five Years Later, at 9, 13 (1995).
This means that blacks are sent to prison for drugs 13 times more than whites. Human Rights Watch, Racial Disparities in the War on Drugs (2000) (last accessed January 2, 2004). The War on Drugs is a formidable barrier to equality and civil rights when one considers that so many minorities are incarcerated and that the prosecution of drug offenses accounts for such a large portion of prison populations despite the fact that minorities are not responsible for lion’s share of the drug use.
Drug Courts were developed in the late 1980’s as a response to dealing with non-violent, drug addicted offenders that were clogging the criminal justice system. They are special courts, not unlike, family courts, or probate courts that are tasked with specifically dealing with non-violent drug offenders.
They all have there their own sets of similar procedures that are generally limited to offenders who commit drug related crimes that are absent violence or felony activity and are specifically targeted at providing treatment to those who suffer from addiction. To date there are over 1,000 drug courts in operation across the United States that have a 70% retention rate with over 300,000 participants. Drugs Court Facts (2004) (last accessed March 11, 2004).
The key difference between drug courts and any other court system in American jurisprudence is role that intervening parties play in the system. Rather than the traditional adversarial system, drug courts employ a system that is targeted at providing substance abuse treatment to the offenders.
The drug court takes a “team” approach to providing treatment whose members consist of the judge, the prosecuting attorney, the probation officer or treatment provider, and the defense attorney. In this flexible system the defendant can benefit from the possibility of overcoming his addictions while the court maintains an elevated level of authority. The judge in a drug court has authority to levy a variety of sanctions for non-compliance.
This system can create friction in the traditional roles of defense attorneys. Criminal defense attorneys must balance their obligations to zealously represent their clients’ legal interests with the considerations of helping the client overcome the addictions.
Many times, defendants must plead guilty to offenses before they can become eligible to participate in such treatment programs. The dilemma for the defense involves choosing a legal defense strategy that might lead to liberty and or acquittal for the client absent treatment, or treatment bundled with a guilty plea that might bring the stigma of a criminal record or even a precious strike in a “three strikes your out” criminal justice system.
Drug courts have successfully graduated hundreds of thousands of former addicts from their programs and have helped many free themselves from the perils of addiction. Unfortunately, drug court initiatives do not answer all of the problems of drugs in America. Consider that these courts are as yet only limited to the states, there are no federal drug court programs. Further, many of the problems of the drug trade are borne of the socio-economic problems of our inter-cities and border regions that offer little hope of escape.
The economic allure of the drug trade is often more intoxicating than any addiction of the flesh. Drug courts that target addiction completely miss this huge component of the drug trade. Finally, unless an offender is
gripped with addiction the decision to choose a guilty plea and take treatment is not that inviting. Drug courts are quite worthy and a step in the right direction when in comes to giving aid to addicts but offenders that do not suffer from addiction still bear the brunt of the costs of an endless Drug War.
Illicit drug use is by no means a healthy endeavor for individuals to pursue, but clearly the costs of the War on Drugs are not justified. There are countless alternatives to the War on Drugs and they run the gamut from complete legalization, to heavy regulation.
When will our political leaders have the courage to make the bold statements that we can all see in front of us? Many fear it is too late. Our Bill of Rights may have been so crippled by the War on Drugs that it will not withstand the next round of assaults that are sure to come from the new War on Terror.
The government would have us believe that we as a society do not possess the ability to control our passions with regard to drug use, yet it is less adamant about saving us from the perils of alcohol abuse or corporate greed. We can be reminded of the famous quote from Mahatma Gandhi as he and the Indian people were fighting for independence from British colonial rule: “Freedom is not worth having if it does not include the freedom to make mistakes.”
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