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The Drug Policy Task Force, sponsored by the New York Country Lawyers' Association, commenced its operations in the Fall of 1993. The Task Force was established as a "blue-ribbon" panel of prominent and respected individuals, each known for his or her work, insights and involvement in the area of drug policy reform.
The stated purpose of the Task Force has been to develop and urge implementation of rational and workable alternatives to current drug policy on both the state and federal levels.
In an effort to develop a comprehensive and well-balanced approach to future drug policy, participants of the Task Force were drawn from various disciplines, including legal, medical and academic, as well as from each branch of government -- legislative, judicial and executive.
After extensive study, public hearings, discussion and analysis of various issues within the broad scope of the drug policy debate, this working body now offers its "Report and Recommendations" for public consideration.
The work of the Task Froce, toward development of a comprehensive, multidisciplinary approach to an effective and responsible drug policy, and in tackling the difficult issues involved in this important area, is ongoing. The "Report and Recommendations" which follow should be read and considered in the context of the continuing nature of this endeavor.
Alan B. Fischler
(This report has been approved and adopted by the Board of Directors of the New York County Lawyers' Association. NYCLA is one of the largest local bar associations in the nation.)
Additional copies of this report are available at a cost of $4 each.
(You may contact the Chair of the NYCLA Drug Policy Task Force directly by E-Mail at AlFischler@aol.com.)
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Charles D. Adler, Esq.
Center for Community Alternatives
Hon. Sal F. Albanese
Member, N.Y.C. City Council
Robert M. Baum, Esq.
Attorney-in-Charge, Legal Aid Society
Hon. Harold Beeler
Justice, N.Y.S. Supreme Court
New York County
Kildare Clarke, M.D.
Kings County Medical Center
David C. Condliffe
The Drug Policy Foundation
Norman Corenthal, Esq.
Borough Chief, N.Y.C. Law Department
Family Court Division, Queens County
Hon. Stephen G. Crane
Justice, N.Y.S. Supreme Court
New York County
Hon. Lewis L. Douglass
Justice, N.Y.S. Supreme Court
Prof. Ernest Drucker, Ph.D.
Director, Division of Community Health
Montefiore Medical Center
Albert Einstein College of Medicine
Sheila Dugan, Esq.
Hon. Laura Safer Espinoza
Judge, N.Y.C. Criminal Court
New York County
Lynn Fahey, Esq., Former Deputy Attorney-in-Charge, Legal Aid Society,
Criminal Appeals Bureau
Alan B. Fischler, Esq.
Chair, NYCLA Drug Policy Task Force
Hon. Joseph L. Galiber*
N.Y.S. Senator, Bronx Co.
Correctional Association of New York
Hon. Abraham Gerges
Justice, N.Y.S. Supreme Court
Prof. Shanara Gilbert*
CUNY School of Law
Prof. Keri A. K. Gould
Director, Externship Programs
Fordham University School of Law
Special Assistant for Public Safety
Office of the Manhattan Borough President
Linda Kenepaske, Esq.
Hon. Whitman Knapp
Judge, U.S. District Court
Southern District of New York
Hon. Joseph R. Lentol
Member, N.Y.S. Assembly
Michael Z. Letwin, Esq.
Association of Legal Aid Attorneys
David C. Leven, Esq.
Prisoners' Legal Services of New York
Juliette S. Levin, Esq.
Hon. Yvonne Lewis
Justice, N.Y.S. Supreme Court
Rhea Schaenman Mallett, Esq.
Correctional Association of New York
Hon. William I. Mogulescu
Judge, N.Y.C. Criminal Court
New York County
John P. Morgan, M.D.
Professor of Pharmacology
CUNY Medical School
Patrick V. Murphy
Director, Criminal Justice and Public Policy Programs
U.S. Conference of Mayors
Ethan A. Nadelmann, J.D., Ph.D.
Leonard Noisette, Esq.
Neighborhood Defender Service of Harlem
James Ostrowski, Esq.
Vera Institute of Justice
Thomas Sheehan, Esq.
Attorney, Queens County
Jesse Sligh, Esq.
Executive Assistant District Attorney
Office of the Queens County District Attorney
Hon. Robert W. Sweet
Judge, U.S. District Court
Southern District of New York
Deborah Weich, Esq.
Secretary, NYCLA Drug Policy Task Force
Hon. Jack B. Weinstein
Senior Judge, U.S. District Court
Eastern District of New York
Lynn Zimmer, Ph.D.
Associate Professor of Sociology
CUNY at Queens College
* We mourn the passing of Joseph L. Galiber, a tireless and articulate advocate of reason, whose voice shall be sorely missed. We also regret the loss of Shanara Gilbert, and shall miss the thoughtful contributions she made to our discussions.
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It has become a widely accepted fact that drug policy, as employed during the past three decades by the federal government, and in state and local jurisdictions throughout the United States, has largely failed to meet its stated objectives.
Current drug policy relies on an "enforcement" or "penal" model, emphasizing interdiction, arrest, prosecution and incarceration of both distributors and users of controlled substances as its primary "weapons" in what has often been characterized as a "war on drugs." Commonly known substances generally designated as "controlled" or illegal include: hallucinogens (marijuana, hashish, mescaline and LSD), stimulants (amphetamines and cocaine), and depressants (opium, heroin and barbiturates). (1)
Notwithstanding the vast public resources expended on the enforcement of penal statutes against users and distributors of controlled substances, contemporary drug policy appears to have failed, even on its own terms, in a number of notable respects. These include: minimal reduction in the consumption of controlled substances; failure to reduce violent crime; failure to markedly reduce drug importation, distribution and street-level drug sales; failure to reduce the widespread availability of drugs to potential users; failure to deter individuals from becoming involved in the drug trade; failure to impact upon the huge profits and financial opportunity available to individual "entrepreneurs" and organized underworld organizations through engaging in the illicit drug trade; the expenditure of great amounts of increasingly limited public resources in pursuit of a cost-intensive "penal" or "law-enforcement" based policy; failure to provide meaningful treatment and other assistance to substance abusers and their families; and failure to provide meaningful alternative economic opportunities to those attracted to the drug trade for lack of other available avenues for financial advancement. (2)
Moreover, a growing body of evidence and opinion suggests that contemporary drug policy, as pursued in recent decades, may be counterproductive and even harmful to the society whose public safety it seeks to protect. This conclusion becomes more readily apparent when one distinguishes the harms suffered by society and its members directly attributable to the pharmacological effects of drug use upon human behavior, from those harms resulting from policies attempting to eradicate drug use. (3)
With aid of these distinctions, we see that present drug policy appears to contribute to the increase of violence in our communities. It does so by permitting and indeed, causing the drug trade to remain a lucrative source of economic opportunity for street dealers, drug kingpins and all those willing to engage in the often violent, illicit, black market trade.
Meanwhile, the effect of present policy serves to stigmatize and marginalize drug users, thereby inhibiting and undermining the efforts of many such individuals to remain or become productive, gainfully employed members of society. Furthermore, current policy has not only failed to provide adequate access to treatment for substance abuse, it has, in many ways, rendered the obtaining of such treatment, and of other medical services, more difficult and even dangerous to pursue. (4)
The appropriate goal of any drug policy must be to decrease the prevalence and spread of harmful drug use and substance abuse, and to minimize the harms associated with such problems where they are found to exist. (5) Additionally, any policy which creates more harmful results than the societal problems it proposes to solve, must be re-evaluated in terms of the advisability of further pursuit of such policy. Further, to justify continuation of any public policy, the costs incurred must always be weighed against the benefits derived. It is within this context, and with these criteria in mind, that present approaches to drug policy must be objectively assessed and, where appropriate, alternative models for future policy evaluated and considered. (6)
In making its assessment, the Task Force has concluded that contemporary drug policy has failed by virtually every objective standard. Accordingly, we call for a dramatic shift in thinking and approach in development and implementation of future drug control efforts. At this time, although not recommending "decriminalization" or "legalization" of most substances currently designated as "controlled" under federal and state penal statutes, the Task Force does urge that certain incremental steps be taken to alleviate the more easily resolved economic and social costs associated with current drug policy. These include: the decriminalization of marijuana; further measures attempting to separate the "hard" drug markets (e.g., for heroin and cocaine), from markets for "soft" drugs (e.g., marijuana and hashish); the downward modification of existing draconian sentences for other non-violent drug offenses; the elimination of mandatory minimum sentences in drug cases; and increased judicial discretion in the sentencing of drug offenders, with further reliance upon drug treatment and other diversionary programs as alternatives to incarceration for the non-violent drug offender. Moreover, we highly recommend the further study and serious consideration of other alternative, non-criminal, regulatory drug control measures, developed in accordance with a "public health" rather than a "penal" model of drug policy.
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Whether viewed in isolation or on balance with the benefits derived, there can be no question that the economic costs of contemporary drug policy, as employed on the federal and state levels, have proved unacceptably high. Indeed, as we face a future of increasingly limited resources, the continuation of present policy, with overwhelming emphasis on the arrest, prosecution and incarceration of drug offenders, will produce exponential growth in expenditures required to accommodate and maintain this policy. (7)
As a result of the stepped up incarceration of "drug offenders" during the past three decades, since the early 1970's, our nation has seen an alarming increase in the number of individuals incarcerated within its borders. (8) Meanwhile, in addition to all other resources utilized, the need for additional prison beds and increased correctional budgets has also grown exponentially, on both state and federal levels. (9)
Other unacceptably high costs in the present "penal-based" model of drug policy have been: court budgets strained beyond capacity, affecting the ability of our court systems to adequately address both criminal and civil cases coming within their respective jurisdictions; large portions of federal, state and local law enforcement resources devoted to drug interdiction, arrest and prosecution; large portions of federal and state prosecutors' budgets devoted to drug cases; increased costs for court appointed public defenders; and growing budgets for other national and international drug enforcement efforts -- all exacting a substantial drain on the increasingly limited financial resources of the nation.
Further, the exponential growth in the number of individuals incarcerated throughout the nation has already, and will increasingly, cause incalculable economic costs in terms of: lost productivity of those individuals incarcerated; state support of families deprived of breadwinners; and the economic decline of impoverished communities through incarceration of great numbers of those in the prime of their productive lives, and their reduced earning capacity upon release from prison.
The adverse effects of current drug policy have been felt most profoundly in the urban centers of our nation. The imposition of penal sanctions for drug possession and sale has proven a woefully ineffective and otherwise harmful means of attempting to control substance abuse in communities where, for some, drugs are often the only escape from the harsh realities of poverty. In a climate where there is no treatment on demand, criminalizing the substance abuser may be viewed as profoundly inhumane and counterproductive.
Imprisoning individuals for drug use causes further detriment to those individuals and their families, destroying family cohesion and undermining rehabilitation efforts. (10) The increase in fatherless and motherless homes, which the current policy of emphasis on incarceration causes, is extraordinarily disruptive to the family unit, where often, those harmed the most are the children. The separation of children from their primary caretakers due to long term imprisonment, often results in a marked decline in the quality of shelter, nutrition, medical assistance and emotional nurturing. Studies have shown that children whose primary caretakers have spent significant amounts of time in prison are more likely to manifest symptoms of anxiety, depression, behavioral difficulties and juvenile delinquency, which may often be followed by adult criminal activity. (11) Many of these children, often left in the care of less able caretakers, have turned to peer relationships with gangs, seeking to establish a family substitute. (12)
The criminalization and consequent stigmatization of drug users, whether or not accompanied by a period of incarceration, "marginalizes" users, since a criminal record decreases the likelihood of successful employment and complete rehabilitation, while continuing to impact upon family finances. This, in turn, exacerbates financial and social instability in households, and financial and emotional instability in neighborhoods, while burdening otherwise stretched resources of public assistance programs.
Moreover, the increased enforcement of civil forfeiture laws has further undermined the security and stability of families. Recognizing a growing trend of evictions and asset forfeiture as a further weapon employed in the "war on drugs," entire families have lost and continue to lose homes and other substantial assets for the acts of a single household member, thereby punishing even drug-free members of the community. (13)
The black market created by drug prohibition turns neighborhoods into war zones -- through turf wars over the huge profits to be made in the illicit drug industry, violent altercations over drug transactions gone bad, and battles between local drug dealers and law-enforcement officers. The increase in violent street crime which this situation engenders, aggravated by the experience of violent prison culture which incarcerated offenders bring back to their neighborhoods upon release, creates a dangerous situation for all members of inner city communities.
Moreover, the street culture of guns and violence spawned by the drug trade spills over into other social interaction in urban neighborhoods, with violence becoming a commonly accepted mode of conflict resolution. Community residents live in fear of the violent street culture generated, in large part, by the black-market drug trade, and the increased incidence of innocent pedestrians struck in the cross-fires or by stray bullets from battles involving participants in the drug trade. (14)
History has shown us that even in an atmosphere of prohibition and criminalization of drug dealing, participation in the drug trade will continue to be widespread, since it indisputably provides the greatest entrepreneurial opportunity to many in poorer communities. There is a strong economic motivation for young people and those who might otherwise be legally employed and law-abiding to engage in the sale of drugs, due to the high profits generated by the illicit industry in an environment of drug prohibition, and the dearth of opportunities for poor, uneducated youth in the legitimate job market.
Harsh sentencing laws themselves lead to the active recruitment of children and first time offenders (frequently women - "drug mules") into the drug trade, so that dealers themselves can escape such penalties. (15) Evidence further reveals, that due to the great economic incentives represented by the illicit drug trade, when one street dealer is temporarily incapacitated by incarceration, there is a ready supply of others waiting in the wings to fill the gap in the market. As such, not only does the widespread incarceration of low-level drug dealers fail to deter others from entering into the drug trade, it arguably draws more individuals into the illegal trade than would otherwise occur without the periodic removal of many of its participants. (16)
Moreover, the deterrence rationale of harsh sentencing does not necessarily operate among the drug dealing community as might be anticipated, where many assume the extraordinary risks already involved in the violent but lucrative illicit drug trade. As one observer has noted:
"Apprehended dealers are replaced from a seemingly bottomless pool, for jail is not a deterrent to those who daily risk death in the drug trade." (17)
Additionally, with respect to users of certain controlled substances, it appears questionable that conventional deterrence theory can be meaningfully applied where substance abuse may be accompanied by physical addiction.
Finally, a social byproduct of the misplaced allocation of financial resources which concentrates huge expenditures on the apprehension and imposition of penal sanctions on drug users and local drug dealers, is a clogged criminal justice system unable to focus on society's larger crime problems. Courts jammed with drug cases inevitably results in insufficient resources available to properly attend to these and other more serious crimes appearing on overburdened court dockets. This logjam leads to instances of "revolving door" justice even for violent criminals, since the system simply cannot handle the overload. (18) A further result of these conditions is a perceived trivialization of violent crime itself, reinforced by a penal scheme which punishes drug crimes as severely or more severely than many criminal acts of violence.
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The Task Force views substance abuse as, first and foremost, a public health issue. Accordingly, it appears that problems of substance abuse would be more appropriately and effectively addressed within our health care delivery systems, rather than by our law enforcement agencies, courts and correctional institutions.
The emphasis on a "penal" model of drug control results in reduced funding for drug treatment facilities. This is an unfortunate irony, since, as concluded by RAND researchers in a 1994 report, a dollar's worth of drug treatment is worth seven dollars spent on the most successful law-enforcement efforts to curb the use of cocaine. (19)
Moreover, the fear of arrest, stigmatization and even removal of their children from homes, (20) discourages substance abusers from taking advantage of those health care and counseling facilities which are available. (21) Pregnant women who are substance abusers are deterred from seeking adequate prenatal care, resulting in unhealthier children. A single positive drug test result during pregnancy can trigger mandatory reporting requirements. Therefore, the current policy of criminalization of drug use amplifies potential health hazards of substance abuse, and inhibits access to treatment, even for non-drug use related health care.
Since possession and sale of any controlled substance is illegal, dangerous drugs (which despite criminalization are still widely available on the black market) are completely unregulated. Under a scheme of criminalization, regulatory control is ceded to underworld figures, including violent, predatory and often ruthless criminals. This total lack of quality control of illicit drugs on the market results in more dangerous, adulterated drugs being produced and consumed, which, in turn, causes more disease and death from the use of controlled substances than would occur if the production and distribution of these drugs were regulated by, for instance, U.S. Food and Drug Administration safety regulations, warnings and other labeling requirements. (22)
The "zero tolerance" approach to the "drug problem," with its primary emphasis on law enforcement and penal sanctions, results in an absence of any quality control for illegal drugs widely consumed throughout the nation, and a lack of information concerning safer drug use. This presents further serious health costs brought on by current drug policy, which ignores the reality that some degree of drug use in our society is inevitable. This lack of public education and safety regulations dramatically, and unnecessarily, increases the health risks involved in the consumption of those drugs presently designated as illegal.
Accordingly, it appears that present drug control laws themselves, have directly led to an increase in the health risks associated with drug use and substance abuse. In addition to those dangers posed by lack of quality control and safety regulations governing illegal drugs, drug paraphernalia laws, together with a failure to promote needle exchange programs, have resulted in the preventable spread of AIDS and other similarly transmitted diseases to users, their partners and children. (23)
Moreover, easier interdiction of marijuana, (with a larger mass than other controlled substances), causes greater relative availability of "harder," stronger, more dangerous drugs (e.g., cocaine and heroin), which are easier to conceal, transport and distribute. Additionally, increased dangers to our youth and others who may consume "soft" drugs, (e.g., marijuana and hashish), result from failure of current policy to separate out the markets for "hard" drugs from those for "soft" drugs. Therefore, since consumption of all of these drugs is illegal, (and distributed in the same "black-market"), those who only purchase and smoke marijuana, for instance, are inevitably forced to come in contact with a more dangerous criminal element in order to obtain this relatively harmless substance. (24)
Violence associated with the illicit drug trade creates substantial public health problems, in the form of injuries and death. These health problems arise from effects of drug prohibition rather than substance abuse per se. Evidence suggests that gunshot wounds (due to "drug-trade related" violence) are more prevalent than overdoses ("drug-induced" injuries) in inner city hospital emergency rooms of major metropolitan areas. (25) Moreover, in addition to the empirical evidence, our nation's experience with alcohol prohibition suggests the validity of these observations. Once prohibition ended, so did the violence associated with black market alcohol distribution. (26)
"Drug prohibition" also causes an increased demand for more potent legal substances, like alcohol, which is decidedly more harmful than certain controlled substances, most notably, marijuana. (27) Moreover, current drug policy is found to be, in ways, arbitrary and inconsistent, since it has been proven that among the most dangerous commonly consumed drugs are tobacco and alcohol, both of which are legal. (28)
Finally, current drug policy discourages research into potentially therapeutic effects of psychotropic drugs, (29) e.g. "medical marijuana," which is known to alleviate the suffering of cancer patients and to be therapeutically beneficial in treatment of certain other diseases. (30)
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There exists a large and growing body of respected opinion and credible evidence which suggests that contemporary drug policy has failed to deter or reduce the prevalence of violent crime in our communities, notwithstanding harsh treatment of drug offenders under present "penal" or "law enforcement" based policy. Indeed, many observers have concluded that the current form of "drug prohibition" has generated a great deal of violence, much of it armed violence encountered in the lucrative underworld drug industry, and some deriving from law enforcement efforts themselves in the "war on drugs".
In analyzing these issues, we take great care to distinguish between violence caused by actual drug use or substance abuse ("drug-induced" violence), and violence caused as a byproduct of the high stakes involved in the illicit drug trade ("drug trade" or "drug prohibition" related violence). (31) This distinction is critical, because unless the causes of crimes and violence are accurately identified, no effective solutions can be found.
There is no doubt that some forms of drug use may result in undesirable, unacceptable and anti-social behavior. (32) However, it appears that the overwhelming causes of violent crimes, which often find categorization under the heading of "drug related," are caused by various factors unrelated to actual pharmacological effects of controlled substances upon human behavior. (33) Rather, much of the violent crime can be said to be "drug prohibition-related," insofar as it results from the high costs, huge profits and great stakes involved in the world of drug commerce as is carried on in cities, states and nations throughout the world. (34) Moreover, the complete banning of all forms of use and sale of controlled substances, including marijuana and hashish, has fostered an underworld black market, for both "hard" and "soft" drugs, where violence and weapons possession is part and parcel of doing business under conditions of illegality.
In cities throughout the United States, we find a proliferation of armed violence resulting from "turf" wars for control of territory for lucrative drug sales, together with regularly recurring dangerous and deadly altercations over drug deals gone bad. In addition to this community-based violence, there are "shoot-outs" between drug dealers and law enforcement officers, the latter developing the need for greater and more powerful weapons, only to be matched and then surpassed by those in the drug trade who have enormous profits, and personal liberty, at stake. The net result of these circumstances has been an extraordinary casualty rate for those involved in the drug trade, (35) injury and death to innocent bystanders "caught in the crossfires," injury and loss of life to law enforcement officers, and a prevailing atmosphere of violence in many inner city communities.
A further byproduct of these conditions is an increase of weapons possession, and thereby, the weapons trade, where use and sale of dangerous and increasingly powerful weapons have proliferated. This widespread possession and use of dangerous and deadly weapons has further resulted in the increase of armed violence in our communities, not always directly related to local drug wars, but fostered by the undercurrent of violence, guns and money supported by the drug trade.
We note other ways in which current drug policy is likely serving to exacerbate rather than alleviate violence in our communities. Over the past decades, stepped up law enforcement efforts, disproportionately carried out in our inner city communities, have resulted in large and increasing numbers of minority youth being brought within control of the criminal justice system. It is reported that almost 1 in every 3 young black men in the U.S., between the ages of 20-29, is presently within the control of the criminal justice system -- either in prison, on parole or on probation. (36) This figure is up from approximately 1 in every 4 as reported just 5 years ago. (37) Together with the destabilization of families and communities affected by wholesale removal of young men from their ranks, many individuals arrested and incarcerated for the inherently "non-violent" offenses of drug possession or sale, are then exposed to the violence of prison culture. This violence is, in turn, brought back to the communities to which these members invariably return.
Current drug policy's emphasis on drug arrests, prosecution and incarceration, also indirectly increases violence by diverting law enforcement, court and other criminal justice resources from concentration on violent crime and violent criminal offenders. Further, institutional pressures bear upon prosecutors to concentrate on drug case, since the availability of paid and trained police and other law enforcement officers, as primary witnesses in such cases, renders prosecution of drug cases easier and the statistical rates of conviction (or return) more favorable. (38) This is not to discount the political emphasis often placed on prosecution of drug cases, nor, of course, the obligation of prosecutors to process those cases in which legally supportable arrests under current law have been made. The net result has been a dramatic shift in the proportion of "non-violent" to "violent" offenders incarcerated in jails and prisons throughout the United States -- such shift decidedly toward imprisonment of "non-violent" drug offenders, (39) further stretching resources and limiting the ability of correctional institutions to hold and maintain "violent" offenders within their walls. (40)
On a more global level, there can be no question that the immense fortunes to be made by involvement in the underground, black market world of drug commerce, has resulted in enormous power and wealth for national and international narcotics cartels which, in the experience of various smaller nations, has threatened national security itself. (41)
It is clear, therefore, that the most dangerous threats to our security relating to drugs -- in our cities, throughout our nation and even, internationally -- derive not from the pharmacological effects of drug usage, but from the violence engaged in and power amassed by an entire industry of underworld figures, driven by the high costs and huge profits to be made in the illicit drug trade.
Searching our nation's history for similar experiences from which we may draw guidance, we turn, as many studying this issue have, to our national experience with alcohol prohibition during the early 20th century. (42) During that era of alcohol prohibition, it was the illegality of that "controlled substance," alcohol, which drove up its costs, caused a lucrative black market to develop, and supported a widespread growth in wealth and power for underworld figures and organizations. (43) This, in turn, brought on violence -- between competing bootleggers and racketeers, and between these underworld interests and law enforcement officers -- as well as other related and unrelated violence, much as we see today with respect to the drug trade, although on a much larger scale. In the case of drugs and "drug prohibition," the illegality of these substances has supported and perpetuated the violent culture and dangerous cartels which have profited from the resulting economic circumstances. As one commentator has remarked:
"People aren't killing each other because they are high on drugs, any more than Al Capone ordered the execution of rival bootleggers because he was drunk." (44)
In the final analysis, it appears evident that our nation's drug policy has not only failed to resolve the problems of violent crime, it has served to exacerbate them. Indeed, our nation's "war on drugs," as it has come to be known, has likely had the net effect of causing a more dangerous "war" to rage within our communities, with the only vision of the future appearing to be, if present trends continue, an increase in violence, the proliferation of weapons, a steady supply of new community based drug dealers, and the continued growth of ever-more dangerous "kingpins" and underworld organizations -- all driven by the engine of the lucrative, illegal drug trade.
It follows, therefore, that forms of "decriminalization," "legalization," or ending "drug prohibition," must be seriously considered as alternative directions for future drug strategy, however radical such ideas may presently appear. (45) Accordingly, the Task Force urges the further study of alternative, non-penal based models, in development of future drug policy.
In summary, it is abundantly clear that, whatever the harms presently caused by use and abuse of "controlled" substances in our nation, many of the more pressing concerns with respect to violence in our communities are unlikely to be solved until we find a way to take the profit out of the black market drug trade itself. If we continue to fail in addressing these issues in an objective, rational and progressive manner, we may find ourselves devoured by a larger, more dangerous beast of our own creation.
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The empirical evidence available clearly demonstrates that the adverse effects of current drug policy impact disproportionately on people of color. Although it is estimated that over 80% of drug users are white, minorities comprise 74% of those incarcerated for drug offenses. (46) Therefore, the injustices inherent in the enforcement and criminal prosecution of drug offenses impact more profoundly on communities of color.
Mandatory drug sentencing laws and the mass guilty pleas they entail lead to insufficient checks on improper police activity, since, generally, no trial or suppression hearings occur when a defendant pleads guilty, at which forums improprieties on the part of law enforcement officers may be exposed. Civil rights are eroded with the creation of additional exceptions to the Fourth Amendment's bar on warrantless searches (in what has effectively become the "drug exception" to the U.S. Constitution), while discriminatory stereotyping regarding the profile of a drug dealer leads to the more frequent search and seizure of people of color. Further, vaguely worded loitering and curfew laws, intended to curb drug dealing, are disproportionately enforced on inner city streets.
Other factors lead to a disparity in the racial makeup of those arrested for narcotics offenses. Wealthier white drug users make their purchases behind closed doors, in business districts and in more isolated suburban communities, away from the eye of law enforcement agents -- and therefore, more frequently escape detection. On the other hand, street dealers, and many drug users in inner city neighborhoods are considerably more exposed.
At the same time, a statistically high number of drug prosecutions result in convictions. This is largely due to the "professional" nature of witnesses involved in narcotics cases, and because drug offenders are typically apprehended as a result of "buy-and-bust" operations or pursuant to "observation sales," where police set up operations in designated "high crime" neighborhoods, so as to make undercover purchases from street dealers, and/or observe and apprehend individuals involved in street sale and purchase of narcotics. (47) Additionally, such community based "buy-and-bust" and other similar operations tend to concentrate on low level dealers and users rather than the drug kingpins, since street sellers and purchasers are simply easier to locate and apprehend.
Current drug policy has other irrational and discriminatory consequences, e.g. the disparate treatment of crack-cocaine offenders (generally poor people of color), versus powder-cocaine offenders (generally white, middle-upper class), and the inequitable prison sentences which this duplicity engenders. (48)
Due to lack of other forms of attention, by government and private industry, inner city neighborhoods have become the battleground for much of the drug trade, including enforcement efforts by police. Moreover, the great sums of money involved in the illegal drug trade encourages police corruption, leading to a breakdown of appropriate law enforcement efforts in these communities. Furthermore, broadly drafted civil forfeiture and other similar laws, providing for the eviction of entire families where one of its members may be involved in drug dealing, (49) are more frequently enforced in poor communities, leading to greater hardship in communities where higher numbers of black and Latino people reside.
In summary, many of the social costs outlined in Section II(B) above, are more profoundly felt in minority communities, to wit: high incarceration rates, increase in fatherless and motherless homes; active recruitment of children into the drug trade so that dealers can escape harsh penalties of the drug laws; greater financial and emotional instability in households; greater financial and social instability in neighborhoods; criminalization and stigmatization of many young members of these communities, affecting their future employability; serious injury to innocent bystanders caught in the "cross-fires" of rival drug dealers and their battles with police; and a pervasive street culture of guns and violence growing out of the drug trade affecting other forms of social interaction in urban neighborhoods, with violence becoming a commonly accepted mode of conflict resolution.
Since current drug policy so profoundly and disproportionately impacts upon people of color, review of present laws must be undertaken to remove any discriminatory bias, and steps taken to ensure that whatever drug control laws and strategies are employed in the future, that they are fairly conceived and even-handedly enforced.
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Women, particularly minority women, have disproportionately felt the adverse impact of the harsh drug sentencing laws. (50) A study of female "drug mules" was conducted by the Correctional Association of New York, (51) focused on prosecutions occurring in Queens, New York, where JFK International Airport serves as a major entry port for international travel. The Correctional Association found a startling increase in the number of women arrested and charged with "A-I" felony narcotics offenses, many of whom were first time arrestees. This was primarily a result of the combined effect of the accessorial liability statute and the "Rockefeller Drug Laws," so that women suspected of being used as couriers by drug smugglers frequently faced mandatory prison sentences of 15 and 25 years-to-life, even on their first arrest. (52)
The report further found that despite the fact that many of these women claimed to be unwitting agents of drug distributors, or marginally involved in drug operations, they did not go to trial because of the excessively high stakes involved. Plea bargain agreements, which guaranteed relatively short sentences of 3 years-to-life, was "too good" an offer to refuse, (although unconscionable under many individual circumstances), given the risk of a much more severe sentence if found guilty at trial. Many of these women were mothers, (53) unable or unwilling to risk being separated from their children for considerably longer periods in the event of conviction after trial, and therefore pleaded guilty even if they were innocent or able to present valid defenses to the offense charged.
In these cases, women are disproportionately affected by the lack of judicial discretion involved in the mandatory sentences statutes, regardless of any mitigating circumstances which may exist. (54) Due to draconian drug laws such as these, which often fail to distinguish between major and minor participants in drug cases, fail to provide any relief for first time offenders, or to allow reasonable consideration of other mitigating factors and/or individual characteristics of the defendant, the resulting rate of incarceration for women in Queens County, and for women throughout the U.S., has grown dramatically in recent years. This growth includes an increase of 275% from 1980 to 1992, in the total number of women incarcerated in the U.S.; and an increase of 433% during the five year period from 1986 to 1991, in the number of women incarcerated in state prisons for drug offenses. (55)
Even those women who are not defendants in drug cases are profoundly affected by current drug policy, with its emphasis on enforcement rather than rehabilitation. When fathers are incarcerated for drug use or sale, it is the women who are left to raise children in single parent households. When teenage boys become involved in the drug trade, it is their mothers who are evicted when civil forfeiture laws are enforced. When men who are injection drug users share needles because of lack of availability of clean needles, the women they sleep with risk HIV infection.
For those women who have substance abuse problems, a combination of mandatory reporting requirements and the child abuse and neglect laws serve to deprive them of access to medical services, pre-natal care, and even substance abuse counseling. (56)
A further disturbing trend has emerged in states throughout the nation, wherein pregnant women and new mothers, suffering from substance abuse problems, face criminal prosecution on serious charges, including drug distribution, assault and murder, upon theories that such drug use, while pregnant, constitutes "delivery" of drugs to the unborn fetus. (57) In these cases, it is asserted that injury to the unborn and newly born infant justifies imposition of severe criminal sanctions upon the female drug user. These criminal prosecutions represent a new and novel category of penal sanctions, (58) from which men are entirely excluded -- another unfortunate result of our nation's current punitive approach to drug policy.
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As a general principle, where respect for the integrity of government is severely compromised, its ability to govern and the rule of law itself breaks down. In this regard, we note that past decades of drug policy, characterized by use of draconian penal sanctions, has resulted in legislative and enforcement measures of questionable wisdom and validity.
Integrity of government and, specifically, respect for its representatives in the law enforcement community has been further eroded by repeated incidents of individual and systemic police corruption relating to the lucrative, black-market drug trade with which many law enforcement officers come into contact. Meanwhile, extreme harshness of drug laws, often requiring draconian mandatory minimum sentences in the event of conviction after trial, causes widespread plea bargaining and entry of guilty pleas, even where such pleas are inappropriate. This results in insufficient checks on improper police activity, generally tested at hearings or trial of such cases. It further results in the criminal conviction of innocent individuals, and incarceration of many such individuals, (albeit for shorter periods than had they been convicted after trial). A further product of these circumstances, is the widespread deprivation to individuals of the right to due process of law (through inability to risk trial), and overall loss of confidence in the ability to obtain fair treatment in our courts of justice.
Furthermore, there is a growing lack of respect for a justice system where drug use or sale, although not generally viewed as being as dangerous or morally reprehensible as the perpetration of violent crime (e.g., robbery, assault, murder), is nevertheless prosecuted more frequently, and more consistently. We must also be mindful of the "trivialization" of violent criminal conduct, fostered by undue emphasis upon drug law enforcement and by a penal scheme which punishes drug crimes as severely or more severely than many violent crimes. In New York, for example, the sale of a $10 dollar quantity of cocaine (a Class B felony) is treated as severely as the serious felonies of armed robbery and rape, and more severely than the highest charge of assault, i.e., crimes resulting serious physical injury (a Class C felony). (59)
The inordinate concentration on street-level drug users and sellers, (generally in inner city neighborhoods, often regarded to as "high crime" areas), has resulted in the disproportionate and discriminatory impact of drug laws upon people of color throughout our nation. (60) Moreover, widespread injustice often results from the imposition of unduly harsh prison sentences upon drug offenders, pursuant to mandatory minimum sentencing statutes, even for first time offenders playing peripheral roles in the drug offenses with which they are charged. (61)
Additionally, the substantial and relentless street-level enforcement of drug laws, targeted mainly at youth populations in our inner city communities, (unmatched by efforts to reduce violent crime), has resulted in an atmosphere of police at "war" with the community, and garnering a growing disrespect for law enforcement and the perpetuation of an "us-against-them" mentality with respect to both the law enforcement community and the government which it represents.
The erosion of civil liberties tolerated in the name of the "war on drugs," has become so extreme that some commentators have gone so far as to claim that "[t]he Bill of Rights is in danger of becoming meaningless in cases involving drugs." (62)
The perceived imperative of waging the drug war has twisted constitutional protections against unreasonable searches and seizures by state officials beyond all recognition, setting an ominous precedent for the widespread violation of individual rights which inevitably extends to other governmental activities. What might be called the "drug exception" to the Constitution threatens the civil liberties of every citizen, since precedents set in the context of a drug case are later cited to justify limitations of civil rights in other contexts. As has been further noted:
"The Supreme Court has permitted warrantless searches of automobiles, the use of anonymous tips and drug-courier profiles as the basis for police searches, and the seizure of lawyers' fees in drug cases. Property on which marijuana plants are found can be forfeited even if the owner is charged with no crime." (63)
Also subject to continuing erosion are our citizens' rights to privacy in the name of the "drug war," represented by unwarranted and unjustified drug testing of employees, property searches of children, and other intrusions into the lives of individuals not otherwise implicated in any criminal conduct so as to justify such intrusions. For example, all federal employees are required to submit to urine testing. (64) Such testing has also become commonplace in private industry, not otherwise confined by constitutional limitations but, nevertheless, encouraged by governmental policies.
Serious "due process" and moral implications arise through increased use of civil forfeiture laws, where innocent families are deprived of substantial assets and, at times, their homes, due to acts of a single household member, in which they had no involvement and over which they had no control. For example, the elderly mother of a drug dealer, who personally has not participated in any illicit activities, may be evicted from her home on the grounds that drug related activities were taking place under her roof. Under these circumstances, the government need only show that there existed reasonable grounds to believe the property was subject to forfeiture -- i.e. that the home was being used for illicit drug dealing activities. The burden of proof then shifts to the owner (or lessee) of the property to prove by a preponderance of the evidence that the property is "innocent". (65) Meanwhile, innocent family members of suspected drug dealers may be rendered homeless.
Furthermore, there appears to have developed a trend towards penalizing innocent property owners, where the government, unable to succeed in its objectives through its own failed policies, has begun to shift obligations and responsibilities for eradicating drug activity to private citizens. For instance, in some jurisdictions, owners of residential apartment buildings may be deprived of their property through failure to evict suspected drug dealers or users, even where the government, with its law enforcement and prosecutorial powers, has been unable to convict such individuals of any criminal activity. (66)
In summary, punitive, draconian, and often irrational approaches to drug policy have, over time, caused unwarranted encroachments upon the civil rights of those within our borders. (67) These are often represented by exceptions to rights embodied in the U.S. Constitution, including rights guaranteed under the Fourth Amendment and the right of individuals to "due process of law," in diverse areas and at various levels of governmental involvement. (68)
Therefore, to preserve the integrity of government itself, particularly impacted by our nation's drug policy, we must reassess our goals (which must be realistic), the purpose and values implicit in those goals, as well as the means and policies by which we hope to achieve betterment of our society. In reassessing the appropriate direction for future drug policy, we must first acknowledge that a drastic change in thinking and approach is clearly called for. Our government's continued pursuit of a failed, punitive policy, which serves not to provide help and aid to those in need of assistance, but rather, to "criminalize," "marginalize" and "alienate" growing numbers of its population, ultimately causes more harm than good, garners disrespect for its institutions, and raises the question of its ability to fairly and effectively govern.
Accordingly, we must set out on a course to devise a policy which inspires confidence for positive and meaningful progress in combating substance abuse, violence, and other related problems in our society. In embarking on such path, we would do well join with the medical profession in adherence to the "Hippocratic oath," which in its most common form of expression instructs: "First, do no harm".
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Association of the Bar of the City of New York, A Wiser Course: Ending Drug Prohibition, 49 The Record, No. 5, at 523 (June, 1994).
Barbara Bloom, Incarcerated Mothers and Their Children: Maintaining Family Ties.
Barbara Bloom & David Steinhart, Why Punish Children? A Reappraisal of the Children of Incarcerated Mothers of America (1993).
P. Bourgois, Just Another Night on Crack Street, New York Times Magazine, November 12, 1989, at 65.
Bureau of Justice Statistics, U.S. Department of Justice, Drugs, Crime and the Justice System, at 195 (December, 1992).
Bureau of Justice Statistics, U.S. Department of Justice, Prisoners in 1993, (1994).
Duncan Campbell, Debate that Fails the Dope Test, Guardian (U.K.), May 15, 1993, at 24.
Todd R. Clear, Tougher is Dumber, New York Times, December 12, 1993, at 21.
Correctional Association of New York, Injustice Will Be Done: Women Drug Couriers and the Rockefeller Laws, (February, 1992).
Correctional Association of New York & The New York Coalition for Criminal Justice, Imprisoned Generation (September, 1990).
Department of Health & Human Services, National Household Survey on Drug Abuse, SAMHSA, (1993).
Department of Justice, Report: Two-Thirds of Non-Violent Offenders Serving Mandatory Minimum Sentences, The Drug Policy Letter, Drug Policy Foundation, (Spring, 1994) at 28.
Charles B. DeWitt, Information Sharing: A Plus for Corrections Construction, National Institute of Justice Reports, (Jan/Feb, 1991).
Drugs & Crime Data Center & Clearinghouse, Fact Sheet: Drug Data Summary 1 (April, 1994).
Drugs & Crime Data Center & Clearinghouse, Fact Sheet: Drug Data Summary 2, (April, 1994).
Federal Bureau of Investigation, Crime in the United States, (1991).
Alan B. Fischler, The Incarceration of America, New York Law Journal (NYLJ) , 11/6/92, at 2.
Sen. Joseph L. Galiber, A Bill to Repeal Criminal Drug Laws: Replacing Prohibition with Regulation, 18 Hofstra L. Rev. 831 (1990).
Abraham G. Gerges, The Possible End to 'TASC Pleas', NYLJ 11/18/93, at 2.
Keri A. Gould, Turning Rat and Doing Time for Uncharged, Dismissed, Or Acquitted Crimes: Do the Federal Sentencing Guidelines Promote Respect for the Law?, 10 NYLS Journal of Human Rights 1 (1993).
L.A. Greenfield & S.M. Harper, Women in Prison, U.S. Bureau of Justice Statistics, Special Report (1991).
L. Grinspoon & J.B. Bakalar, The War on Drugs -- A Peace Proposal, 330 New England Journal of Medicine 357.
L. Grinspoon & J.B. Bakalar, Marihuana -- The Forbidden Medicine, (1993).
J. Jackson, A Real War on Drugs Can't Ignore Poverty, New York Newsday, September 18, 1989, at 58.
Hon. Whitman Knapp, Dethrone the Drug Czar, New York Times, May 9, 1993, Section 4, at 15 (Op-Ed).
Michael Z. Letwin, Report from the Front Line: The Bennett Plan, Street-Level Drug Enforcement in New York City and the Legalization Debate, 18 Hofstra L. Rev. 795 (1990).
Michael Z. Letwin, Wrong Way to Fight Crime, New York Times, October 6, 1990, at 23 (Op-Ed article).
Michael Z. Letwin, Sentencing Angela Thompson, NYLJ 4/18/94, p.2, col.3.
David C. Leven, Curing the Addiction to Punishing Addicts, NYLJ 5/24/93, at 2.
David C. Leven, Public Hearing Testimony Before the NYS Assembly Standing Committee on Codes on the Rockefeller Drug Laws - Twenty Years Later, Prisoners' Legal Services of New York, June 4, 1993.
L.F. Lowenstein, Recent Investigations into Criminality, The Criminologist, (1992) at 105.
Clarence Lusane, Pipe Dream Blues: Racism & the War On Drugs, (1991).
Marc Mauer, Americans Behind Bars: One Year Later, The Sentencing Project, (February, 1992).
M. Mauer & Tracy Huling, Young Black Americans and the Criminal Justice System: Five Years Later, The Sentencing Project, (October, 1995).
M. Mauer, Young Black Men And The Criminal Justice System: A Growing Problem, The Sentencing Project, (1990).
Ethan A. Nadelmann, Cops Across Borders, (1994).
Ethan A. Nadelmann, Should We Legalize Drugs? History Answers Yes, American Heritage, (February/March, 1993), at 42.
Ethan A. Nadelmann, Thinking Seriously About Alternatives to Drug Prohibition, 121 Daedalus 3, (Summer, 1992).
E. Nadelmann, A Rational Approach to Drug Legalization, American Journal of Ethics and Medicine, (Spring, 1991).
E. Nadelmann, Drug Prohibition in the United States: Costs, Consequences and Alternatives, 245 Science 939 (September, 1989).
E. Nadelmann, U.S. Drug Policy: A Bad Export, 70 Foreign Policy 92 (Spring, 1988).
James Ostrowski, The Moral and Practical Case for Drug Legalization, 18 Hofstra L. Rev. 607 (1990).
James Ostrowski, Thinking about Drug Legalization, Cato Institute Policy Analysis, No. 121, (May, 1989).
Pratt & Peterson, Civil Forfeiture in the Second Circuit, 65 St. John's L. Rev. 653 (1991).
Jill Leslie Rosenbaum, Family Disfunction and Female Delinquency, 35 Crime and Delinquency (1989).
C.P. Rydell & S.S. Everingham, Controlling Cocaine: Supply Versus Demand Programs, RAND (1994).
R. Sabbag, The Cartels Would Like a Second Chance, Rolling Stone Magazine, May 5, 1994, at 35.
J. Schuler & A. McBride, Notes From the Front: A Dissident Law-Enforcement Perspective on Drug Prohibition, 18 Hofstra L. Rev. 893 (1990).
N. Steinberg, The Law of Unintended Consequences, Rolling Stone Magazine, May 5, 1994, at 33.
M. Sviridoff, et al., The Neighborhood Effects of Street-Level Drug Enforcement: An Evaluation of TNT by The Vera Institute Of Justice, (August, 1992).
Hon. Robert W. Sweet & Edward A. Harris, Just and Unjust Wars: The War on the War on Drugs - Some Moral and Constitutional Dimensions of the War on Drugs, 87 Northwestern L. Rev. 1302 (1993).
Hon. Robert W. Sweet, The Abolition of Prohibition -- on Drugs, That Is, Mouthpiece, Journal of the N.Y.S. Association of Criminal Defense Lawyers, Vol. 5, No. 5, (Nov/Dec, 1992).
C. Torres, Legalize It?, The Nation, June 20, 1994, at 857.
University of California at San Francisco, The Public Health Impact of Needle Exchange Programs in the U.S. and Abroad, U.C.S.F. Institute for Health Policy Studies, (September, 1993).
Hon. Jack B. Weinstein & Fred A. Bernstein, The Unwarranted Denigration of Mens Rea on Drug Sentencing, Federal Sentencing Reporter, Vol. 7, No. 3, (Nov/Dec, 1994).
Hon. Jack B. Weinstein, The War on Drugs is Self-Defeating, New York Times, July 8, 1993 (Op-Ed).
P. Wilkinson, The Young and the Reckless, Rolling Stone Magazine, May 5, 1994, at 29.
S. Wisotsky, A Society Of Suspects: The War On Drugs and Civil Liberties, (1992).
L. Zimmer & J.P. Morgan, Exposing Marijuana Myths: A Review of the Scientific Evidence, The Lindesmith Center, (October, 1995).
L. Zimmer, Operation Pressure Point: The Disruption of Street-Level Drug Trade on New York's Lower East Side, Center for Research in Crime and Justice, N.Y.U. School of Law, (1987), at 9.
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1. See The Merck Manual, 16th Ed. (1992) at 1550; also see 21 U.S.C. §802, (regarding federal criminal classification of presently designated controlled substances).
Many of the more commonly known controlled substances were not illegal or "criminalized," until passage of the Harrison Act of 1914. Marijuana was banned in 1937. Alcohol was banned in 1920, although "decriminalized," by repeal of the 18th Amendment in 1933. While present drug policy has statutory "roots" dating back 80 years, we regard contemporary drug policy, as characterized by the emphasis on "stepped-up" law enforcement efforts and enhanced penal sanctions, a more recent development dating back three decades, to the early 1970's.
2. See National Household Survey on Drug Abuse (1993), U.S. Department of Health and Human Services, Substance Abuse and Mental Health Services Administration (SAMHSA), which reports that 12% of the total U.S. population, or 24 million persons within the U.S., had used illicit drugs within the past year. 77 million persons had used illicit drugs sometime during their life. In a similar survey, conducted in 1994, it was found that 10.8% of the total population, or 22.6 million persons had used illicit drugs some time during the previous year.
Further, a U.S. General Accounting Office report, released in 1989, noted the following findings: that drug abuse in the United States persisted at very high levels throughout the 1980's; that the amount of cocaine consumed in the U.S. doubled, while the price declined about 30%; that the price of heroin declined 20%, while the average purity of heroin sold had doubled; and that marijuana, while its use declined, continued to be readily available in most areas of the country. See James Ostrowski, Thinking About Drug Legalization, Cato Institute Policy Analysis (1989) at 28. Thus, notwithstanding huge expenditures in waging the "war on drugs," (see Section IIA, infra), drug use remains widespread throughout the nation, its costs have actually decreased and potency increased. See also, Joseph B. Treaster, Hospital Data Show a Rise in Drug Abuse, New York Times, July 9, 1992, at B1, (citing lower costs and greater purity of drugs, together with more young sellers entering the drug market due to unemployment, as reasons for upsurge in drug abuse in New York City. Further reporting on New York State Office of Alcoholism and Substance Abuse estimate of 200,000 heroin addicts in New York City alone.) See also Association of the Bar of the City of New York, A Wiser Course: Ending Drug Prohibition, 49 The Record, No. 5 (1994) at 544. Failures in ability of U.S. to prevent production and importation of narcotics, notwithstanding costly efforts, are also well documented. See E. Nadelmann, Cops Across Borders, (1993).
3. In aid of more meaningful and objective analysis of what has commonly been referred to as "the drug problem," care must be taken and appropriate distinctions made in using terms such as: "drug use," "substance abuse," "drug-related crime," and "drug-induced crime." Definitions of these terms having been blurred in the drug policy debate thus far, has led to a failure to properly analyze and distinguish harms caused by drug use, substance abuse, the drug-trade, and drug control policies themselves.
4. See "Public Health Consequences of Current Drug Policy," Section III, infra.
5. We acknowledge the reality, that forms of drug use and other potentially harmful behavior have, and always will be, engaged in by members of our society. Accordingly, we note that policies based on "zero tolerance" are unrealistic, unnecessarily harsh, and often counterproductive to reaching those in need of assistance.
6. Alternative models of drug policy which merit consideration include those incorporating principles of "harm reduction," which have received widespread acceptance among drug policy experts and by various governments throughout the world. "Harm reduction" strategies seek to analyze the phenomenon of substance abuse in society by identifying and isolating the actual societal harms caused by substance abuse, as well as policies employed to defeat it, and attempting to reduce those harms deriving from each. In seeking to reduce harms associated with drug use, "harm reduction" strategies include the expansion of needle exchange programs and methadone clinics, and education on safe drug use for that segment of the population who will continue to use harmful drugs. Meanwhile, such policy redirects law-enforcement efforts from attempts to eradicate all drug use, to concentration in areas where crime and public disorder continue to occur. We find this approach to be both more realistic and humane than present "zero-tolerance" based policy, with all its attendant costs, marginal results, and questionable use of available resources.
7. From 1973 to 1993 the total number of inmates held in prison and jail facilities throughout the U.S. quadrupled. Having doubled from 1973 to 1983, the years from 1983 through 1993 saw the total number of prisoners held in the U.S. double once again, from 660,800 to 1,408,685. During this period, the number of incarcerated drug offenders rose 510%. It is estimated that in 1990, when the number of individuals incarcerated in U.S. jails and prison facilities reached 1.1 million, the cost of incarcerating these individuals was approximately $20.3 billion, with an anticipated need to double prison facilities in the federal system.
In some states, such as New York, the figures are even more startling, New York having seen its inmate population almost triple during the period from 1981 through 1991. In only six years, from 1983 to 1989, the state saw the annual number of individuals imprisoned for drug offenses grow 500%. By 1990, felony drug convictions in New York represented 50% of all felony convictions handed down by its state courts, up from 11.6% in 1980. As of 1992, New York State anticipated the need for eight new prisons, at an approximate cost of $220 million to build one prison, and $22.5 million per year each to operate -- totaling near term costs of approximately $2.2 billion dollars. See Alan B. Fischler, The Incarceration of America, N.Y. Law Journal, November 6, 1992 at 2; Marc Mauer and Tracy Huling, Young Black Americans and the Criminal Justice System: Five Years Later, The Sentencing Project (1995); M. Mauer, Americans Behind Bars: One Year Later, The Sentencing Project (1992); State of New York, Division of Criminal Justice Services Statistics, 1980-1990; Correctional Association of New York and the New York Coalition for Criminal Justice, Imprisones Generation, (September, 1990); Charles B DeWitt, Information Sharing: A Plus for Corrections Construction, National Institute of Justice Reports, (Jan/Feb., 1991).
8. In 1991, the U.S. became the leading nation in the rate at which it incarcerates its people. For instance, by 1991, 445 of every 100,000 persons in the U.S. were imprisoned, a rate of incarceration more than 2 to 3 times that of its closest "competitors", e.g. Canada and China each at 111 per 100,000, and Japan at 42 per 100,000. See M. Mauer, Americans Behind Bars: One Year Later, The Sentencing Project (1992).
9. While some economic benefit is admittedly derived in those communities where new prisons are built and to the corrections personnel hired to staff these additional facilities, such "benefits," nevertheless, represent redirection of increasingly limited public resources, and involve the much greater costs associated with warehousing drug offenders.
10. One study noted that 62% of the children of incarcerated women live more than 100 miles from the correctional facility, and 47% lived 21-100 miles from the facility; Barbara Bloom, Incarcerated Mothers and Their Children: Maintaining Family Ties, at 60-64. Overall, 54% of children whose mothers were incarcerated never visited the prison facility; Barbara Bloom and David Steinhart, Why Punish Children? A Reappraisal of the Children of Incarcerated Mothers of American, (1993) at 20.
11. L.F. Lowenstein, Recent Investigations into Criminality, The Criminologist, (1992) at 105.
12. Jill Leslie Rosenbaum, Family Dysfunction and Female Delinquency, 35 Crime and Delinquency, (1989) at 31, 39. Rosenbaum found that 96% of women who had been committed to the youth authority as children, were later arrested as adults. 76% of those women had at least one other family member with a criminal record. 51% of the mothers of those women had felony arrest records, most of which were drug related.
13. See "Effects of Contemporary Drug Policy on the Integrity of Government," Section VII, infra.
14. See Clarence Lusane, Pipe Dream Blues: Racism & The War on Drugs, (1991); J. Schuler & A. McBride, Notes From the Front: A Dissident Law-Enforcement Perspective on Drug Prohibition, 18 HOFSTRA L. REV. 893 (1990); M. Sviridoff, et al., The Neighborhood Effects of Street-Level Drug Enforcement: An Evaluation of TNT by the Vera Institute of Justice, (August 1992); and Michael Z. Letwin, Report from the Front Line: The Bennett Plan, Street-Level Drug Enforcement in New York City and the Legalization Debate, 18 Hofstra L. Rev. 795 (1990).
15. On the phenomenon of "drug mules" generally, see Correctional Association of New York, Injustice Will Be Done: Women Drug Couriers and the Rockefeller Drug Laws, (1992).
16. See J. Schuler & A. McBride, Notes From the Front: A Dissident Law-Enforcement Perspective on Drug Prohibition, 18 Hofstra L. Rev. 893 (1990).
17. See Michael Z. Letwin, Wrong Way to Fight Crime, New York Times, October 6, 1990, at 23 (Op-Ed article); and Letwin, Report from the Front Line: The Bennett Plan, Street-Level Drug Enforcement in New York City and the Legalization Debate, 18 Hofstra L. Rev. 795, at notes 68 and 127.
18. See also, "Effects of Contemporary Drug Policy on the Integrity of Government," Section VII, infra.
19. Treatment: Effective (But Unpopular) Weapon Against Drugs, RAND Research Review, (Spring, 1995); see also Joseph Treaster, Study Says Anti-Drug Dollars Are Best Spent on Treatment, New York Times, June 19, 1994; Marc Mauer and Tracy Huling, Young Black Americans and the Criminal Justice System: Five Years Later, The Sentencing Project (1995).
20. In New York, for example, a parent's substance abuse and failure to cooperate with treatment is prima facie evidence of "neglect" for the purposes of Family Court abuse and neglect proceedings; Family Court Act §1046(a)(iii).
21. For example, New York State law imposes mandatory reporting requirements on health care professionals, including medical practitioners, social workers and counselors, requiring them to report suspected child abuse and neglect to the Child Welfare Administration. Since substance abuse is deemed a type of "child neglect" (see note 20, above), this has a widespread deterrent effect on access to health care by drug users. With respect to fear of arrest and prosecution of women, see "The Impact of Current Drug Policy on Women," Section VI, infra.
22. See J. Ostrowski, Thinking About Drug Legalization,Cato Institute Policy Analysis, No. 121, May 25, 1989; Association of the Bar of the City of New York, A Wiser Course: Ending Drug Prohibition, 49 The Record, No. 5, at 523 (1994); E. Nadelmann, The Case for Legalization, The Public Interest, No. 92 (1988).
23. A 1993 Center for Disease Control and Prevention (CDC) study found that needle exchange programs are likely to reduce HIV transmission and do not increase drug use. However, its recommendations have not been followed because of, what we believe to be, an irrational adherence to a "zero tolerance" drug policy. See U.C.S.F. Institute for Health Policy Studies, The Public Health Impact of Needle Exchange Programs in the U.S. Abroad, (September, 1993).
24. L. Zimmer & J.P. Morgan, Exposing Marijuana Myths: A Review of the Scientific Evidence, The Lindesmith Center, (October 1995). Although between 60 to 70 million Americans have used marijuana, not one has died from an overdose, a contrast not just with alcohol but with aspirin; E. Nadelmann, A Rational Approach to Drug Legalization, American Journal of Ethics and Medicine, (Spring, 1991). Nadelmann also cites Drug Enforcement Administration's Administrative Law Judge, Francis Young, concluding, after extensive hearings on the medicinal value of marijuana, that "it is one of the safest therapeutically active substances known to man"); id. at 6. Nadelmann further reports that, in the 11 states that decriminalized marijuana during the 1970's, rates of consumption were indistinguishable from rates in those states that had not; and that, in the Netherlands, where cannabis was decriminalized in 1976, consumption among young people had actually decreased substantially. See also Robert W. Sweet, The Abolition of Prohibition -- on Drugs, that is, Mouthpiece, Journal of the New York State Association of Criminal Defense Lawyers, Vol. 5, No. 5, (Nov/Dec, 1992), reporting on recommendations by President Nixon's commission on the drug laws and the those of the National Academy of Sciences in 1982, both of which called for an end to the criminalization of marijuana. Sweet further notes that decriminalization of marijuana would take 850,000 arrests out of the system.
It is also noteworthy, as reported in J. Ostrowski, Thinking About Drug Legalization, Cato Institute Policy Analysis, No. 121, (1989) at 5, that when marijuana was banned in 1937, no medical evidence was presented to Congress in support of such legislation.
25. Speech by Kildare Clarke, M.D., Kings Co. Medical Center, NYCLA Evening Forum, "Bursting at the Seams: Toward a Rational Allocation of Resources in the Criminal Justice System," (November 1992).
26. J. Ostrowski, The Moral and Practical Case for Drug Legalization, 18 Hofstra L. Rev. 607 (1990).
27. L. Zimmer & J.P. Morgan, supra at Note 24. Also see Note 28, infra.
28. It is well established that alcohol causes liver disease and tobacco is a carcinogen. Additionally, alcohol use and abuse, when combined with other activities, i.e., operation of a motor vehicle, has more dangerous effects than most presently illegal substances. Furthermore, alcohol abuse has been implicated in increased incidence of violent behavior, including domestic violence. While not advocating a return to "alcohol prohibition," we note that in the case of alcohol, appropriate sanctions are imposed upon harmful activities conducted while under the influence of this intoxicant, rather than punishment for its consumption per se. The comparative statistics are also quite poignant. Alcohol and tobacco have been directly implicated in approximately 100,000 and 300,000 deaths per year, respectively. See R. Sweet, The Abolition of Prohibition -- on Drugs, that is, supra, at 7, and E. Nadelmann, U.S. Drug Policy: A Bad Export, Foreign Policy, No. 70, at 92 (Spring, 1988). Meanwhile, according to the National Council on Alcoholism, only 3,562 people were known to have died in 1985 from use of all illegal drugs combined, notwithstanding 1985 having been was one of the highest for per capita drug consumption. Id.
29. Extensive research in to the potential therapeutic effects of psychedelics has been conducted by the Multidisciplinary Association for Psychedelic Studies (MAPS).
30. See L. Grinspoon and J. Bakalar, Marihuana -- The Forbidden Medicine, (1993).
31. In studying the causes of crime, use of the term "drug related" is often unhelpful and even misleading, as it fails to distinguish between those crimes actually caused by drug use or substance abuse (i.e. "drug induced," meaning caused by the actual psychotropic experience, or mind and/or physical alterations brought on by use of illicit drugs), and those resulting from participation in the violent but lucrative drug trade under circumstances of drug prohibition, (i.e., "drug trade" or "drug prohibition" related crime).
32. A comparable distinction might be made between "alcohol-induced" crime (e.g., public disorder and accentuated violent behavior, domestic or otherwise), and "alcohol trade" or "alcohol prohibition" related crime brought on by the era of prohibition (1920 to 1933), which included assaults and homicides -- resulting from turf wars between rival bootleggers, shoot outs with law enforcement officials, transactions gone bad, etc., extortion, bribery, and sale of adulterated and poisonous liquor. This is not to state, however, that all occasions of casual drug use causes behavior which is harmful or sufficiently serious as to justify intervention by the state, either by penal or rehabilitative measures. See Robert W. Sweet and Edward A. Harris, Just and Unjust Wars: The War on the War on Drugs -- Some Moral and Constitutional Dimensions of the War on Drugs, (Book Review), Northwestern University L. Rev., Vol 87, No. 4, (Summer, 1993).
33. See Testimony of John P. Morgan, Professor of Pharmacology, City University of New York Medical School, June 1994, at jointly sponsored public hearings of the New York County Lawyers' Association and the Association of the Bar of the City of New York. We note, parenthetically, that of the substances which have been most directly related to violent and other forms of anti-social behavior, alcohol rates most highly. This is not, however, a "controlled substance," as that term is defined by criminal statutes, nor would the Task Force recommend a return to "prohibition" of alcohol, based on the lessons learned from that failed experiment.
34. Certain nations have succeeded in decreasing such "drug prohibition-related" violence by easing restrictions on use and, to some extent, on sale of certain substances which are designated as "controlled" in the United States. This has decreased, to a degree, the black market activity and thereby, the cost and violence associated with illegal drug trade. Examples include: the Netherlands, Australia and the United Kingdom.
35. We cannot fail to note here that many involved in the drug trade, particularly in our nation's cities, are not "hardened criminals," but rather, minority youth who are understandably attracted to the possibilities of immediate economic advancement through participation in the drug trade. For despite its risks, engagement in the sale of drugs represents one of the few avenues available to such individuals in a world which appears to present limited economic opportunity.
36. Marc Mauer and Tracy Huling, Young Black Americans and the Criminal Justice System: Five Years Later, The Sentencing Project (1995).
37. See Marc Mauer, Young Black Men and the Criminal Justice System: A Growing National Problem, The Sentencing Project (1990).
38. Testimony of Jonathan Soroko, former Special Narcotics Assistant District Attorney, at jointly sponsored public hearings of the New York County Lawyers' Association and the Association of the Bar of the City of New York (June, 1994).
39. As reported in the U.S. Dept. Bureau of Justice, Bureau of Justice Statistics, Bulletin, Prisoners in 1993:
"In 1992 . . . the number of new court commitments for drug offenses totaled an estimated 102,000 [up from 8,900 in 1980, ed.]. The number of persons admitted for drug offenses was nearly as large as the number admitted for property offenses (104,300) and larger than the number for violent offenses (95,300 and public-disorder offenses (29,400). An estimated 30.5% of all new court commitments in 1992 were drug offenders, up from 6.8% in 1980. . . .The increase in drug offenders admitted to prison accounted for nearly 46% of the total growth in new court commitments since 1980. . . . The growth in the number of persons arrested for drug law violations and the increase in the rate of incarceration for drug offenses account for the change in the prison offense distribution. Between 1980 and 1992, the estimated number of adult arrests for drug law violations increased by 108% from 471,200 to 980,700."
The resulting shift in the percentage of drug offenders held in U.S. prisons and jail, as compared to inmates incarcerated for other criminal offenses, is as follows: In 1983, the total drug offenders held in federal prisons represented 27.6% of the total inmate population. By 1993, this figure rose to 60.8%. During that same period, the percentage of drug offenders rose in state prisons from 7.0% to 22.5%, and in local jails from 9.3% to 23.0%. Together with the shift in the makeup of jail and prison populations, increased drug arrests and commitment of drug offenders during this period has resulted in a doubling of the total number of individuals incarcerated in the U.S., from 660,800 in 1983 to 1,408,685 in 1993. This figure quadruples the number of those incarcerated in the U.S. in 1973, just 20 years ago; M. Mauer and Tracy Huling, Young Black Americans and the Criminal Justice System: Five Years Later, The Sentencing Project (1995).
40. M. Mauer, Americans Behind Bars: One Year Later, The Sentencing Project (Feb, 1992). Also see Keri A. Gould, Turning Rat and Doing Time for Uncharged, Dismissed, Or Acquitted Crimes: Do the Federal Sentencing Guidelines Promote Respect for the Law?, 10 N.Y.L.S. Journal of Human Rights at 1 (1993).
41. See, e.g., experiences of Colombia, Panama and Peru; see also E. Nadelmann, Cops Across Borders, (1993).
42. The 18th Amendment, instituting alcohol prohibition, was enacted in 1920 and repealed in 1933.
43. E. Nadelmann, Drug Prohibition in the United States: Costs, Consequences, and Alternatives, 245 Science 939 (September, 1989); J. Ostrowski, Thinking About Drug Legalization, Cato Institute Policy Analysis, No. 121, (1989).
44. Testimony of Loren Siegel, New York Civil Liberties Union, at jointly sponsored public hearings of the New York County Lawyers' Association and the Association of the Bar of the City of New York (June, 1994).
45. Actually, discussions of "decriminalization" or "legalization" have always found wide currency, particularly in present times, due to the overwhelming failure, at huge cost, of a harsh law enforcement based strategy of drug control. See Anthony Lewis, End the War, New York Times, November 3, 1995, at A29; Jefferson Morely, Crack in Black and White, The Washington Post, November 19, 1995, at C1. Further, we must be mindful that drug prohibition, in its inception, began just 6 years prior to alcohol prohibition, by passage of the Harrison Narcotics Act of 1914, a bill with little popular support but urged by then Secretary of State William Jennings Bryan, a man of "deep prohibitionist and missionary convictions...'" J. Ostrowski, "Thinking About Drug Legalization," Cato Institute Policy Analysis, No. 121, at 3 (1989). While drug control has taken on its present character as a serious law enforcement priority during the past three decades, ironically, this same period has been one of unprecedented growth for the underworld, illegal drug industry, in drug usage, and in the expenditure of economic resources fighting a futile "war on drugs."
46. M. Mauer and Tracy Huling, Young Black Americans and the Criminal Justice System: Five Years Later, The Sentencing Project (October, 1995). This recent report found that although African Americans represent about 13% of the total population and 13% of those who are monthly drug users, they are 35% of those arrested for drug possession, 55% of those convicted for drug possession, and 74% of the total serving sentences of incarceration for drug possession. See also, 1 in 3 Young Black Men in Justice System, Washington Post, October 5, 1995, at 1.
47. Such operations are rarely conducted in predominantly white, middle and upper-class neighborhoods.
48. According to the U.S. Sentencing Commission, 90% of those convicted in 1994 for federal crack offenses were black and 3.5% were white. For powder cocaine, 29.7% were black and 25.9% were white (the rest were Hispanic). Under current federal law, there is a mandatory minimum sentence of 5 years imprisonment for possession of 5 grams of crack or 500 grams of powder cocaine. The Sentencing Commission's recent proposal to remove the 100-to-1 sentencing disparity was rejected by Congress, the Justice Department and the Clinton Administration. See L. Greenhouse article, New York Times, 10/31/95, at A18.
49. See "Effects of Contemporary Drug Policy on the Integrity of Government," Section VII, infra.
50. In the five years from 1989 to 1994, black, non-hispanic women from the ages of 20 to 29, faced the highest growth in criminal justice "control rates," (i.e., incarcerated, on parole or on probation) which increased 78% during this period. In the five year period from 1986 to 1991, black, non-hispanic women overall faced the highest growth in numbers of those incarcerated in state prisons for drug offenses, with an increase of 828% during this period. See also note 56, infra.
51. Correctional Association of New York, Injustice Will Be Done: Women Drug Couriers and the Rockefeller Drug Laws, (February 1992).
52. For federal arrestees, the potential sentence after conviction for similar crimes, under the Federal Sentencing Guidelines, is 50 years-to-life.
53. 80% of women prisoners are the sole caretakers of children under age 18. L. A. Greenfield and S. M. Harper, Women in Prison, U.S. Bureau of Justice Statistics, Special Report (1991).
54. See, for example, M. Letwin, Sentencing Angela Thompson, NYLJ 4/18/94, p.2, col.3.
55. See Barbara Bloom and David Steinhart, Why Punish Children?, supra, at 3; also see M. Mauer and Tracy Huling, Young Black Americans and the Criminal Justice System: Five Years Later, The Sentencing Project (1995). Regarding the general increase in the conviction and incarceration of women for drug offenses, in 1991, 1 in 3 woman in state prisons was incarcerated for a drug offense, up from 1 in 8 in 1986. From 1986 to 1991, the number of female state prisoners incarcerated for drug offenses grew from 2,370 to 12,633, for an increase of 433%. Id.
56. See "Public Health Consequences of Current Drug Policy," Section III, supra.
57. As regularly reported in Reproductive Freedom News, the newsletter published by The Center for Reproductive Law and Policy, New York City.
In criminal statutes, "delivery" of narcotics, with or without pecuniary compensation, is generally treated under the more serious category of sale or distribution of such narcotics, (see, for example, New York State Penal Law §220.00(1), which defines sale of narcotics as: to "sell, exchange, give or dispose of to another or offer or agree to do the same." (Emphasis added.) Although such criminal prosecutions against women are not presently known to have been brought in New York State, they have been, and continue to be brought in various states throughout the nation, (see Reproductive Freedom News, supra).
58. As regularly reported in Reproductive Freedom News, supra.
59. See New York State Penal Law (P.L.) §220.39 (Criminal Sale of a Controlled Substance in the Third Degree), as compared with P.L. §160.15 (Robbery in the First Degree), P.L. §130.35 (Rape in the First Degree), and P.L. §120.10 (Assault in the First Degree).
60. See "Drug Policy, Drug Law Enforcement and People of Color," Section V, supra.
61. See "The Impact of Current Drug Policy on Women," Section VI, supra.
62. L. Grinspoon & J. Bakalar, The War on Drugs -- A Peace Proposal, 330 New England Journal of Medicine 357, at 357.
63. L. Grinspoon & J. Bakalar, ibid., at 357. See also Florida v. Bostick, 111 S. Ct. 2382 (1991); U.S. v. Sokolow, 490 U.S. 1, at pp.13-14 (1989) (in his dissent, Justice Brennan enumerates cases in which the court failed to question the "chameleon-like way [in which the drug courier profile] adapt[s] to any particular set of observations."
64. See S. Wisotsky, A Society of Suspects: The War on Drugs and Civil Liberties, at 180 (1992).
65. The difficulty of establishing this negative proposition is borne out by the government's own statistics, which reveal that the Drug Enforcement Agency (DEA) made 14,430 domestic seizures of nondrug property in 1993, resulting in a fiscal windfall of approximately $670 million; see Drugs & Crime Data Center & Clearinghouse, Fact Sheet: Drug Data Summary 2, (April, 1994).
66. For example, in New York, pursuant to Real Property Actions and Proceedings Law §715, the District Attorney can seek fines and other sanctions against owners of such properties who fail to commence eviction proceedings against tenants suspected of illegal conduct, irrespective of the ability of the District Attorney to bring or sustain criminal charges with respect to such tenants.
67. We also note, with great concern, the conduct of various governments outside our borders, both with and without direction and encouragement provided by the United States, whose own policies clearly take on world-wide significance. See, e.g., E. Nadelmann, Cops Across Borders, (1993).
68. As to the effect of federal drug sentencing laws in compromising the threshold requirement that mens rea be evident in the conduct of an individual defendant as an essential element in imposing criminal responsibility, see Jack B. Weinstein & Fred A. Bernstein, The Unwarranted Denigration of Mens Rea on Drug Sentencing, Federal Sentencing Reporter, Vol. 7, No.3, (Nov/Dec 1994).
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