Drug Prohibition Is the Problem: Reflections from a Former Judge

The U.S. policy of Drug Prohibition is fueling mass incarceration and street violence without making drugs any harder to come by. Might it be time to follow Portugal’s lead in decriminalizing not just marijuana, but harder drugs too? Credit: Paul Lachine.

Drug prohibition is the biggest failed policy in the history of our country. I know that is a strong statement, but once more people realize the unnecessary harms and disasters this policy has inflicted, they will surely start to agree.

None of this should be surprising. Abraham Lincoln explained the situation succinctly when he said: “Prohibition goes beyond the bounds of reason in that it attempts to control a man’s appetite by legislation and makes crimes out of things that are not crimes. A prohibition law strikes a blow at the very principles upon which our government was founded.” Let us also not forget that, in the Book of Genesis, even God couldn’t enforce a law of prohibition, and God was only dealing with two people!

I am a former “drug warrior,” although, like most other people, I never really gave it much thought. When I was a staff judge advocate at the U.S. Naval Air Station in Guam, I prepared the charge sheets for the courts-martial of station personnel, and many of them were for drug violations. Furthermore, for a short time I held the record as a federal prosecutor in Los Angeles for the largest drug prosecution in the Central District of California, which was 75 kilograms of heroin, or about 165 pounds. (That was and is a lot of heroin, but today the record prosecution in that district is 18 tons of cocaine!)

But after I became a trial court judge in late 1983, I could not fail to notice how we were churning low-level drug offenders through our criminal justice system for no good purpose and often ruining their lives along the way. In addition, even when we arrested, convicted, and incarcerated high-level drug dealers, that did not at all mean that the drugs were no longer available in the areas they served. Quickly—within a few hours sometimes—other dealers would take their place.

After seeing firsthand what was happening in my own courtroom, I realized that we are facing two substantial harms in our country. The first is drug harm. Illicit drugs certainly can be harmful, and nothing I say in these pages is intended in any way to minimize those harms. But the second harm is caused by drug money. Drug money inflicts much more harm to people in our cities, states, country, and the world than the drugs themselves will ever cause. With all attention fixed on the drugs themselves, too few people are talking about the drug economy and the mass incarceration currently associated with it.

As a conservative judge in a conservative county—and as a fairly clean-cut person who had never used illicit drugs—I decided that I was probably in a better position to engage resistant skeptics in an open discussion on this issue than most people. Thus, on April 8, 1992, I did something quite unusual for a sitting trial court judge: I held a press conference and announced my conclusions as publicly as I could that our nation’s policy of Drug Prohibition was not working—and would never work.

Unfortunately, since that time the situation has deteriorated much further. Our country continues to lead the world in the incarceration of its people. Tens of thousands of individuals, including children and other innocent bystanders, have been violently killed in Mexico and elsewhere not because of drugs, but because of drug money. The enormous profits made by the higher-ups in gangs and drug cartels continue to be facilitated by Drug Prohibition. And all of these illicit drugs are easily available to children.

Defining Goals

With the understanding that we are all on the same side of this issue—namely, that we all want to reduce drug abuse and the harm and misery that accompany it—we should design a new drug policy. As we begin this task, we should focus upon what our goals actually are in this area, because, for all of the time, efforts, and treasure our nation is spending on our policy of drug prohibition, we have never really done this.

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