No more bullshit: In the federal courts, there is no such thing as a “non-violent drug crime.”

Judge Mark Bennett, a terrific federal district judge and dear friend, poked good-natured fun at me for ending my post on Ben Dubas by suggesting that it is foolish to call federal drug crimes “non-violent.”  Well, it is foolish, and, moreover, it is terribly misleading.

The drug crimes prosecuted in the federal courts are always violent, and I mean that literally. When you distribute a substance that you know is poison to another person that is a violent act. Period. End of story. Moreover, the connection between guns and drugs is beyond dispute. Not every purveyor of drugs uses or carries a gun, but the world where they operate organizes around one thing and one thing only, guns.  Still further, whole neighborhoods that were once rich, vibrant and nurturing are now literal war zones because of drugs. In large swaths of America, functional families are no more because of drugs. Like global warming, these are inconvenient truths.

To be sure, addiction and poverty drive many offenders and those factors often substantially lessen (or should substantially lessen) a federal offender’s culpability. And, I certainly agree that statutory mandatory minimum sentences make little sense and have resulted in federal prison sentences that are far, far longer than are wise or just. In that same vein, I strongly support those who want to lessen the number of people we put in federal prisons.

But, I am also a legal realist. To say that federal drug crimes are “non-violent” is bull shit–plain and simple.

RGK

48 responses

  1. Judge,
    I sincerely thank you for the kind words on your last post, it truly made mine & my families day to be spoken of so kindly by you. Now on to today’s post.. I actually couldn’t agree with you more. Anybody who has been involved with the distribution or in the using of drugs can’t tell me there isn’t some form of violence that hangs around like a dark cloud. For those that would disagree, I would ask them; ” have you ever been around a junkie that was coming down and looking for his next fix?” Or maybe “have you ever been around a dealer that was just ripped off for either cash or drugs?” Lastly “have you ever bought for the first time from a dealer that you just were introduced to?” I guarantee he doesn’t hand you lolly pop on your way out, instead he offers you a warning with a threat of violence. I am for prisoner rights & think that the manditory sentences need to be revamped, but I digress.. That’s for another days topic… The truth of the matter is, most people who have actually been there & are honest with themselves would tell you, when you are involved in such things, violence is natural part of everyday life.

  2. Enthusiastically enforcing draconian drug laws, and in the process destroying the lives and families of those who turn to drugs–without themselves being violent–is state-sponsored violence of the worst kind. If there are guns around, then of course it’s violent. But you don’t draw any distinctions between sellers with guns and users without them.

    Unless and until we realize that the illegality of drugs is a far larger problem than the drugs themselves, and cure the vicious racism of the present regime of law enforcement, the lives of such people will continue to provide fodder for the prison-industrial complex. Drugs are a public health problem, just like alcohol and tobacco. It will never be solved, but can only be controlled and regulated.

    It is well past time to face the fact that the decades-long war on drugs has been a colossal failure–except of course for those who continue to profit from it. And that is why it will never end.

    • Richard,

      With respect, I am proposing only that we speak the truth. We will never ever be able to change for the better if we aren’t brutally honest. Read Ben’s comment, for example.

      All the best.

      RGK

  3. RGK, I am glad to see you are drifting from your conservative Justice Scalia “textual” roots. Defining a crime of violence as broadly as you do opens the door for this observation. The way the DOJ has meted out charging decisions and applied 851 enhancements and routinely engaged in sentencing entrapment to get a defendant, especially African- American ones in crack cases, above the low threshold for MM’s is also a crime of violence. Do you agree?

    Mark W. Bennett
    U.S. District Court Judge
    Northern District of Iowa
    Sioux City, Iowa
    Sent from my iPad

    • Mark, I don’t understand your question. So, I can’t answer it.

      Incidentally, you know as well as I do that I was not defining a “crime of violence.” I was pointing out that reformist rhetoric minimized the connection between violence and drugs.

      All the best.

      RGK

  4. Judge Kopf, I am a third year law student and have been greatly enjoying reading your blog. On this point, I find I am in agreement with Richard, and wonder how you reconcile your thoughts on this issue with alcohol, which is certainly “poison,” and during Prohibition anyway certainly created a strong and direct connection between the substance and guns (see, Boardwalk Empire :)), and today, although legalized, certainly is the cause of much violence and destruction.

    I understand that you are simply pointing out that drug crimes can never be truly non-violent. Would you say the same is true for alcohol – sale and consumption – with the difference being simply that we have decided not to criminalize those actions?

    • Katie,

      I don’t try to reconcile the two things. I am a realist who cares very little for intellectual purity.

      If I did try to reconcile the two, I would say that criminalizing booze ran against a long history of consumption throughout the world and thus the ban was not likely to work even if it was the proper thing to do, that booze can be horribly destructive and in a better world it would be banned*, and that the addictive qualities of booze are far less than meth and crack as evidenced by the fact that booze never destroyed whole neighborhoods the way crack has. I would add other stuff too, but you get the picture.

      All the best.

      RGK

      *Katie, my mother was a drunk who drank herself to death at age 50. The last time I talked to her in person, she did not know who I was.

  5. Wow. I don’t even know where to start. Anybody got a blue book?

    1. It’s not enforcement of the laws that destroys lives and families. It’s the drugs. The results of law enforcement are completely foreseeable consequences. You need to go a step further — the family structure, combined with resulting poverty and lack of education, leading to the belief that selling drugs is the only available employment option. Nine out of ten of my drug clients come from the same background, whether they are black or white: absent father, struggling single mom who may have her own drug problems, not enough money, lack of traditional structure and training.

    2. Guns. All of my clients have guns. Hell, I have a gun. EVERYBODY has a gun. And even if you’re “just” a user, it’s totally foreseeable that your dealer will have a gun. By being a part of the stream of commerce that includes guns, you are part of the conduct that includes violence. Two words: Pinkerton liability.

    3. Regulation. Are you NUTS? You’re going to legalize and regulate the use of poison? There is NO legitimate need for methamphetamine, crack or powder cocaine, ecstacy, PCP, heroin, or LSD. Your argument that they are comparable to alcohol or tobacco is absurd. No one ever smoked a pack of Camels and robbed a liquor store to buy more.

    4. Race. We will never agree on this. I have been a CJA panel attorney for 20 years and can safely say that the reason there are more people of color in prison than whites is because more people of color are committing crimes. The social structure of the black community has collapsed. In every one of my cases I see an absent father and a mother who is either working multiple jobs to keep her family together or is addicted to drugs herself. In either case, no one is around to supervise and raise those children. In my city, many young black men expect to die young or go to prison. There are no social activities, no jobs, no supervision. So many of these kids don’t have a chance.

    Until society addresses this problem, I will continue to have clients like Javon. Dad an alcoholic and crackhead. Mom working three jobs. He starts out smoking weed to deal with the grimness of his reality. Then he starts selling it to support his habit and so he can give money to his Moms. Then he moves up to using some crack and selling more weed to pay for it. He gets a gun. He needs weed to sell to buy his crack, so he goes to the Weed Man’s house. Weed Man ain’t there, but his wife and three year old child are. Wife is weighing out the weed. Javon knows Weed Man ain’t there and sees an opportunity. (His words.) He shoots her. She gets up to run away. He shoots her a second time in the back. In front of her three year old son.

    At sentencing I describe the futility of Javon’s life and the others like him. Society has failed him. WE have failed him. Please, please give him a chance. The judge is sympathetic. She gives him life, no parole. We both cry.

  6. Fortunately, my practice is limited to intellectual property. But I live in New York City, and have seen more than enough drug-related violence, both state-sponsored and privatized, to convince me that the war on drugs is a colossal failure. I thank Katie for her thoughts, and would say to Susan that her attitude is one explanation for the fact that the US has the largest number of people in prison in the world. If young people have no hope in their lives, then let’s just toss them aside. I suppose creating the social climate for giving them an opportunity for hope is not within the means of the richest country in the world. No, let’s just all have guns (I don’t) and go around the world blowing things up, while at home giving prosecutors unbridled discretion for 851 enhancements. There’s always money for that.
    I suppose also that we should distinguish between drug prosecution in federal and state courts. At least there is some semblance of due process in the former…but the numbers are far smaller.

  7. Where on earth did you get the impression that I SUPPORT the status quo? I’m pointing out that it’s a problem – and a tragic one – that needs to be addressed.

    • Susan,

      Your point is very important.

      One can speak realistically and honestly about drug crimes being connected with violence in virtually all of the cases prosecuted in federal court while disagreeing, and strongly so, with many of the crazy elements of the present system and the failure of our country to deal with the root causes. I appreciate your realistic and honest perspective, and I hope others do as well.

      All the best.

      RGK

  8. And you can’t compare state and federal cases. Federal cases typically involve big, multi-defendant drug conspiracy indictments that involve much greater drug weight and guns, whereas state cases usually are directed against a single defendant. At least in my jurisdiction.

  9. Susan, I am glad to know that we agree. And I should say that I couldn’t deal with the human tragedies which you must confront in your practice all the time. But I don’t see anyone in a position of power who really wants to address the problem.

    I once told Judge Kopf that I admired Judge Jack Weinsten here in the Eastern District of NY, who, once he took senior status, refused to take drug cases, because he could no longer preside over the destruction of lives. Judge Kopf said he also admired Judge Weinstein, but didn’t agree with me. But I think the people who are in the system are the ones in the best position to put spokes in the wheels.

  10. Shame on Judge Weinstein. Judges are the last and biggest spokes in the wheel. Who was the guy that said (paraphrased) “Evil happens when good men stand by and do nothing?”

    • When a district judge is faced with sentencing guidelines that require a draconian sentence, and believes it is evil to impose it, then her choice is either to violate the law, her oath of office, and her conscience all at the same time (and await reversal by the Circuit Court), or just refuse to participate. That is the virtue of senior status. And there are occasions in life when circumstances are such that the strongest thing to do is remove oneself altogether and refuse to participate in evil.

  11. I can definitely say that I have represented many many defendants in federal drug cases over 24 years of practicing law. My experience is just a snippet of that of the Judge who hosts this amusing and interesting blog. However, I think it is more than a little distorted to say that federal drug defendants are engaging in violent crimes. The people we typically see here in the midwest are not typically much more than mules, addicts, runners, and sometimes larger scale dealers. A minority percentage of the cases actually involve possession of firearms in any true connection to drug trafficking. Even fewer involve any violence. And, I hate to bring up marijuana, but my experience with the marijuana traffickers is that the culture of those people is more that of a political movement than any kind of dangerous enterprise, such as a gang of repeat bank robbers.

    Trying to analogize drug trafficking to violence, or for that matter, terrorism, is really quite astray of reality and misses the distinction between those deliberately inflicting harm on innocent persons uninvolved in the crime being perpetrated–robbery or terrorism victims, and those who choose to be involved by purchasing, making, distributing, or consuming drugs that the government has categorized as illicit based upon a government assessment of efficacy and safety. There is actually nothing inherently wrong with competent people chosing to alter their mental state through consumption of illegal or dangerous drugs. Some argue that is inherent in personal liberty.

    Judge, please see the definition of malum prohitum because that is what the US drug laws are for the most part. On the other hand, committing acts of terrorism or violence against innocent people who were either just doing their job or bystanders is we can all agree bad because it violates every societal norm we can think of that is relevant. Please see the definition of malum in se. This is the fundamental difference between drug laws generally that prohibit people from voluntarily doing things that might be harmful to themselves or other volunteers–consuming or distributing certain listed drugs–and other laws that we can readily agree prohibit people without punishment from harming innocent others. Arguing that crimes that are malum prohitum should be punished like crimes that are malum in se, just because there is some similar potential of harm in both such as death from overdose or death from an armed robbery, misses the mark in that we have to also consider the mental state and moral culpability of the actors, participants, and any innocents.

    • Anonymous,

      Two things:

      Read Ben’s comment, do you disagree with him?

      By the way, my last marijuana case involved a black guy and a native guy stiffing a white guy on a $500 marijuana deal. The white guy then went back and killed both of them with the help of two teens on bikes. Malum my ass.

      All the best.

      RGK

      • You used to see that type of violence with alcohol during prohibition – notice how that largely went away with repeal. Do you not think the same could happen with drugs were the legal, taxed, and regulated? If not, why not? I don’t necessarily advocate the legalization of all drugs, but it is, to borrow your words, bull shit to consider marijuana in the same class as crack and meth.

        • Sean,

          First, I agree that marijuana should not be treated the same as crack and meth. But, as I indicated earlier, the last weed case I had involved a $500 deal followed by a double murder when the sellers stiffed the buyer.

          Second, there are many reasons legalizing, taxing and regulating “hard” drugs will not make things better. Moreover, because that will never happen in the U.S., I don’t spend time worrying about whether that is a realistic alternative.

          All the best.

          RGK

          • Is it fair to say that a $500 transaction for marijuana resulting in a double murder is more likely a result of the prohibition than the inherently violent nature of the distribution of marijuana?

            If marijuana (specifically) were legal, as it is in two states, then a $500 transaction gone awry would be more likely to result in small claims court petition or better business bureau complaint than a double murder. As much as anything other than a psychological/emotional deficit can explain a double murder, it is the lack of legitimate business institutions and dispute resolution mechanisms that lead to violence in the marijuana market. People simply do not murder their Wal-Greens pharmacists or local Budweiser distributor over $500 business disputes. If marijuana were available as an over-the-counter pharmaceutical or distributed as a recreational intoxicant it would certainly be a “non-violent” business – especially considering your comments to Tobias.

            Regarding Ben’s comment about violence when dealing with drugs, I think it is vitally important to make a distinction between marijuana and other drugs. A junkie coming down from a marijuana high is not inherently violent. The dark cloud of violence present in marijuana distribution is a problem of our own making – and one that should be corrected.

            Am I drawing a distinction you are willing to grant with marijuana? If so, then what weight does your marijuana-murder example have?

            On a slightly different thought, you wrote:

            When you distribute a substance that you know is poison to another person that is a violent act. Period. End of story.

            This seems to lack nuance. What about the tobacco executives of yesteryear and even today? Today tobacco executives market to children in unregulated foreign markets. Is this a violent act? What about the link between soda, fast food, diabetes and obesity? Is selling seriously unhealthy food a violent act? Obviously, there is no limit to the list of transactions that are good for one party and bad for the other. Usually the person who gets the better end of the bargain knows they are offering something harmful to the other party and depends on the other party’s ignorance (drugs, unhealthy food, casinos, payday advance, rent to own…). These things are not an act of violence. Robberies, rapes, murders, beatings are acts of violence because they include actual physical violence. I think extending the definition by re-characterizing acts that are actually non-violent as violent through wordplay creates more problems than it solves. That’s not to say they are not serious crimes or unethical actions, but they are not “acts of violence.” At least in my view, unethical acts that are non-violent should not be punished the same as actually violent acts.

            • I think it would be interesting if those who comment on this issue would provide some context for their opinions and how they arrived at them, particularly whether they practice in the area of criminal defense and have experience with drug offenses.

            • Ross,

              Several things.

              You suggest that my writing about drugs lacks “nuance.” I plead guilty.

              I am convinced that the guy that got stiffed on the $500 deal, and reacted by killing two people, would have killed the two weed distributors even if the substance was tuna fish. Making the substance legal would not have lessened this fellow’s love of killing. Some people are simply evil, and a lot of them end up defendants in federal court charged with drug crimes.

              By the way, I don’t think marijuana ought to be punished as severely as other drugs and, generally, marijuana is not punished as severely as other drugs. But, I noticed you forgot to mention marijuana laced with coke or crack or heroin.

              As the marijuana double murder example illustrates, I object to the phrase “non-violent drug crimes” because violence is present one way or the other in the federal criminal cases I see. That benign sounding phrase is used to conjure up untrue images–like two college kids smoking a joint while listening to Bob Dylan–that do not exist in my world. So, with respect, I am not playing word games, you are.

              All the best.

              RGK

      • Sir,

        If the cannabis had been a legal product, they could simply reported the theft to the police. They would not have had to resort to violence.

        Also, it takes me aback when I see LSD and MDMA listed in the same sentence as crack and powder cocaine and heroin. It indicates to me that the prohibition establishment is seriously disconnected from reality that these substances are considered comparable.

        Thanks for your time posting and responding.

        BP

        • Ben,

          Grading the harmfulness of illicit drugs is, I agree, tricky business. On the other hand, I continue to think referring to drug cases as “victimless” or “non-violent” is grossly misleading. Drugs and violence, at least from a real world perspective, are inextricably linked.

          Assuming that you don’t find feeding the addictions of users to be immoral or nearly so, I also don’t believe that legalizing drugs that are presently illicit will do anything to eliminate criminality. That is because a black market would quickly arise unless we are prepared to completely deregulate drugs. Since no one is likely to allow unlimited doses of heroin to be sold legally on the streets of the inner city, guess who will step into supply the demand.

          All the best.

          RGK

  12. Now that Mexico has become the prime source of drugs – from marijuana to meth – you can’t make distinctions as far a violence is concerned. I had an 18 year old girl who worked as a mule, transporting loads of weed from marijuana to a Midwestern city. She was finally convinced to cooperate. She received death threats and her car was blown up. NONE of my Mexican clients will cooperate because they still have family in Mexico and fear for retribution from the cartels.

    If you don’t think there’s violence associated with the importation of marijuana as well as other “harder” drugs, you haven’t spent much time in federal court during the past five years.

  13. I don’t see the type of traffickers you get in federal court, so perhaps my experience in state court (and in life in general) gives me the wrong impression of drug dealers/traffickers/users. I don’t want to waste your time or mine so I’ll keep it simple: (1) my experience with drug dealers/traffickers is that violent persons are the minority (although I am sure there is violence somewhere in the supply chain); an (2) I would dispute your characterization of these substances as poison. There are lots of folks who use these substances and carry on just fine, just like there are lots of folks whose lives fall apart shortly after their first few experiences. I’m really looking forward to Obamacare/Medicaid expansions because insurance sold on the exchanges will be required to cover substance abuse and mental health treatment. Hopefully some of the folks who have issues with these drugs will have greater access to treatment, and we can start looking at saner policies with respect to controlled substances.

    • Matthew,

      Thanks for your insights. Here are a few responses:

      *I do think that there is a dramatic difference between the drug defendants that I see and the drug defendants down the street in the state court. Indeed, one of the law enforcement task forces around here uses state prosecutions in lieu of going federal as an effective tool to squeeze lower level folks to cooperate and testify in federal prosecutions.

      *It is true that many federal drug traffickers don’t themselve use overt violence of the kind you are referring to. But, even where the specific federal offender is not overtly violent, overt violence is an ever present organizing principle if you, even just barely, scratch the surface of the relevant conduct associated with the offense of conviction.

      *Finally, I don’t doubt that there are some recreational cocaine or grass users who can control their intakes. On the other hand, I doubt very seriously that is true for most crack or meth users.

      Again, thanks for your thoughtful comment. All the best.

      RGK

  14. I agree that an examination of our drug policy should consider the entire vertical supply chain, to an extent. However, I think there should be some care about singling out the low-echelon cogs who are not only more likely to face criminal penalties, but also more likely to be the victim of the violence that is an inevitable byproduct of the prohibition economy we have created through the “War on Drugs.”

    Here in New York City (and elsewhere around the country), the biggest “trend” in drug enforcement is the skyrocketing number of arrests for illegal use of prescription drugs. Xanax and Oxy account for a huge illegal market, particularly on Staten Island, and there is at least some level of the same violence that plagues the market for marijuana, cocaine, heroin, meth, etc. In fact, the same product is often distributed by the same parties, at least at the “retail” level, if not higher. However, the profits from the illegal Xanax business are not flowing to shadowy cartel bosses in Mexico, but to the “shareholders” of the “legitimate” pharma businesses that are churning out far more generic and brand-name pills each year than are legitimately prescribed by doctors. Xanax is one of the most addictive prescription drugs on the market, but effective lobbying has kept the DEA from classifying it as a schedule II drug, meaning there are practically no controls on how many are manufactured each year. (On the other hand, the artificial shortage of amphetamine salts created by the DEA’s regulation of that base ingredient has sharply increased health care costs for millions, particularly in light of the ever increasing number of AD(H)D prescriptions being written for those who can afford some type of health care.)

    I can’t help feeling that there are plenty of hedge-fund managers, traders, i-bankers, etc. who are openly enriched by the sales of prescription drugs into the grey- and black-markets. The fact that those people are able to go to a psychiatrist for $300+ an hour out-of-pocket and obtain a “legitimate” prescription for the same (or similar) drugs to treat essentially the same social ennui only compounds the absurdity of the entire exercise.

    If we are going to condemn, e.g., a low-level drug mule for being part of an industry that relies on, and breeds, violence, why shouldn’t we also condemn the equally non-violent, but perhaps far more culpable upper-echelon people who are making such a tremendous profit? Of course, if we go down that route, one might start asking whether or not the top executives of Exxon have any moral culpability for violence in the Middle East, since that company profits (greatly) from a global market that depends on political instability and despotism to control natural resources for the benefit of some and not others. Drugs and oil are only two of hundreds of examples: diamonds, rare earths, timber etc. etc. Not to mention the inherent violence in, e.g., an industry that can see 1000+ women crushed to death in a deathtrap building in order to bring us socks for $1/pair.

    With all due respect, to claim that there is “no such thing as a non-violent drug crime” because there is violence associated with part of the distribution chain is to indict a particular branch of the global economy simply because the participants or the product are seen as somehow less desirable in a system of global capitalism that is exploitative and coercive at its core.

    Of course, I will defend capitalism the same way Churchill defended democracy: it is the worst economic system except for everything else we have tried.

    • Tobias,

      You have articulated your views beautifully, but I think you are wrong regarding the question of “just punishment.”

      Here is my over-simplified and abbreviated response:

      Legitimate makers of prescription drugs have no economic incentive to promote abuse of their drugs because to do so threatens their very existence. If you think otherwise, you haven’t taken a look at their balance sheets for legal costs, compliance costs and insurance. Additionally, there is strong reason to believe that Asian cartels have entered the “knock off” prescription pill business big time. Plus, there is more than a little reason to fear that the Mexican cartels will not be far behind. As for doctors who “sell” scripts, they are being prosecuted even out here in the sticks. If you think otherwise, go talk to your family physician and ask what records he or she is required to keep for the DEA. Then, ask whether your doc is concerned about this issue. All of this is to say that I am not persuaded that there is any moral equivalency between legitimate manufacturers and distributors of prescription drugs and illicit makers or distributors of prescription drugs.

      Thanks for taking the time to comment. All the best.

      RGK

      • Thank you for taking the time to read and respond to my comment. I would be curious to see any sources of information you have regarding the origin of diverted pharmaceuticals. I have found that this information is very difficult to come by through public sources.

        Also, I have to quibble on one point: for doctors prescribing Schedule IV drugs — including Benzodiazepines — there is very little tracking or paperwork involved, at least at the federal level.

  15. I want to second Ross’s comments about the effect of legitimate dispute mechanisms in preventing violence. It is a sophisticated follow-up to my rant, and cuts right to the heart of the relationship between a judicial system that enforces laws that seek to regulate behavior. When the behavior can be reduced to the economic basics of a market (supply and demand), I would posit that there is a tipping point where the regulatory intent runs so contrary to the popular demand that the results must increasing include violence, both by the law breakers and by the state that seeks to conform the market to its regulatory aims.

    My brazen conflation of the market for prescription drugs with illegal drugs is not casual or without purpose. It very much appears to me that there is a certain need in human society for intoxicants and other mood and perception altering substances and activities. Certainly, humans have been using (and abusing) such things for as long as they have been living in complex societies. I doubt that there are too many addicts or dependent users who overwhelmingly prefer the specific substance over the effect. If a heroin addict can get the same results from a legal dose of methadone, they are likely to prefer that route over the illegal one. If we provide legitimate alternatives to the crude “pharmaceuticals” that so many people appear to crave for various reasons, we reduce the demand side of the market for illegal drugs.

    To answer Susan’s question: I represent the City of New York and its employees (mainly police officers) in Section 1983 actions brought in federal court. Thus, I see the effects of the “war on drugs” in a way that many involved directly in the criminal justice system do not: the costs to society when mistakes are made (or arguably made). A very large portion of our cases concern arrests for drug-related offenses. The perniciousness and ingenuity of a determined market will always exceed the legitimate tactics of enforcement in what we would like to consider a “just” society. The enforcement regime can fail in numerous ways: (1) under-enforcement due to superior tactics by the criminal market, meaning all of the vast majority of drug transactions that go uncaught and unpunished; (2) over-enforcement where non-proscribed conduct accidentally results in criminal charges (e.g., people arrested for carrying prescription drugs that they have a legitimate scrip for); or (3) enforcement obtained through improper tactics. In criminal law, the exclusionary rule is a remedy aimed directly at the third form of regulatory failure: yes we found the incriminating evidence, but we did so in a way that was unfair. In an effort to reduce the failures in the first category, there is increasing risk of failures of the other two types. In my job I fight to control the actual economic impact of such failures — i.e., how much should we have to pay someone who unjustly spends a night in jail? I tell plaintiffs that, if we had to pay $X (where X is a significantly higher number than usual settlements or verdicts), then the City would have no money left for parks or streets or anything else. Nevertheless, the money we pay in settlements and verdicts is a direct (but often hidden) cost of the war on drugs.

    Usual disclaimers apply: this reflects only my own opinions, not the opinions or positions of my employer. These comments are not meant to be a comprehensive statement of my views on the matter or the positions or arguments I might make in court. A significant portion of my cases do not concern any of the failures identified above, but rather a plaintiff who incorrectly things such a failure has occurred, in which case my job involves arguing that society owes the person nothing.

    • Tobias,

      I ask these two question because I truly want answers and I am interested in your thoughts.

      If you had control, what specifically would you do about the problem of illicit drugs?

      Why is your proposal preferable to the status quo?

      All the best.

      RGK

      • I wish I had a “magic bullet” solution but, of course, I don’t — if such an answer existed, then people far smarter than me would have already proposed it.

        However, I would first challenge the premise of the question. (Since we are veering beyond the judicial and into the legislative/policy area, I hope you will forgive me for violating that first rule of oral argument). I do not see “the problem” as one of “illicit drugs.” I see the use of illicit drugs as a symptom of a far greater problem in our society. Rather than go into a long discourse on that point, I would recommend the 2012 documentary “The House I Live In” which comes closer to articulating the “problem” better than I can, at least in this format.

        The first step I would take would be a massive redirection of federal monies from law enforcement and incarceration to social programs, infrastructure, urban renewal, job creation, etc. etc. Whether or not we formally repeal the laws on the books, I would stop wasting money on the Sisyphean exercise of trying to utterly embargo and prohibit a product that can be concealed in a body cavity or grown on a fire escape. Otherwise, we are simply inviting the government to start poking into our body cavities and hanging around on our fire escapes.

        I would spend a great deal of the redirected money on providing mental health care and counseling for free to anyone who needs it, and I would provide the courts more options for encouraging or requiring people to obtain treatment for mental and emotional disturbances — treatment that is legitimately seen as help rather than simply punishment. Of course, at first a lot would need to be invested in training more people to provide these services.

        I think many people who abuse legal and illegal drugs are self-medicating depression, anxiety and other treatable or at least manageable afflictions that are prevalent in our society. I doubt anyone would choose addiction over a more constructive way to obtain the same pleasure (or surcease of anguish) that a hit of crack or a shot of heroin can provide.

        To try and answer both your questions at once: I would seek to reduce the demand for “illegal” narcotics by relieving some of the misery that causes people to use them and providing a legitimate pathway to an equivalent product so that people are not forced into a black market to supply their demand. I think that the old adage of “an ounce of prevention equals a pound of cure” is applicable here — we will see better results spending money to legitimately serve the need of the drug user, rather than trying to pretend that the need doesn’t exist and then punishing people who don’t conform to our expectations. Reduce or supply demand through legitimate means and you starve the illegal supply chain.

        • Tobias,

          Thanks very much for your response. I agree with you that there is a sense in which the poor and drugs are, sadly, connected due to the misery inherent in poverty. Anatole France, comes to mind after reading what you wrote. You no doubt will recall, and I should take pains to remember, that: “In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets, and steal loaves of bread.”

          All the best.

          RGK

          • You flatter my literary erudition, but I will use your reference as a starting point for further inquiry. Thank you for the engaging discussion and fascinating blog. I will continue to follow with great interest.

            Regards
            Tobias

  16. I might mention something that, interestingly enough, has not come up in this thread: Anyone who believes marijuana isn’t a gateway drug is just naive or grossly misinformed.

  17. Pingback: Only The “Foolish” Call Drug Crimes “Nonviolent” | Simple Justice

  18. Pingback: Two really good criticisms of my views about drugs, violence, and victimless crime « Hercules and the umpire.

Follow

Get every new post delivered to your Inbox.

Join 1,253 other followers

%d bloggers like this: