By Judge Robert W. Sweet

Quite to my amazement, on December 13, 1989, I found myself on the front page of the New York Times and in the midst of a fire storm as a result of undertaking to speak to my wife’s club on effect of the drug laws. In that speech I expressed my view that the use of the criminal law to deal with the drug problem was expensive, ineffective and harmful, both in human terms and societal values. Like the prohibition on alcohol before it, the penalties on drug use and sale produced turf wars and random violence without significantly altering the practices involved. The only beneficiaries were the cartels and gangs that profited from a $150 billion dollar trade made illicit by the law. Prior to giving the speech, I had reached the conclusion that it was an appropriate subject--law reform--on which I could speak.

For the following ten days, about the length of time that the wandering spotlight of the media can focus, I found myself defending my views in various arenas. After that I was asked to speak at the Hoover Institution, the Cold Spring Harbor Laboratory, Harvard, and at forums in Minnesota, Holland, Rio de Janeiro, Washington, and a host of less exciting places. I have taken the liberty of sending materials on the subject to my brothers and sisters on the federal bench and have received both approval and criticism. Some 35 judges have agreed with the general proposition that I advanced and very few expressed confidence in our present policy. My convictions remain as stated ten years ago, but I have reached some additional conclusions as a result of the debate in which I have been involved.

The first, and most obvious, conclusion is that this is a very hard problem to discuss and one on which people react quickly and emotionally without reflection. More telling to me was that this was true of the media as well, particularly the electronic media. Short, pithy, and, if possible, extreme statements were desired, and a minute to explain a position was extremely generous. It was not possible to state a thesis, its antithesis and a resolution. Written materials, such as those in Foreign Affairs, the Nation, and the National Review have not been widely read. Although Congress, as part of one of its Omnibus Crime Bills set up a commission to study drugs and violence in society, it failed to appropriate funds for the project. There has not been a study similar to the Wickersham Commission which hastened the abolition of the prohibition on alcohol. It is assumed by legislators that punitive measures are popular, and even the courts have been affected. Articles have been written about the drug exception to the Fourth Amendment.

Yet, in the face of the accepted wisdom, change has occurred. Needle exchange programs have gained support in the health care community, and drug reform has been the subject of referenda in Alaska, Arizona, California, the District of Columbia, New Mexico and Washington, indicating that drugs are just that, not necessarily vehicles of inherent evil. Sooner or later the costs of our present policy and its ineffectiveness to affect change will also be recognized. When more money is spent on jails than education, as in California today, and that fact is recognized, it must be that the public will continue its reevaluation of the policy of criminal prohibition and be willing to accept another approach. Perhaps that moment is closer at hand when a popularly elected governor, Governor Johnson of New Mexico, is willing to speak out on the subject.

The attack on those of us who seek to end the criminal prohibition on drugs is that we are "legalizers," with the implication that we believe that drugs should be available over the counter at the local 7-11. Some of us, of course, do believe that Thomas Szasz, a distinguished professor at Syracuse, opposes even the distribution of drugs through doctors’ prescriptions, and believes that all drugs should be freely available as they were before the Harrison Act in 1914. He would place the responsibility for the ingestion of potentially harmful substances upon the individual, not the society, and the logic of that position is quite compelling. However, particularly for a judge who stands at the border between the society and the individual, the logic of free choice must be tempered by the societal concern for public health. After all, in most states motorcyclists must wear helmets.

Assuming then as I must that logic and the true facts will end our present policy of criminalizing the distribution of drugs, what should the future policy be? As a matter of consistency, it would seem that our present policy toward our two most common drugs--alcohol and tobacco--should be applied to other mind-altering drugs, a course which would make drugs available to adults without restriction, placing the responsibility for use upon the individual, while perhaps requiring some appropriate warnings as is now the case with alcohol and tobacco. However, the history of this issue and the rhetoric that has surrounded it bespeak caution. Because, like alcohol, certain of the drugs can have an addicting effect, and, again like alcohol, may affect conduct. And because both of these effects have a potential to affect others and to place costs upon society in terms of remedial action, the individual responsibility for the use of drugs should be reinforced and recorded.

To accomplish this goal, all drugs should be appropriately labeled; the criminal proscription on drug use should be ended; and drugs should be sold only to adults and only through licensed pharmacies to persons properly identified. The crime attending the current distribution of drugs would cease; $150 billion dollars would be restored to the economy; responsibility for drug use would be pinpointed and assumed by the user; the beneficial effects of medical drugs--marijuana, for example--would be achieved, and a reliable body of statistics would be available. Such a program developed in the laboratories of states should have a reasonable sunset provision.

If states can require motorcycle helmets, the registration of cars, and hopefully some day, guns, then the identification of those purchasing drugs does not appear to be too great an incursion of civil liberties. Certainly that incursion is dramatically less than those which have occurred in the course of the drug war. If indeed "change is the law of life", as President Kennedy is reported to have said at the Berlin Wall, then this change would be a most healthy and positive one in the view of this writer.