Will money talk? The case for a comprehensive cost-benefit analysis of the war on drugs.

• Author: Sweet, Robert W.
• Position: Symposium: Drug Laws: Policy and Reform

The "War on Drugs" has been a central concern of the justice system for the more than thirty years I have served as a federal district court judge in New York City. At the start of my tenure, it was a learning experience for me, as I was introduced to an industry with which I was unfamiliar, beyond the well-publicized stories of busts, codes, and conspiracies. In 1989, after more than ten years of accumulating doubts about the efficacy of drug prosecutions, the fairness of the harsh sentences imposed, and the social and economic forces underlying drug-related crime, I publicly questioned the validity of the War on Drugs.

In December of 1989, I spoke out about the need for reform. (1) I had my fifteen minutes of public attention and reiterated my position in various fora. (2) My comments emphasized the absence of evidence of the War's success, the massive size of the underground economy sustained by criminalization, and the need to adopt a therapeutic, rather than punitive, approach toward drug addiction. My primary recommendation was that Congress eliminate the federal criminal prohibition on drugs and regulate drug sales similarly to those of alcohol.

The subsequent twenty years have served only to fortify and amplify my conclusions. While there is a vast amount of data indicating the toll that the War on Drugs itself has taken on our society, evidence regarding the social and economic benefits of the present system remains scant. If all the relevant facts can be determined and disseminated through a comprehensive, high-level, well-funded study of the costs and benefits of the drug war, common sense, social policy, and public opinion will dictate an end to criminalization and the adoption of a public health approach to drugs. (3) Indeed, as 2008 marked the seventy-fifth anniversary of the repeal of Prohibition, parallels must be drawn between the present economic crisis and the bleak financial situation facing the nation during the final years of Prohibition. (4) "Change is the law of life," (5) and after three-and-a-half decades of the War on Drugs, at a time of national economic and budgetary turmoil, change is imperative.

Thirty-five years after the so-called War began, the United States is the world leader in incarceration, with approximately 1 in 100 adults imprisoned. (6) Of the nearly 2.3 million people behind bars, nearly half a million are incarcerated for a drug offense. (7) Drug offenders represent more than half of the federal prison population. (8) The number of drug arrests has more than tripled since 1980, (9) reaching a total of over 1.8 million in 2007, more than for any other offense, 82.5% of which were for possession. (10) Lengthy incarceration has not been reserved for the worst offenders; the overall average sentence length for a federal drug offense ranges from 129 months for crack cocaine to 40.4 months for marijuana, (11) with the majority of cocaine and crack offenders subject to five- and ten-year mandatory minimums, (12) despite the fact that the overwhelming majority of them, approximately 90% in 2005, committed no violence in connection with their drug crimes. (13) In state prisons, more than half of the inmates incarcerated for drug offenses have no history of violence or high-level drug trafficking activity. (14)

As has been well-documented, the enforcement of the drug laws has been discriminatory in both its implementation and its effects, although constitutional attacks have not met with appellate approval. (15) While it is estimated that African-Americans represent only 14% of regular drug users, they constitute 37% of those arrested for drug offenses, and 56% of state inmates incarcerated for drug offenses. (16) The African-American community suffers disproportionately from the one-two punch of mandatory-minimum sentences and the Sentencing Guidelines' crack-cocaine disparity; in 2007, African-Americans represented only 29.5% of all drug offenders, but 82.7% of defendants convicted of crack offenses. (17) The average sentence for a crack cocaine offense, 129 months, is longer than that for offenses involving any other type of drug. (18)

Despite the astronomical numbers of arrests and prosecutions, the illegal drug industry, estimated at $320 billion worldwide, remains untaxed and undeterred, except by strict corner violence and drive-by shooting. The U.S. Office of National Drug Control Policy estimated that in 2002, the economic cost of drug abuse was $180.9 billion, having risen at a rate of 5.34% annually since 1992. (19) According to data released by the U.S. Department of Health and Human Services, neither marijuana nor cocaine usage rates in the U.S. have changed dramatically since 1971. (20) In fact, according to one recent international survey, the United States leads the world in lifetime incidence of drug use, particularly with regard to cocaine. (21) Despite efforts to cut off supply, the price of drugs has actually fallen over the past twenty years, from $350 for one pure gram of cocaine in 1981, to less than $100 in 2003. (22)

Even in the absence of significant signs of success, the federal government appears to be staying the course. The 2009 National Drug Control Budget totals $14 billion (not including prosecution and incarceration funds), approximately two-thirds of which will be dedicated to supply reduction measures, including $3.8 billion for domestic law enforcement efforts. (23) In contrast, the Federal Bureau of Prisons has requested only $69.2 million from Congress for inmate drug treatment programs. (24)

The costs of incarceration in state prisons and jails, which house the vast majority of drug offenders incarcerated nationwide, dwarf federal efforts as a percentage of total budgets. Such costs exceed $1 billion in thirteen states, and total $8.8 billion in California alone. (25) In 2007, five states spent as much or more on corrections than on higher education. (26)

These dollar costs pale in comparison to the less quantifiable, but even more significant, collateral costs, including broken families and communities; lost wages and child support; eroded community-police relations; and public health challenges posed by untreated addiction, including the spread of HIV and hepatitis through intravenous drug use. In addition, of course, are the opportunity costs of each dollar spent on law enforcement and incarceration rather than early childhood, K-12, and higher education, health care, housing, and other underfunded social services.

There are costs to the judicial system as well. Drug trafficking offenses have constituted the largest portion of the federal criminal docket for over thirty years. (27) Between 1985 and 2002, the number of drug prosecutions brought in federal court increased by 144%. (28) It is estimated that federal prosecutions and incarceration of drug offenders may alone cost approximately $5 billion annually. (29)

This says nothing of the exasperation and moral quandary faced by sentencing judges who are forced by statute to sentence addicts and non-violent, low-level offenders to lengthy terms of imprisonment despite being virtually certain that such sentences will neither reduce the demand for drugs and the associated violence, (30) nor address the needs of many individual defendants for long-term, comprehensive treatment. I am charged by statute with imposing a sentence that is "sufficient, but not greater than necessary," to, inter alia, provide just punishment for the offense, afford adequate deterrence to criminal conduct, protect the public from further crimes of the defendant, and provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner. (31) But when faced with mandatory minimum sentences, a complete absence of rehabilitative alternatives to incarceration, (32) and limited options regarding recommendations for drug treatment, such considerations are largely illusory. Many of my colleagues have expressed similar frustrations, and such dilemmas have led at least one of my colleagues on the bench to resign. (33)

The past twenty years have produced some amelioration of this punitive policy. In 1994, Congress added a "safety-valve" provision, intended to relieve non-violent, low-level, first-time drug offenders from statutory minimum sentences. (34) More recently, the United States Sentencing Commission adopted amendments to the federal Sentencing Guidelines which have the effect of reducing, although not eliminating, the disparity between sentences for cocaine and crack offenses. (35) It must be noted that while this reduction represents long-overdue progress, the amended Guidelines maintain an essentially arbitrary crack-cocaine disparity, ranging from 25:1 to 80:1, which, like the 100:1 ratio, is unsupported by scientific or economic data. (36) In the last session of Congress, there were several proposals to eliminate the crack-cocaine sentencing disparity entirely, in addition to repealing the five-year mandatory minimum for crack possession. (37)

On the state and local levels, progress has been more substantial. Twelve states currently have laws permitting the use of marijuana for medical purposes. State and local authorities are increasingly experimenting with alternative adjudication and sentencing programs, including specialized drug courts and community-based treatment alternatives to incarceration. (38) Experience tells us that when state legislatures find themselves under intense pressure to shrink their budgets to accommodate decreasing revenue, they often look to cut costs by reducing incarceration rates, in part by ameliorating the harsh effects of their sentencing laws. (39) By repealing mandatory minimum sentences, paring back truth-in-sentencing requirements, and granting judges greater discretion in sentencing, many state officials have been "forced" by tough economic realities to develop more cost-efficient...