Criminal Law and The War on Drugs 

My first law review article was on the subject of the role of criminal law in a democratic society.  I have long been a severe critic of the “War” on drugs as being in fact a war on our own children.  No doubt some substances need to be controlled, but the role of American, and especially federal, law in purporting to control them has been not only brutal but largely counterproductive and harmful to many legal institutions, notably the federal courts.  If the federal judiciary cannot be enlarged, it is important to move their criminal docket into state courts.  But even then, the adverse social consequences of the “War” have been enormous.  Other nations have been equally effective without the excesses of our laws.  My views have been intensified by a personal experience.  Two Letters to Judge Eaton.

In 1967, I favored appellate review of sentencing in federal courts.  Alas, that required guidelines that became minima.  The result has been many barbaric sentences for non-violent criminals, and the relocation of discretion from the judges to the prosecutors.  We now have, I am told, as many people in jail as all the rest of the world.  That cannot be far wrong.  When invited, I am eager to debate the wisdom of the "war" on drugs.  I lend support to those who seek more pacific methods of addressing the problem. 

In North Carolina, I must go to the state store to buy hard liquor  ID is required, and if I buy more than a bottle or two, I have to designate the place where it will be consumed..  Minors are effectively excluded from the premises, so their access to liquor is largely dependent on their parents or other adults.  I think the store should also sell the other substances with which humans have been abusing themselves for millenia: marijuana, coca, and opium.  Consumers should be limited to small amounts and be required to identify themselves.  Maybe tobacco should be placed in the same category.  The prices charged should be fixed at the highest price that can be charged without leaving room for a successful black  market of size.  If all the states enacted such laws, the nation would receive a huge benefit in the death of the vast global smuggling industry.  We could vastly reduce the number of drug law enforcement officers and put them to work harvesting and importing the controlled substances.  Hundreds of thousands of prisoners could be released from prison and put to work improving the national infrastructure.  What is wrong with this vision?

My publications on this subject include:

The Moral Quality of the Criminal Law, 54 NW. U. L. Rev. 575 (1959)

Book Review, Bok: Star Wormwood, 73 Harv. L. Rev. 1435 (1960)

The Twenty-First Wisdom, 52 Wash & Lee L. Rev. 333 (1995)

Good Sense and 21, 52 Wash. & Lee L. Rev. 987 (1995)

Federal Use of State Institutions in the Administration of Justice, 49 SMU L. Rev. 557 (1996)

The War on Drugs: Time for A Reality Check?, 14 Thomas Cooley L. Rev. 161 (1997)