Criminal Justice Section
Criminal Justice Magazine
Volume 18 Number 3
Chair’s Report to Members
Drug Abuse and Drug Prosecution: Beyond the "War"
Norman K. Maleng
Norman K. Maleng is the chair of the Criminal Justice Section and the King County prosecuting attorney in Seattle, Washington.
Drug addiction is a great human tragedy. It ruins lives, imperils families and children, and tears apart communities. Every lawyer in America, regardless of his or her practice area, comes into contact with the destructive phenomenon of illegal drugs. Lawyers can and should play a major role in the debate about drugs in our society, but any discussion of drug abuse policy must begin with the acknowledgment of the tragic human costs of drug addiction.
When it comes to engaging in rational policy discussions about illegal drug abuse in our nation, we often stumble and stall when we begin by using the term "War on Drugs." Given its origin as a political symbol, the term "War on Drugs," whether used favorably or derisively, sheds no light on the best way to approach a complex legal, social, and medical issue.
"Wars" are fought with violence and force and are won by inflicting a superior number of casualties on the enemy; wars are not declared on a nation’s own citizens. Wars have a beginning and end; drug abuse has been with us throughout history and requires a lifelong commitment. Surely, the term "War on Drugs" has outlived its usefulness.
A consistent message
Our best approach to illegal drugs is to adopt a policy that is both antidrug and protreatment, and informed by emerging science and medicine. A new approach to drug policy must look to law enforcement and the criminal justice system to play three critical roles:
• First, to apprehend and incarcerate those who profit from the misery of drugs. This includes the importers, manufacturers and dealers.
• Second, the criminal justice system can provide an effective intervention point to leverage drug addicts into treatment.
• Third, our society must provide a consistent message to our children that drug use is wrong and harmful. The message that drugs are harmful must be reinforced by maintaining sensible laws against illegal drug use.
Treatment and sanctions work best together
Drug treatment works. This statement can be debated, but the facts are that treatment does work for some people some of the time. The statistical rates of success must be measured not against a bell curve, but against the success rate of no treatment at all. A 20 percent success rate is not an 80 percent failure rate. It is 20 percent more people off of drugs than would be achieved through no treatment at all.
Often the debate about the role of the criminal justice system and drug abuse becomes polarized between the goals of prosecution and treatment. Not only can these goals be consistent, they must be complementary. Given the choice between treatment and drugs, addicts will choose drugs. Given the choice between treatment and incarceration, addicts will choose treatment. If treatment is applied with persistence, some people will turn the corner and realize that sobriety is their best chance for life.
Nowhere is this better demonstrated than in the nation’s 700-plus specialty drug courts throughout the nation. Although individual programs vary, the cornerstone of the drug court is the judge, who leads the team of the prosecutor, treatment counselor, and defense attorney as they provide praise for success and consequences for failure along the long road toward sobriety.
The proliferation of drug courts is testament to their success, as are the numerous local and national evaluations now being published throughout the country. In nearly all of the studies, researchers have concluded that drug court participants commit new crimes at a significantly lower rate than those who do not participate.
Drug courts continue to save lives, one at a time. For some addicts, drug court provides the structure, incentive, and encouragement to fight the daily battle against relapse. They have proven that treatment without sanctions is no more effective than sanctions without treatment.
Finding new money in a time of deficits
In King County, where I have been the elected prosecutor since 1979, we have had a successful drug court since 1994. Like many fledgling drug courts, ours was started with grant money that soon ran out. In order to keep drug treatment as a realistic and permanent option for those who need it, we had to find another source of money. Even though drug court had proven itself worthy of a place at the criminal justice table, more than 70 percent of the county budget was already devoted to criminal justice costs. There was no new money to take on new treatment programs or fill the gaps left when grants ran out.
I turned to the state legislature with a proposal that would reprogram existing dollars from prison cells to treatment programs. Coming from a Republican prosecutor with a reputation for being "tough on crime," my proposal to reduce sentences for drug delivery crimes was taken seriously.
Washington State’s sentencing scheme had sentenced drug dealers to 21–27 months in the state prison system regardless of the amount of drugs sold or the presence of addiction. This sentence was adopted in the late 1980s in response to the epidemic of crack cocaine that swept the nation’s urban areas. Although that sentencing scheme was an appropriate response to a major problem, the consequences to the state prison population and budget were predictable and significant. Because so much of the budget was spent on corrections, little was left over to integrate drug treatment within the criminal justice system.
Our legislation set its sights on the state prison budget, reduced the sentence from an average of 24 months for drug dealing to an average of 17.5 months, and captured the resulting savings to be spent on drug treatment programs for defendants charged with felony crimes. Drug dealers still go to prison in Washington, but for a shorter period of time, and with the opportunity to receive drug treatment both in prison and upon release back into the community.
In the 2002 session, the Washington State Legislature did what we asked: It reduced prison sentences, identified the savings within the state prison system, and sent that money to local jurisdictions to fund drug treatment within the county criminal justice systems. This year, up to $8 million will be distributed for drug treatment within our state’s criminal justice system.
For those with a serious drug addiction, getting arrested and charged with a felony is not their biggest problem. In fact, if we design our systems right, being arrested might just save their lives. In Washington State, we have taken an important step toward making drug treatment a true option within the justice system.