Baltimore Mayor Kurt Schmoke is unusual, but not as unusual as many people think. He's a legal system insider who is calling for drastic reform of the nation's drug laws.
Speaking at a meeting of the U.S. Conference of Mayors in Washington, D.C., in April, Schmoke urged Congress to hold hearings on the subject of legalization. "Let's take the profit out of drug trafficking," Schmoke argued, noting that illegal drug trade helps to finance gang activity and related crimes. Drug prohibition costs billions of dollars to enforce, Schmoke said, and this money could better be spent on the problems associated with drug addiction.
Schmoke, a Harvard-educated lawyer who formerly served as Maryland state's attorney, made waves in Washington with this move. But there is actually a growing number of people with first-hand experience in the legal system who are realizing that the drug laws are a failure. Many believe that the answer is legalization or decriminalization, but few of these people have been willing to suggest publicly such politically unpopular solutions.
Richard Chrystie is one soldier in the war on drugs willing to talk. Although his job as deputy district attorney for Los Angeles County requires that he prosecute people every day for drug offenses, he's opposed to the drug laws, believing they corrupt and clog the legal system.
Last year, he took his position public, writing in a letter to the Los Angeles Times: "The solution to Colombia's cocaine problem, and to our own nation's cocaine problem, is simple—legalize cocaine. And while we're at it, legalize heroin and marijuana also." By legalizing the drugs, he argued, we could clean up the problems associated with their illicit manufacture, distribution, and sale—problems much more serious than those posed by the drugs themselves.
Chrystie reminded Times readers that he is not some "liberal, pothead coke freak," but a man with 19 years of experience as a deputy district attorney. He speaks as one who has served on the front lines in the war on drugs and come away disillusioned.
Reactions to Chrystie's letter were polarized. One woman expressed "anger and amazement" and dismissed Chrystie as a burned-out and frustrated civil servant. Another man flatly stated that legalization would be "stupid—or criminal."
At the other extreme were two responses from people who, like Chrystie, have experienced the results of drug prohibition. "It was my session on a grand jury that jarred me to the same conclusion," wrote H.L. Thornton. "U.S. society pays a monstrous price in theft and assault, police and court overloads, and even waste of addicts' lives for the delusion that it can be cured by prohibition."
Otto Bortfield, a retired police chief who lived through Prohibition in the '20s, concurred that "drugs must be legalized." But "during my police career," he added, "it would never do to voice such heresy."
And heresy it still is, Mayor Schmoke and Deputy D.A. Chrystie notwithstanding. To speak openly on this issue is to risk public denouncement, peer pressure, and even loss of a career. In the face of such risks, many people inside the law enforcement and political and judicial system—the people perhaps most qualified to comment on this war's prospects—are also those most afraid to comment.
Deputy District Attorney Chrystie, soft-spoken and calm, hardly fits the image of the grizzled prosecutor hardened by daily contact with the seamy underside of Los Angeles County. He comes across more like a mixture of Peter Jennings and Ward Cleaver. He's intelligent and chooses his words carefully, always conscious of his position, and he emphasizes "that I speak only for myself, not for the L.A. County District Attorney's office."
Although Chrystie advocates legalization, "I'm not saying it's the solution to the drug problem. I'm saying it's the solution to one aspect of the drug problem." It won't solve people using drugs, which he opposes. But he figures it will relieve the clogged courts and "solve a lot of the corruption." And perhaps most important to the average citizen, "it will take the neighborhoods away from the dope dealers."
A full third of Chrystie's court cases, sometimes more, are strictly drug cases, and there is a second set of "invisible" drug cases "where people commit crimes to get money to buy dope." He says that's what turned him around on the wisdom of the drug laws—"going to court and seeing the number of cases that deal with drugs. Just with drugs. The resources we devote to that. And the clever guys, the clever prosecutors, the clever police who spend so much time on these dope cases. And I'm saying to myself, 'God, that energy could be so much better directed somewhere else.'"
Despite insiders' reluctance to make statements for the record, Chrystie says that they are much more willing to speak candidly about the drug laws among themselves. "An astonishing number of prosecutors have told me they agree with me.…In my opinion, most agree with me. And several judges have told me they agree with me but could never say it publicly." The latter is not surprising, he observes. "If I were ever up for a judgeship, or some promotion, I know what some guy is going to say. He'll say, 'Hey, that's the guy that thinks drugs ought to be legalized.' But I'm willing to do it. I'm willing to take that chance."
Another man willing to take that chance is John Buckley, retired sheriff of Middlesex County in .Massachusetts, who spoke out strongly and publicly for legalization while in office. In the early '70s he organized a group, including people from the Bureau of Narcotics, which went to England to study the successful British system of heroin maintenance. He tried to set up a similar experimental program with the Yale School of Public Health, where addicts could be given clean needles and clinically dispensed heroin.
"Now at that point," he says, in a rapid New England dialect, "we got into difficulties with the black community, who felt the white people were going to enslave them by giving them heroin.…But we finally devised a program where they were mostly white heroin addicts."
The next obstacle was the administration of Richard Nixon, who first declared "total war on the epidemic problem of drug use." Although Buckley's group managed to get the approval of the Department of Health, Education and Welfare, the Bureau of Narcotics, and the National Institutes of Health, "we ended up going to the White House to see Mr. Ehrlichman, who was in charge of domestic policy, and he wouldn't even listen to us." He concedes that "it was an election year, 1972, and it wasn't the best time to go. But then," he adds, "some of these issues, there's never a good time."
What had failed for Buckley in Washington, though, was working very well for him back home. He says that 40 percent of the people in Massachusetts at that time agreed that the heroin experiment should be tried. "And we were really just beginning."
In addition, despite dour predictions from conservatives, his continuing support for marijuana legalization was winning votes. When he came out for legalizing marijuana, he recalls, "People said to me, 'You know, you've just written your death warrant.' Quite the contrary. I was reelected. And I am a Republican in a county that's all Democrats. I was the only Republican to hold office all those eleven years that I was sheriff."
But we may now live in a more conservative decade. When Buckley retired in 1981, the country was already escalating into Reagan-induced antidrug hysteria. But Buckley believes the time is not far off when we will see serious drug law reforms. "We're talking heroin available for heroin addicts, clinically dispensed. We're talking small amounts of marijuana. I think we will see that, yes. You won't see it in today's climate, but this is a passing phase, too."
Arnold Trebach, a professor at American University who lectures to law enforcement groups, perceives a reform consensus forming among people in law enforcement. "A growing number express grave doubts about the wisdom of the drug laws," he says. "Now I don't know if that gets down to legalization as such. It might be a relaxation of the drug laws. A change in the approach that's taken. Maybe leaving them on the books like the sex laws. Think what would happen if you enforced the sex laws—you'd have half the population in jail and the other half under strong suspicion."
Trebach maintains that these outdated laws serve a social purpose, even if they are not enforced. "They meet the need of the public, and of our leaders, for hypocrisy, " he says. "Hypocrisy is a very important social strategy in certain areas…because there are certain areas about which we cannot stand the truth. And the key areas I know of right now are the areas of sex and drugs."
Jim Fyfe spent 16 years as a cop in New York and has seen casualties of the war on drugs. After patrolling some of the meanest streets in the world, he has concluded that attempts to stop drug trafficking by prohibition are futile at best. "I think that if you talk to—candidly talk to—a lot of people who have been involved in drug enforcement, what they will tell you is that they've been fighting a holding action. The optimistic people feel that they've been fighting a holding action. And there are very few of them—street level people—who feel that they're about to 'solve the drug problem.'"
Fyfe retired as a police lieutenant, and he, too, now teaches at American University. He speaks quickly and frankly with a strong New York accent and refers frequently to August Vollmer, a pioneering police chief of the early 20th century. "His argument," says Fyfe, "essentially was that the police can't control any of the vices, as long as there is such a widespread demand for them. And that the major consequence of police attempts to control things—he talked about gambling, prostitution, and narcotics—was police corruption, distortion of the system."
As an example of a distorted legal system, Fyfe points to drug laws enacted in New York at the instigation of Nelson Rockefeller in the early '70s. "When the laws were first proposed," he remembers, "I was a graduate student on leave from the police department in New York, and I looked at them and thought they were just bizarre." The penalty for some heavyweight drug offenses, for example, became higher than that for killing a police officer. "If you kill a cop," says Fyfe, "you could conceivably be out of prison in 5 years. If you get caught possessing large amounts of drugs, you have to do 15 years in the joint."
Fyfe objects to the kind of message this sends to the dealers. "If I were a drug dealer and found out I had sold to an undercover, the best thing I could do is blow him away—he can't make the drug case against me, and if he's not alive he probably can't make the murder case against me, either."
Bizarre drug laws continue, and not just in New York. The Drug Enforcement Administration, along with many local police, now engages in an activity previously considered improper—selling drugs. An appalled Fyfe describes the process: "The police are involved in what they call 'reverse buy' operations, where they send undercover officers out to sell drugs to people, then arrest them for purchasing the drugs."
But Fyfe, while against the drug laws, loyally defends his former compatriots who enforce them. "I know a lot of narcotics officers," he says. "They are working a very frustrating kind of job, and they know it. And it's a very dangerous job. They're very noble people—they deal with the scum of the earth, they put their lives on the line, and it's not a very glamorous job at all."
Joseph Allen, a defense attorney in Santa Barbara, California, who has worked as both a prosecutor and a judge, has a slightly different view of narcotics police. He maintains that drug law enforcers resist calls to reevaluate the drug laws because they are reluctant to give up their Miami Vice lifestyles. 'They enjoy the work," he says. "It's exciting, it's interesting, it makes them feel important. It's one of the most glamorous forms of police work. You get to travel a lot, you get to keep strange hours, you get to hang out with all kinds of shady characters. You get to spend money that you don't really have to account for very closely." Routine police work, by contrast, "is just not anywhere near as much fun as staying up to four o'clock in the morning, drinking in hooker bars, and trying to con dope dealers."
For such officers, says Allen, legalization would derail their gravy train. It is precisely because they know the work is futile that they feel secure in their jobs, he observes. "They know that their jobs are permanent, because they are on the front lines and they can see it—that nothing they could ever do will stop the problem."
Unlike Chrystie and some others inside the legal system who support the drug laws in principle but think they should be repealed on pragmatic grounds, Allen opposes them on moral grounds. He sees the individual's right to free choice as the key consideration. "I think it is fundamental to a free society that individuals make their own moral choices. Period."
Allen fears, perhaps more than anything else, the steady deterioration of human rights under ever-expanding drug laws. "There's nowhere to go from here," he says, "except Nazi concentration camps. That's the next step. If you're not willing to adopt a truly totalitarian society and search everybody's house in the country without a warrant and shoot everybody you find in possession, if you're not willing to go the Nazi or Soviet style, then we've gone as far as a free country can go."
It was concern over totalitarian abuses of the law that was partially responsible for Allen's decision to stop prosecuting and switch to defense. "I felt uncomfortable," he says, "being continuously responsible for prosecuting, and in many cases sending to jail or to prison, people who I regarded as harmless to the greater interests of society, but whose actions were unquestionably against the law."
In his 18-year legal career Allen has also served as a judge. Then, he says, the drug cases are even tougher. "The prosecutor doesn't sentence anybody. The judge does. It's your name that goes down on the paper, your signature that goes on the commitment order that sends him to prison. Not the prosecutor. And that's psychologically important."
Allen says that "the futility of it bothers many judges." They may also be particularly sensitive to the congestion in the courts created by the drug laws. "And the entire case load problem, civil and criminal, would be solved if you just took the drug cases out of court."
Allen, like Chrystie, notes that many of the judges who privately admit to favoring legalization would never say so publicly because they fear for their careers. "If you're controversial," he says, "you don't get made a judge. Governors don't want to buy themselves a lot of grief when they appoint somebody to the bench. They want somebody who's going to be viewed by all segments of the community as a nice, solid, hard-working, bland, uncontroversial, middle-of-the-road sort of figure."
Ex-sheriff Buckley also worries about this bureaucratic tendency to avoid controversy at all costs. "If we can find people who are willing…to stand up for what they believe, we can turn it around. Public opinion is clay that leaders mold, and if the leaders are going to mold it according to the latest opinion poll, then we're going to be chasing ourselves by the tail. Which is exactly what we're doing."
Breaking this cycle seems to be the key to reforming the drug laws. "It's going to take a very bold, confident, well-respected politician, with absolutely impeccable credentials," Chrystie speculates—"an attorney general of a state, or a governor of a state, or a well-respected senator, or something like that." A Kurt Schmoke, perhaps? Chrystie was commenting before the mayor of Baltimore and former attorney of Maryland raised eyebrows with his plea for Congress to begin debating legalization. If someone like that speaks out loud enough and long enough, Chrystie figures, "people might say, 'Maybe this guy ought to know what he's talking about. Nobody can question his credentials as a law-and-order advocate.'"
"As a matter of fact," Chrystie adds, "nobody can question mine. I'm a tough prosecutor. I mean, I wrote a manual on search warrants—when people search for dope, they use my manual."
Chrystie predicts that "in 10 years it will all be legal." Santa Barbara defense attorney Joseph Allen is slightly less optimistic. He agrees that reform is on the way but thinks it will be slow. "What you have to see is the last remnants of the generation that had no real experience with drugs pass out of political power."
One consensus seems to emerge: the drug laws should be changed. Among many people in law enforcement, from street cops to prosecutors, from defense lawyers to judges, there is a growing dismay with the status quo. Efforts can be intensified and even more resources consumed in the fight against drugs—this clearly is the reigning politicians' approach, with "zero tolerance" confiscations and hasty moves to engage the military in the fight. The alternative is decriminalization or legalization. At least some insiders, such as Schmoke and Chrystie, feel compelled, in spite of possible political consequences to themselves, to acknowledge the latter's benefits.
Philip Smith is a freelance writer in Southern California.
This article originally appeared in print under the headline "The Soldiers' Story".