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.

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)