Judges are at the center of the criminal justice system and thus part of the problem of mass incarceration– but they can also be part of the solution. The judge does not define the acts that constitute crime, nor the punishment to be meted out for those acts; the legislators do that. It is the judge, however, who must assure the public, the prosecution, and the defense that the process is fair and true to all legislative and constitutional constraints. It is the judge who must face the defendant and determine the sentence. It is the judge who will determine whether or not the defendant will lose his liberty and, if so, for how long. Even within the necessary limits to his or her role, the judge can and should act to minimize the blight of mass incarceration which is described in this book. Transparency with respect to the charging process, flexibility and transparency in the sentencing process, continued opposition to mandatory minimum sentences, development of diversion alternatives to trial, enhanced re-entry programs and the development of a common law of sentencing are appropriate judicial goals in this effort. As a central actor in criminal justice the judge can, to a significant degree, become an agent for change.

The principal responsibility for the level of incarceration afflicting our society belongs to the drug laws and their enforcement. The statistics establish that responsibility. The Bureau of Prisons estimates that 46.6% of federal prisoners are incarcerated for drug offenses – more than the numbers incarcerated for violent crimes, extortion and fraud, weapons and explosives offenses, sex crimes, immigration violations, and participation in organized crime combined. The available data indicates that this percentage results from the harsher sentences imposed on drug offenders relative to those convicted of other crimes. While drug offenders make up nearly half of the prison population, they make up only 32% of those convicted in federal court (down from 35% in 2004 and 41% in 1996). The problem is also significant in the states, with 21.2% of the prison population in Illinois, 16% in Texas, and 12% in New York consisting of those convicted primarily of drug offenses.

For some, including myself, the criminalizing of some mind-altering substances was a national policy blunder. The lessons of alcohol Prohibition and its enforcement have been forgotten, and what is an addiction and a health problem has become criminalized. The drug war has not significantly altered drug use, has created a billion dollar untaxed industry, and has sapped public resources dramatically. As of Fiscal Year 2016, the White House’s National Drug Control Budget estimates that the federal government spends $27.6 billion on anti-drug efforts, but the full cost of the drug war is a multiple of that amount, once state expenditures and related costs such as law enforcement and correctional personnel are included. In total, the Drug Policy Alliance puts the annual cost of the drug war at over $51 billion.

The legalization of marijuana in Washington, Colorado, Oregon, and Alaska, and the recognition of its therapeutic value in the 23 states that permit some form of medical marijuana are signs that the laboratory of states is beginning to revise what has been the all-too-accepted wisdom of criminalization of mind-altering substances.

About the author

Robert Sweet

Judge Sweet is currently a senior United States federal judge serving on the United States District Court for the Southern District of New York. For many years Judge Sweet ( age 92) has publicly opposed the war on drugs and federal sentencing guidelines for drug offenses. He served as a naval officer in World War II and then attended Yale Law School . He served a John Lindsay’s deputy mayor from 1966 to 1969, and was known for keeping his home phone number listed, to field calls and complaints from the public.