Now, thirty years into the "war on drugs," views about the law's reliance on punishment to fix the drug problem are less conciliatory and more absolute: "[t]he notion that 'the drug war is a failure' has become the common wisdom in academic ... circles." Those who have most closely studied the results of the "war" believe that it has "accomplished little more than incarcerating hundreds of thousands of individuals whose only crime was the possession of drugs." More importantly, they believe that it has had little if any effect on the drug problem: "Despite the fact that the number of persons in prison or jail today for drug offenses is more than ten times the number in 1980, drug use rates remain substantial, with data indicating a general increase over the past few years." Needless to say, these scholars urge law and policy makers to chart a different course.
The "war on drugs" has an almost identical history in the state of Kentucky. It reared its head in the early 1970s and appears to have involved some early conflict over the wisdom of using extraordinary punishment in an effort to control illegal drug use. The "war" has had the same kind of impact in Kentucky as it has had in the country. In the early 1970s, the state had about 3000 inmates in custody, had two prisons for men and a small prison for women, and had a corrections budget of no more than $10 million. In the spring of 2008, the state had an inmate population of 22,7196 and a very substantial and growing number of drug offenders within that population, owned and operated thirteen state prisons and had inmates in three private prisons, and had a corrections budget of about $450 million. Under the pressure of a budget crisis of unprecedented proportions, the state has used an early release program (under its power over parole) to reduce the inmate population by about 1000, so that by mid-year 2009 it had in custody 21,565 inmates (about seven times as many as it had at the outset of its war on drugs). Driven mostly by the budget crisis, law and policy makers have shown some exhaustion with the "war on drugs," but have yet to do anything to soften the very harsh laws that have flooded the state's prisons and jails with drug offenders. Without movement in that direction, notwithstanding crisis-driven early release programs, they will find very little, if any, meaningful relief from the incarceration addiction that is reflected in the above numbers.
The state's drug laws have not been overhauled since 1972 and can fairly be described as a potpourri of disjointed parts, with the most disjointed of all being the provisions that are used to send drug offenders to prison for long periods of time. A case can be made for junking the whole set of laws and starting anew from a clean slate, but, in a lawmaking climate still dominated by a tough-on-crime philosophy, an easier case can be made for selective reform aimed at the most indefensible and harmful of these provisions. In pursuit of the latter objective, I write in this Article about drug law reforms that could be achieved without jeopardizing public safety, that would slow and maybe reverse unsustainable growth in the state's inmate population, and that might provide some momentum for a different attack on the drug epidemic. As a first step toward these ends, I start with a discussion of an official acknowledgement that harsh punishment is not the only way to confront the tide of illegal drug abuse.
Robert G. Lawson, Drug Law Reform—Retreating from an Incarceration Addiction, 98 Ky. L.J. 201 (2009-2010).