When the current U.S. Supreme Court term began, Justice Antonin Scalia made headlines by appearing before the Senate Judiciary Committee and testifying that “[i]t was a great mistake to put routine drug offenses into the federal courts.”
Scalia was not arguing that drugs should be legal, but rather that there is a limit to what the federal government is competent, and constitutionally, permitted to do. Ordinary drug crimes are better left to state and local governments.
Essentially, Scalia was calling for a revival of 10th Amendment principles. The 10th Amendment to the U.S. Constitution reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Many Americans argue that this provision is being ignored by a federal government that seizes an ever-larger role in health care, environmental regulation, and other economic matters. Less remarked upon, but equally troubling, is the federal government’s increased jurisdiction over routine matters of criminal law.
In the 1970s, the federal government made state drug crimes also punishable under federal law. Suddenly, federal prosecutions did not just cover interstate drug trafficking, but also trafficking within states, small-time manufacturing, “protected location” offenses (e.g., distribution in a school zone), and even simple possession offenses.
At that time, 16 percent of federal prisoners were incarcerated on drug charges — today that figure is around 60 percent and the Bureau of Prisons is the biggest line item in the U.S. Department of Justice’s budget. It is not clear, however, that the federal government has done a better job of handling America’s drug crisis than the states would have done.
In Federalist No. 17, Alexander Hamilton observed that “[t]here is one transcendent advantage belonging to the province of the state governments…the ordinary administration of criminal and civil justice.”
Most drug offenses require only the ordinary administration of criminal justice. Federal agencies such as the FBI have limited resources, and priorities like terrorism and espionage should take precedence.
As Scalia pointed out, the glut of drug offenses has also overwhelmed the federal judiciary. Federal judges, who are supposed to be devoting their attention to complex constitutional problems, find their dockets increasingly clogged with minor drug crimes.
There is no reason why state prosecutors and judges could not handle these problems. Texas, for example, has received national attention for recent innovations handling low-level possession cases involving drug addicts.
This is partly due to the state’s drug courts, specialized “problem-solving courts” that address substance-abuse cases through comprehensive supervision, testing, treatment, incentives and immediate sanctions. The courts feature extensive interaction among the judge, the offender, the offender’s family and the local community.
These courts are proven to reduce recidivism rates among offenders and cost far less than prison. Drug courts are among the most creative ideas in American criminal justice, but there is nothing comparable to a drug court in the federal system.
Although a greater percentage of federal cases involve trafficking drugs rather than simple possession, most of those are not international kingpins or gang leaders but rather “mules” or street dealers selling to support a habit. Though these are serious cases often inappropriate for diversions, they are prosecuted successfully every day in all 50 state court systems.
Federal courts are saddled with mandatory minimum sentences that hinder the ability of judges to carefully tailor solutions for offenders in different circumstances. Discretion over sentencing has been given to Congress, an institution with a 13 percent approval rating. The federal system has also largely abolished parole.
Texas, conversely, does not have mandatory minimum sentences for drug crimes, and it has a parole system that utilizes graduated sanctions, instant drug testing and GPS monitoring.
Texas is spending less money, lowering recidivism, and enjoying its lowest crime rate since 1973.
Returning routine drug laws to state and local government is both sound policy and would be faithful to the U.S. Constitution. It should be an area where all Americans can find consensus.
Vikrant P. Reddy is a policy analyst for the Center for Effective Justice with the Texas Public Policy Foundation, a nonprofit, free-market research institute based in Austin, Texas, and a leader of the Foundation’s Right On Crime initiative.