John Kaplan's Marijuana The New Prohibition and Herbert Packer's The Limits of the Criminal Sanction Join to Suggest USA Reform its Drug Laws

According to Eric E. Sterling, President of the non-profit Criminal Justice Policy Foundation and former counsel on anti-drug legislation to the U.S. House Judiciary Committee, there are currently 2.3 million Americans in jails or prisons, many of them due to drug infractions:

"We certainly need to imprison dangerous offenders - to protect us and to punish them. But we need to get a lot smarter about why we imprison and who we imprison. Remarkably, in the last thirty years, the largest increase in imprisonment has been due to prohibition drug policy.

Even though drug enforcement leaders have warned for more than twenty years that "we can't arrest our way out of the drug problem," every year we arrest more people for drug offenses than the year before. Last year we arrested over 1.8 million Americans, more than three times the number arrested for all violent crimes combined. Now about one-quarter of those in prison are serving drug sentences. As the centerpiece of our anti-drug strategy, arrests and imprisonment have failed: high school seniors report that drugs are easier for them to get now than in the 1970s and 1980s."

Andrew Bosworth at PopulistAmerica.com in Incarceration Nation: The Rise of a Prison-Industrial Complex writes similarly:

"Consider this disturbing fact: the United States now has the world's highest incarceration rate outside of North Korea. Out of 1,000 people, more Americans are behind bars than anywhere in the world except in Kim Jong-Il's Neo-Stalinist state. The US has a higher incarceration rate than China, Russia, Iran, Zimbabwe and Burma - countries American politicians often berate for their human rights violations.

Well over two million Americans are behind bars. Let us agree that violent criminals and sex offenders should be in jail, but most Americans are not aware that over one million people spend year after year in prison for non-violent and petty offenses: small-time drug dealing, street hustling, prostitution, bouncing checks and even writing graffiti. Texas, with its boot-in-your-butt criminal justice system, is now attempting to incarcerate people who get drunk at bars - even if they are not disturbing the peace and intend to take a taxi home...

Arguably, continuously lowering the bar for what it takes to be jailed threatens the liberty of all Americans. And having one million non-violent offenders in prison (often for absurdly long periods) makes it that much easier, in the near future, for the return of debtors' prisons and dissident detention centers. This approach to locking up everyone possible undermines both the liberal emphasis on personal liberty and the conservative emphasis on small government."

Who out there in the American criminal justice system understands the basic wisdom found in Herbert Packer's Limits of the Criminal Sanction? What lawmaker, government official, judge, prosecutor, or prison official in the United States has ever read Packer's book - much less applied the inexorable legal policy conclusions demanded by it? (see Google Books, this PPT and Packer's Two Models of the Criminal Process)

Not every undesirable human action or activity in society is or should be subject to criminal punishments. There are other - more modern - means available to deal with socially undesirable behavior.

Indeed, the primitive idea of jails or prisons as legal solutions for societal problems has been around for millennia. But such jails and prisons, except as a deserved punishment of and/or an effective deterrent of violent and dangerous criminals, are by their very nature as outdated in modern law as the now discredited blood-letting is in modern medicine, which was an accepted medical practice worldwide from the earliest times of humanity down to the late 19th century, a flawed medical practice which surely cost America's first President, George Washington, his life (we quote from the Wikipedia):

"Bloodletting was also popular in the young United States of America.... George Washington asked to be bled heavily after he developed a throat infection from weather exposure. Almost 4 pounds (1.7 litres) of blood was withdrawn ... contributing to his death in 1799."

We were reminded of the similar backward state of contemporary American law by the April 26, 2009 TIME article of Maia Szalavitz on Drugs in Portugal: Did Decriminalization Work? (referring to an article by Glenn Greenwald at the Cato Institute), where the answer to that question in the title is a clear, resounding, "YES, drug decriminalization has worked in Portugal".

Szalavitz quotes Glenn Greenwald, writing at the Cato Institute:

"Judging by every metric, decriminalization in Portugal has been a resounding success," says Glenn Greenwald, an attorney, author and fluent Portuguese speaker, who conducted the research. "It has enabled the Portuguese government to manage and control the drug problem far better than virtually every other Western country does."

What sensible legal policy did Portugal adopt?

Going to the original article at the Cato Institute, Glenn Greenwald writes in Drug Decriminalization in Portugal: Lessons for Creating Fair and Successful Drug Policies :

"On July 1, 2001, a nationwide law in Portugal took effect that decriminalized all drugs, including cocaine and heroin. Under the new legal framework, all drugs were "decriminalized," not "legalized." Thus, drug possession for personal use and drug usage itself are still legally prohibited, but violations of those prohibitions are deemed to be exclusively administrative violations and are removed completely from the criminal realm. Drug trafficking continues to be prosecuted as a criminal offense....

The data show that, judged by virtually every metric, the Portuguese decriminalization framework has been a resounding success. Within this success lie self-evident lessons that should guide drug policy debates around the world." [emphasis added]

We are particularly gratified to read this result, because the Portuguese solution is the solution advocated 40 years ago by our mentor at Stanford Law School, the late Professor John Kaplan - famed for his legal brilliance from his days at Harvard, a former prosecutor who was a conservative at heart - who in the late 1960's was selected as a member of a top-notch advisory committee of law professors to advise the California state legislature on a revision of the California criminal (penal) code.

Kaplan's drug research at that time led the professorial advisory committee to recommend the decriminalization of marijuana in California to the California legislature - with the result, if memory serves correctly, that some if not all of the entire advisory committee was released from its duties by the legislature and replaced by other law professors whose political views were more in line with what the California legislature wanted to hear. I know of this only be hearsay and can not vouch for the exact details.

In any case, Kaplan responded to this experience with his book, Marijuana: The New Prohibition, which I had the honor and pleasure to edit while still a student, and in which Kaplan was of the opinion that drugs such as marijuana should be "decriminalized" - it was his major recommendation in this field of law. Drug abuse, as Herbert Packer - for whom I was also a student assistant at Stanford Law School - would have predicted by the principles in his book on the limits of the criminal sanction, simply does not lend itself well to control by criminal punishments.

Eric E. Sterling, J.D., President of the Criminal Justice Policy Foundation in his Drug Policy Bibliography and Websites lists Kaplan's book as follows:

"John Kaplan, Marijuana – The New Prohibition, Pocket Books, New York, 1971, 402 pp. A
classic. Stanford law professor John Kaplan demolished the factual foundation for marijuana
prohibition when originally published in 1970. Throughly documented."

Talcott Bates M.D. wrote in his book review of Marijuana: The New Prohibition:

"Professor Kaplan was appointed in 1966 by the California Senate to a committee to revise the California Penal Code, last completely revised in 1872. By chance he was assigned the drug laws, about which he felt he had no knowledge or experience except that which he had acquired as a one-time prosecutor as Assistant United States Attorney. It became apparent at once that the key drug problem in California was the treatment of marijuana. Not until the treatment of marijuana was intelligently handled would progress in the broader area of drug abuse be possible.

Marijuana: The New Prohibition reviews the history of marijuana, how in 1937, four years after Prohibition ended, Congress outlawed the sale, possession, and use of marijuana. Professor Kaplan points out that the measure of the wisdom of any law is the measure of its total social
and financial costs and the benefits that derive from this outlay. This book is an attempt to measure the costs of the criminalization of marijuana and concludes that the costs far outweigh the benefits."

It is not without reason, as written at ProhibitionCosts.Org, that in the year 2005, three Nobel laureates in economics and more than 500 distinguished economists advocated "replacing marijuana prohibition with a system of taxation and regulation similar to that used for alcoholic beverages [which] would produce combined savings and tax revenues of between $10 billion and $14 billion per year...."

In terms of drug possession and abuse, as I wrote previously elsewhere about John Kaplan's book:

"John Kaplan's
Marijuana -- The New Prohibition

John's book on the drug laws resulted from his membership on a professorial advisory committee to the California state legislature. John was quite conservative in his views and had in fact served as a public prosecutor of crimes, but his committee recommended a liberal stance toward marijuana - regarding its criminalization to be a legislative mistake.

John's view was that the legislature should concentrate more on workable laws regarding hard drugs such as heroin and cocaine, which were the major dangers. Too much emphasis was going toward marijuana - where young people were easily being caught in the act of smoking - and too little effort was being placed on going after hard drug makers and dealers, where arrests were much harder for the authorities to obtain.

As the result of the objective committee report, however, the committee was fired by the California legislature and a new committee was formed, ostensibly with members whose views were more in line with what the legislature subjectively wanted to hear, whether it fit the facts or not. In his book, John predicted that the criminalization of marijuana would not work - it did not work - and that, on the contrary, the marijuana laws would strengthen the hard drug dealers as suppliers - which in fact happened, leading many people to take stronger drugs. The drug abuse mess that exists today throughout much of America is partially the result of this very erroneous drug law policy, having concentrated on marijuana and not enough on the truly dangerous substances.

See: Marijuana -- The New Prohibition
by John Kaplan
Publisher: Ty Crowell Co; 1st Edition (June 1970)"

The State of California and the other states of the United States ignored Kaplan's recommendations and the results are now in, 40 years later. They do not speak well for the wisdom of past or current legislation on drug laws or their enforcement. According to the National Institute on Drug Abuse (NIDA) :

"In 2006, 25 million Americans age 12 and older had abused marijuana at least once in the year prior to being surveyed. Source: National Survey on Drug Use and Health; http://www.samhsa.gov/. The NIDA-funded 2007 Monitoring the Future Study showed that 10.3% of 8th graders, 24.6% of 10th graders, and 31.7% of 12th graders had abused marijuana at least once in the year prior to being surveyed. Source: Monitoring the Future http://www.monitoringthefuture.org/. "

The case for decriminalization and for a more intelligent approach to drug possession and abuse is clearly apparent.

Generally, in terms of all petty and needlessly "criminalized" legal infractions, there are great legislative and judicial opportunities out there to adopt sensible criminal laws, to get people out of jails and prisons who should not be there, and to help to integrate people into normal life rather than tossing them stupidly into jails and prisons, where little progress in development is possible for most. Quite the contrary, people are thrown together with hardened criminals, to their detriment. In most non-violent crimes, especially petty infractions, jail and/or prison should be the LAST option, not the first.

But how likely is it that an entrenched unmoving American legal system will now take the intelligent path forward to reform its vastly outdated drug laws and to free its jail and prison populations of people who should not be there?

Not very likely - unless the people in Congress and state legislatures suddenly get to be a lot smarter than we judge them to be.

For more resources on this topic, see the Cato Institute's Criminal Justice Reading List.

Building a Better Legal Profession (BBLP) : April 3-4 National Student Conference on Large Law Firm Reform : Layoffs, Recession : New Book on BigLaw

PRESS RELEASE

NATIONALLY RECOGNIZED STUDENT-RUN NONPROFIT RELEASES FIRST BOOK; ORGANIZES NATIONAL CONFERENCE ON REFORMING LARGE LAW FIRMS DURING ECONOMIC DOWNTURN

Stanford, CA, April 3, 2009 – Building a Better Legal Profession (“BBLP”) – the national student group whose efforts to reform large law firms “shook up the legal world,” according to the New York Times – has intensified its efforts in the wake of the economic downturn. On April 7, 2009, the group will release its first book, Building a Better Legal Profession’s Guide to Law Firms, a “for students, by students” guide designed to help students make considered career choices in a tightened labor market. On April 3 to 4, 2009, the group will host a national conference at Stanford Law School focusing on how the current recession has increased the need to reform law firm business practices.

The organization, now a registered 501(c)(3), founded at Stanford Law School, first made headlines in April 2007 for its critique of the business model of the large corporate law firm. That model depends on associates working excessive hours, resulting on high attrition, low female and minority partnership rates, and poor client service.

“Building a Better Legal Profession is a path-breaking effort to reform the legal profession in ways that speak to the most fundamental concerns of its next generation,” said Deborah Rhode, Earnest W. McFarland Professor of Law at Stanford Law School and Director of the Stanford Center on the Legal Profession.

According to BBLP President, Stanford 2L Davida Brook, “The economic downturn makes it clear as never before that the large law firm must adopt more rational business practices.” Brook pointed out that while some firms have laid off large numbers of young associates, “not all firms are the same. Some firms have better practices, for example, more diverse partners carrying a more diverse book of business, and were better positioned to weather the economic storm.”

Keisha Stanford, BBLP’s Director of Firm Outreach and a Stanford 2L, points out that “firms such as Cadwalader and Thatcher Profitt bet heavily on mortgage-backed securities and credit default swap deals with catastrophic results.” In response, the website has added a feature highlighting those firms that have done severe layoffs, information BBLP hopes that law students will consider during the fall law firm recruiting season.

“One particularly irrational layoff practice in some firms is laying off first and second year associates while continuing to recruit new classes of graduates,” said BBLP faculty advisor Michele Dauber, a professor at Stanford Law School. According to Dauber, firms are doing this to curry favor with law schools like Stanford. “These firms would rather fire 150 young people who have done nothing to deserve it than risk alienating the elite schools by not hiring for a few years until the economy improves.” Dauber suggested that associates should have a voice in layoff policies and that firms should give laid off associates the chance to be recalled before doing more hiring.

Guide to Law Firms

April 2009 marks the release of BBLP’s groundbreaking book for law students seeking ‘Biglaw’ jobs, Building a Better Legal Profession’s Guide to Law Firms (360pp., Kaplan Publishing, $24.95). The book was written by Stanford law students and includes numerous essays and contributions by law firm partners, associates, and other experts.

BBLP’s unique guidebook is intended to demystify and facilitate the law firm job search. “Our goal is to make the law firm a more transparent institution, by providing information to students about factors that are important to them such as work-life balance, diversity, billable hours, and pro bono commitment,” said Irene Hahn, the book’s editor and a 2L at Stanford Law School.

• In the book’s Forward, Sheila Birnbaum, a partner in the NY office of Skadden Arps, recounts her own brush with pay discrimination early in her career, and cautions young women that informal barriers to success still exist. According to Birnbaum, “this book is packed with practical suggestions” that will be invaluable to young lawyers.
  
  
• The first section of the book walks anxious interviewees through the hiring process. It provides information on how to evaluate law firm diversity initiatives, pro bono programs, and partnership models, as well as what questions to ask during the interview process.
  
  
• The second section of the book is devoted to BBLP’s trademark, turning the tables on firms by giving them grades based on diversity. The book’s firm report cards examine percentages of female, African-American, Latino-American, Asian-American, and LGBT partners. Rankings are provided for the country’s six largest markets: New York; Washington, D.C.; Chicago; Boston; San Francisco; and Los Angeles. The group’s website also provides rankings for five smaller markets including: Texas; Atlanta; and Philadelphia. Some brief findings from the book’s rankings:
  
  - While some large Manhattan firms have made strides in promoting women to partner, at approximately half of New York firms women make up less than 15% of the partners. Hispanic women seem to face particularly severe hurdles, with fewer than 20% of NY firms reporting any Latina partners, and only 7 out of the 80 firms surveyed reported more than one.
  
  - Certain areas of the country have done better than others in developing diverse lawyers. California – particularly Southern California – has far higher demographic diversity among both the partner and associate ranks of large law firms than other regions.
  

David Lat, founder of the popular website Above the Law, says, “It’s easy to lament the state of the legal profession today; bringing about real change is harder. But that’s exactly what BBLP is doing, with its revolutionary, market-based approach to reforming the modern law firm as a workplace. This book, part of BBLP’s larger mission of harnessing information for empowerment, is an invaluable resource for anyone exploring the often bewildering world of ‘Biglaw.’”

National Student Conference

The conference will host BBLP leaders from the nation’s top law schools, including Yale, Stanford, Harvard, Chicago, and Columbia. These students are the leaders of BBLP chapters started last year around the country. These leaders are coming together at the Stanford conference to plan the agenda for the year ahead.

“We are pleased to sponsor the conference and to support BBLP’s efforts to understand and change how law firms operate,” said Dean Larry Kramer of Stanford. “This will benefit clients, young lawyers, and the firms themselves in the long run. Nothing is more important for our profession.”

Highlights of the conference include:

• Saturday afternoon will feature a videoconference appearance by Ralph Nader, a 1958 graduate of Harvard Law School and a long-time critic of corporate law firms.
  
  
• The conference keynote will be delivered by Paul Barrett, associate managing editor of Business Week, and author of the 1999 book on race relations in large law firms entitled The Good Black.
  
  - Other speakers include journalists, academics, representatives of law firm management, corporate counsel, professional unions including SEIU and WGA, law professors, and former law firm associates hit by the “golden axe” of firm firings for a series of panels aimed at frank discussion of the current crisis challenging the legal profession.
  
  - BBLP has also partnered with the National Law Journal and the American Association of Law Schools to hold a discussion on the continuing importance of pro bono service at the conference.
  
  “With the current economic downturn, the issue of pro bono work has taken on even greater urgency,” said Rachel F. Moran, President of the Association of American Law Schools, Raven Professor at Berkeley Law, and Founding Faculty of UC Irvine School of Law. “There are fewer resources to support public interest work, and meanwhile, the ranks of those in need only grow.”
  

# # #

About Building a Better Legal Profession

Building a Better Legal Profession is a national grassroots movement that seeks market-based workplace reforms in large private law firms. By publicizing firms' self-reported data on billable hours, pro bono participation, and demographic diversity, we draw attention to the differences between these employers. We encourage those choosing between firms – students deciding whom to work for after graduation, corporate clients deciding whom to hire, and universities deciding whom to allow on campus for interviews – to engage only with the firms that demonstrate a genuine commitment to these issues.

BBLP was founded in January 2007 by Stanford Law students. In the summer of 2007, using publicly available data reported by firms and collected by the National Association of Law Placement (NALP), the organization examined the largest law firms in six geographic markets by several important quality-of-life criteria. BBLP produced a set of rankings for each market –New York, Washington, Boston, Chicago, Los Angeles, and San Francisco/Silicon Valley – for billable hour requirements, demographic diversity, and pro bono participation.

The organization released these reports on October 10, 2007 at a press conference at the National Press Club in Washington, DC. The goal was to provide law students a new set of rankings to help them decide where to work after graduation, in the hope that as more law students began to select firms based on quality-of-life criteria, rather than simply prestige or compensation, the top law firms would face increasing market pressure to reform their workplace culture in order to attract the best recruits. This project received significant media attention, including from the Los Angeles Times, Wall Street Journal, New York Times, CBS News, New York Law Journal, American Lawyer, and Above the Law.

More information is available at www.betterlegalprofession.org. For a press copy of our book, the BBLP Guide to Law Firms: The Law Student’s Guide to Finding the Perfect Law Firm Job (Kaplan Press 2009) please contact Davida Brook at the number and/or email below.

Media Contacts

Davida Brook
President
917-991-2240
davida.brook@betterlegalprofession.org

Michele Dauber
Professor of Law, Stanford Law School
650-521-6005
mldauber@law.stanford.edu

Keisha Stanford
Director of Firm Outreach
404-502-9646
kstanford@stanford.edu

Praise for Building a Better Legal Profession and the Guide to Law Firms

“It’s easy to lament the state of the legal profession today; bringing about real change is harder. But that’s exactly what BBLP is doing, with its revolutionary, market-based approach to reforming the modern law firm as a workplace. This book, part of BBLP’s larger mission of harnessing information for empowerment, is an invaluable resource for anyone exploring the often bewildering world of ‘Biglaw.’”

-- David Lat, Founder, AbovetheLaw.com

The Building a Better Legal Profession Guide to Law Firms is “a refreshingly readable, comprehensive, and wonderfully practical guide for launching your professional career as a lawyer.”

-- Sheila Birnbaum, Partner, Skadden, Arps, Slate, Meagher & Flom LLP

“Building a Better Legal Profession has provided us with a resource that has great promise. By comparing the largest law firms in the top legal markets, the students have put a spotlight on the key issues of demographic diversity, pro bono participation and hours billed. These enterprising law students have an enormous potential to be a force for good and for positive change – now and throughout their careers. I commend them for their dedication and hard work.”

-- Marcia D. Greenberger, Co-President, National Women’s Law Center

“We are pleased to sponsor the conference and to support BBLP’s efforts to understand and change how law firms operate. This will benefit clients, young lawyers, and the firms themselves in the long run. Nothing is more important for our profession.”

-- Larry Kramer, Dean and Richard E. Lang Professor of Law, Stanford Law School

“This report confirms that the legal profession has a long way to go in terms of becoming more diverse and fully reflective of our society. We hope that this report can also serve as a springboard for devising strategies that increase minority representation in law firms."

-- L. Jared Boyd, National Attorney General, National Black Law Students Association

“Building a Better Legal Profession is a path-breaking effort to reform the legal profession in ways that speak to most fundamental concerns of its next generation.”

-- Deborah Rhode, Earnest W. McFarland Professor of Law at Stanford Law School and Director of the Stanford Center on the Legal Profession.

“Change is coming to law firms. The most powerful agents for encouraging these changes, however, are not the law firm decision makers, the most powerful agents for change are associates, clients, and the shrinking talent pool of law students, who are, at last, finding their voices, asking hard questions, and forcing change.”

-- Patricia K. Gillette, Partner, Orrick, Harrington & Sutcliffe LLP

“These reports are extremely important. Even the best intentioned law firms can have gaps between policy and actual practice and objective numbers can help point out those gaps. Law firms as well as law students will benefit from better information that is widely available.”

-- Cynthia Thomas Calvert, Co-Director, Project for Attorney Retention