There was a fiscal toll as well. The budget of the Department of Corrections more than tripled, from $359.9 million in 1987, the year the CDRA was enacted, to $1.1 billion in 2011.
Barlyn says he was always skeptical of the way the drug war was waged. He believes it’s a skepticism other prosecutors may share but will only express after they’ve left law enforcement.
“It’s difficult to speak forcefully when it’s expected that you will take an invariably hard line against illicit drug use and trafficking,” he said.
Barlyn, who also served as the sentencing commission’s executive director, said the sentencing commission didn’t just find the long sentences problematic. There were also disabilities imposed, such as fines and having driving privileges revoked, exclusion from licensed professions, and bars from public housing and student loans, penalties that impair person’s ability to rehabilitate.
“It’s been well established that drug laws disproportionately impact people of color. But the disabilities imposed make it that much harder for all convicted drug offenders to successfully integrate back into a law-abiding community,” Barlyn said.
In some ways, New Jersey has been ahead of the curve. It actually started a drug court pilot program in several counties as far back as 1996, though it didn’t go statewide until 2004. And for addicted offenders who do wind up in jail, some are now sent to halfway houses as much as two years before their parole dates, where they receive drug treatment and other counseling aimed at helping them prepare for life on the outside.
Lawmakers also amended the CDRA so that offenders’ did not automatically lose their drivers’ license. Judges were also given more discretion in sentencing, particularly in cases that fell under the drug free school zone provision of the Act.
And in 2009, a U.S. District Court judge dissolved the federal consent decree that provided for federal oversight and monitoring of state police for 10 years because the force had made significant reforms with regard to racial profiling, and data showed minorities were no longer being treated differently.
These changes have had a significant and dramatic impact on how the New Jersey criminal justice system responds to drug offenders, Barlyn and Stout wrote in an article published this year in the Albany Government Law Review. The proportion of the state’s prison population incarcerated for drug crimes has dropped from 36 percent in 2002 to less than one-quarter, or 22 percent, today.
Despite the modifications, the state’s drug act remains largely intact, with repeat drug offenders still subject to lengthy mandatory terms of imprisonment, and neither judges nor prosecutors having much discretion to alter that sentence.
“Have we modified the school zone law? Yes. Have we made the drivers’ license discretionary on the part of the judge? Yes. But all other aspects of the law are unchanged. And what is resulting is a huge number of nonviolent drug offenders, the vast number of whom are in the drug business [to support their own habits], are in jail,” Stout said.
In the end, the question for policymakers is whether people with just a small quantity of drugs should be exposed to the criminal justice system, or whether drugs should be legalized, as marijuana was recently in both Colorado and Washington.
“There’s a very strong body of evidence that suggests that the criminalization of drugs has created far greater crime than it was intended to address,” Barlyn said, noting it was Prohibition that entrenched organized crime in this country. “The argument is, ‘Look, the cure is turning out to be worse than the disease.”