Soaring Medicaid costs, reduced tax revenues because of economic stagnation and the collapse of a housing bubble, and enormous expenditures on pensions for retired government employees have imposed severe stress on the budgets of almost every state government. As a result, many states are being forced to cut funding for traditional and important services provided by state governments--such as civil courts that can resolve disputes within a reasonably expeditious time, protection of children from abuse, and protection of the environment.
Unlike most state governments, the federal government does not have the fiscal discipline of a balanced budget requirement. As a result, federal debt is now more than $15 trillion, (1) and that figure has been growing by more than a trillion dollars per year for the last four years. (2) The rapidly increasing debt could place the nation on a short path to Greek-style fiscal collapse. Not one U.S. Senator or Representative has proposed a tax increase that would, in itself, result in a balanced budget; indeed, a trillion-dollar tax increase probably would drive the economy into a deep recession. So regardless of whether tax increases are a good idea, the need to cut at least some federal spending is clear.
Because states and the federal government must trim nonessential programs to preserve the essential ones, it is time for states and the federal government to consider drug law reform. In this Essay, we make no philosophical arguments about drug prohibition. Rather, we identify several specific reforms that would reduce the fiscal costs of the "War on Drugs."
I. COLORADO REFORMS
Between 2001 and 2010, Colorado's violent crime rate fell by 8.3%, and the property crime rate fell by 30.4%. (3) During the same period, the prison population rose by 38.4%. (4) Perhaps the latter was one cause of the former. If so, it is an expensive cause. The average cost per inmate per year in public prisons is $32,334, and in private prisons it is $21,571. (5) So although sending someone to prison is less expensive than sending him to Harvard, (6) even small changes in prison population can have significant effects on state budgets. For example, in a medium-sized state such as Colorado, reducing the prison population by just a few dozen inmates could determine whether the state government can continue a matching grant program to poor, rural counties for a social safety net program.
Drug laws are the obvious candidates for sentencing reform. First of all, drug laws are the main cause of rising prison costs. As the Colorado Criminal Justice Reform Commission (CCJRC) puts it, "drug offenses drive prison growth." (7) Because nonviolent drug offenders are more than 18% of Colorado's prison population and no other nonviolent crime is more than 7% of the population, drug-sentencing reform offers the greatest potential for fiscal savings. (8)
Drug laws also are the best practical candidates for sentencing reform. Reducing sentences for almost any other crime is a guarantee that more innocent victims will be harmed, either by violent criminals (such as rapists and robbers) or by nonviolent ones (such as burglars and identity thieves). In contrast, the harms of drug criminals are inflicted primarily on willing "victims." (9)
Colorado recently enacted four laws to partially reduce the fiscal burden that drug overcriminalization places on the state budget. We consider each of them in turn.
A. Fiscal Note for New Statutory Crimes
Colorado's Democratic Governor John Hickenlooper certainly could not be considered "soft on drugs"--not even on "soft drugs." In 2007, the voters of Denver used the initiative process to enact an ordinance requiring that marijuana be "the city's lowest law enforcement priority." (10) Yet in 2008, then-Mayor Hickenlooper's police cited more than 1500 people for marijuana. (11)
In March 2011, Governor Hickenlooper signed House Bill 11-1239, a bill "concerning a requirement to include additional information in fiscal notes for certain bills related to criminal offenses. …