On Dispensing Injustice

A. Marijuana

On Christmas Day, 1998, PRINCE CHARLES, on a hospital visit, encouraged a multiple sclerosis patient to use marijuana in violation of English law (89). In this country, President CLINTON'S pot use escaped the law because he didn't inhale (90). AL GORE'S more extended usage also somehow escaped its reach (91). Such stories of hypocrisy abound. In contrast, last year the Arizona press carried a story about a Kingman woman, born without arms and legs, who was sentenced to the state prison for eighteen months for using marijuana (92).

After alcohol and tobacco, pot is now America's number one drug choice (93), offering a transient, introspective high that at one extreme can cure nausea (94) or, at the other, elevate evening sitcoms to devastating wit. Its prohibition establishes a baseline cultural hypocrisy that we cannot escape, ruining lives to build a penal empire so that politicians can appear tough.

Our marijuana laws reflect the principle that empirical medical data about health effects are irrelevant to legislation. Our marijuana policy has become a prohibition in quest of a rationale, a desperate search to find some medical reason to validate an earlier culturally inspired prohibition. The claims made in the 1970s and 1980s about the effects of marijuana - that it causes brain and chromosome damage, sterility, infertility, and even homosexuality (95) - have never been proven and likely never will. Marijuana may pose dangers still unknown, but criminal law criminalizes known harms, not the unknown, and we do not penalize without first knowing what the harm is (96). Marijuana laws turn this principle on its head.

Although heavy marijuana use does harm the respiratory system, as does tobacco, marijuana remains one of the least toxic therapeutic substances known (97). No fatal dose of the drug has appeared despite more than 5000 years of recorded use (98). Pot is less toxic than many common foods and legal drugs (99). Marinol and Dronabinol, drugs with pot's same active ingredient, THC, have been available by prescription for more than a decade (100).

A policy that prohibits physicians from alleviating suffering via marijuana becomes more hypocritical when it forbids physicians to prescribe marijuana while permitting them to prescribe more dangerous morphine and meperidine (101). With both these latter drugs, the difference between the dose that relieves pain and hastens death is very narrow (102). By contrast, there is no risk at all of death from marijuana (103). To demand therapeutic purity is equally hypocritical; we certainly don't make this demand for tobacco or alcohol, whose known fatal effects far transcend marijuana's (104).

When the law is out of step with society's norms and labels ordinary citizens lawbreakers, its ability to shape public behavior erodes across the board. Public scorn results. Not surprisingly, our draconian pot laws have created a subculture of young lawbreakers who disdain all law and disrespect the adult world generally. Assertions that marijuana and alcohol lead to hard drugs get the question backward (105). Lawmakers march out of step with the public as well as with empirical data : polls consistently show that the public favors marijuana for health purposes; indeed, seventy percent of Arizonans think medical pot should be legal (106).

The human cost of our pot war far exceeds its financial cost. In 1997, 695,201 Americans (double the 1992 figure) were arrested for possession of marijuana, giving these mostly young people a permanent criminal record for using a drug as accepted in their culture as alcohol is in the adult culture; more than four million Americans were arrested and charged during the Clinton Administration before Clinton himself announced in an interview that marijuana should be decriminalized (107). Thousands of youngsters are serving prison terms for a first time, non-violent pot offense while being guarded by uniformed tobacco and alcohol addicts. Not the least of these excesses in Arizona is felony murder with a possible death penalty for any death associated with marijuana, including medical marijuana (108).

The illogic of our anti-pot hysteria appears most clearly in a federally funded 250-page report issued in March 1999 by the Institute of Medicine, a branch of the National Academy of Sciences (109). The White House Office of National Drug Control Policy, headed by drug czar Gen. BARRY McCAFFREY, commissioned and funded the two-year study after voters in California and Arizona endorsed medical marijuana in 1996 referenda(110). To ensure its impartiality, the Drug Policy office assigned the research to the independent, government-supported agency whose eleven medical experts would base their findings not on politics or policy but on undiluted medical data (111).

The conclusions of this latest report could not more fundamentally undermine our nation's present policy on pot. The institute found that marijuana helps patients with pain, nausea, and severe weight loss associated with AIDS and other serious illnesses (112). Most importantly, the report found no evidence that giving pot to sick people increases illegal usage generally, nor was there any support for the popular notion that marijuana serves as a "gateway" drug to more serious drugs such as cocaine and heroin (113).

General McCAFFREY'S response to his own commissioned research was to call for still "more research" (114). Such dogged aggression pervades the topic of marijuana whenever scientific research, repeated presidential commissions, or voter initiatives contradict official policy. Our pot hysteria reflects one of the great inconsistencies in our drug war, one that directly impairs legitimate drug prohibition. Despite contrary recommendations from government research, our government prohibits a substance repeatedly found to have medical benefits while desperately seeking still more medical research to justify its cultural prohibition. The answer to this backward quest is not hard to find, but it will not be found in the medical laboratory. We continue to penalize marijuana not for any medical or physiological reason but for cultural and ethnic reasons: we dislike the lifestyles of those who use it.

If we cared about penalties being proportionate to harm, we would devise a marijuana policy based on the recommendations of the many repeated but ignored presidential commissions (115). We could begin a step-by-step process by legalizing medical marijuana across the board and then move gradually to the legalization of small amounts for personal use; in other words, move toward a policy that has worked well in the Netherlands : allowing pot to be bought and used in licensed coffeehouses (116). If, as expected, no disasters result in any of these stages, outright legalization merely would put pot in the same category with our far more detrimental legal drugs, alcohol and tobacco. In the process we would abandon the upside-down process of first prohibiting a drug and then trying, desperately and after the fact, to discover a plausible reason for doing so.

B. Hard Drugs

In the 2000 electoral campaign, GEORGE W. BUSH all but admitted extensive use of cocaine (117). Like BILL CLINTON and AL GORE, and unlike less privileged people, his drug use somehow escaped criminal attention.

In the 1980s, conservative parent groups vigorously demanded that something be done about hard drugs such as cocaine and heroin.111 Politicians, typically, responded by demanding increased punishment (119). That approach is strikingly effective not in solving the problem but in alleviating political pressure. A naive public passively accepts that approach to almost all crime issues without questioning whether more punishment really solves the crime problem (120). This political posturing generates a succession of escalating cycles. Public demand leads to intensified efforts to attack the drug trade. That doesn't have much effect, so the penal efforts are intensified. Some Arizona drug sentences, accordingly, now match sentences for homicide (121), leading to dramatic growth in the number of drug arrests and augmenting prison populations to over 50%. nonviolent drug offenders (122). The frustration felt by politicians and law enforcement officers over their inability to kill the hydra-headed drug monster makes the imprisonment temptation strong. But slogans like "[p]rison camps for users and gallows for dealers," (123) which sounds bracing on the campaign trail, neither solves the problem nor sends a justice message.

Between 1985 and 2000, the number of drug offenders in national prisons escalated by eleven times from 39,000 to 450,000, costing taxpayers more than five billion dollars annually (124). Despite all this, the war on drugs has been ineffective. In 1997, General McCAFFREY candidly admitted that "if measured solely in terms of price and purity, cocaine, heroin, and marijuana prove to be more available than they were a decade ago." (125)

Blanket prohibition lies at the core of the drug problem. The diversion of substantial police, judicial, and prison resources to arresting, prosecuting, and incarcerating millions of drug users and dealers, mostly minorities (126), at an annual national cost of tens of billions of tax dollars and untold human lives, is not simply a drug or racial problem but a drug prohibition problem. When drug dealers kill one another and innocent bystanders, that's a prohibition problem. When drug addicts steal or prostitute themselves to support drug habits made more expensive by the black market, that's also a prohibition problem. When addicts spread the HIV virus because sterile syringes are not legally and readily available, that, too, is a direct result of prohibition.

Our drug war has achieved a self-perpetuating life fueled by the fruits of seizures and forfeitures making drug policing profitable and acquisitive for enforcers (127). However irrational as a government policy, it is fully rational as a law enforcement empire-building strategy. The debate about hard drugs goes nowhere if it remains a choice between waging a scorched-earth war as though defeat were impossible or surrendering completely to legalization. So long as the question appears in these bleak extremes, we will continue to reduce our prison empires to expensive but ineffective cold turkey centers. Contrasted to our drug policy, other Western countries follow a principle of harm reduction to minimize drugs' injury rather than stamp them out (128). They do not expect, as we naively do, to make their countries drug-free, and they do not rely, as we do, on draconian criminal laws as the first line of defense (129).

Tobacco and alcohol, not heroin or cocaine, are the most widely abused and deadly drugs ingested by our nation's teenagers and young adults as well as by criminals. Eighth graders in America today drink alcohol at least three times as often as they use hard drugs (130). It is hypocrisy to suggest, falsely, that drug abuse is a worse social problem than alcohol or nicotine addiction (131).

Drug researcher JOSEPH CALIFANO has observed that our national drug policy of blanket imprisonment for all drug users wastes public funds, endangers public safety, supports the illegal drug market, defies common sense, and offends compassion(132). The most common denominator among prison inmates is not race or ethnic background; it is addiction, and alcohol is the addiction far greater than drugs (133).

Politicians spouting tough but unfounded rhetoric have led us to believe

1. that prisons are full of incorrigible psychopaths,
2. that treatment does not work, and
3. that addiction is a moral weakness that any individual can correct simply by willpower.

C. Treatment

A federal study in 1998 found twenty-one percent fewer drug abusers regularly use illicit drugs five years after they leave treatment, a success rate that translates into more than 150,000 fewer drug users on the streets (138).

The study tracked drug use and criminal behavior of 1799 clients discharged from ninety-nine drug treatment facilities (139). The percentage using cocaine five years after treatment declined by forty-five percent, marijuana by twenty-eight percent, crack cocaine by seventeen percent, and heroin by fourteen percent (140). Those who continued using drugs generally used less than before their treatment (141). Thefts and burglaries committed by former patients declined by as much as thirty-eight percent, prostitution by twenty-three percent, and car thefts by fifty-six percent compared with the five years before treatment (142). Recent research again shows the efficacy of treatment even in the Nixon era, by comparison with our present punitive approach (143). Despite these repeated treatment successes, only seventeen percent of current drug users needing treatment receive it (144).

Arizona, the first state to begin treating all its nonviolent drug offenders rather than locking them up (145), reported in April 1999 that its policy of diverting personal drug possessors and users from prison into mandatory treatment saved $2.5 million in tax money otherwise used to put offenders into prison (146). Of the people on probation diverted into treatment, 77.5 percent tested free of drugs after one year, a rate significantly higher than for offenders on probation in other states (147). Under Proposition 200 (148), we now sentence drug possessors to mandatory treatment and tailor the treatment regime to the particular drug dependency (149) - a model for the future in a justice system not currently noted for deft distinctions.

Our drug sentences are too punitive, often more so than violent crime penalties (150). We could mitigate this harshness with little risk of expansion of drug use to give shorter sentences to retail drug sellers; to de-emphasize arrests for simple possession; and to shift drug resources from prison into prevention and treatment. Fairness, penal efficiency, and less plea bargain pressure would result.

D. The Solution

The political fear of appearing soft on drugs has contaminated our public drug debate. Drug crimes are not part and parcel of a univocal category of crime. Drug use differs from other kinds of crime : while locking up a burglar might lessen that crime, locking up one drug dealer simply leaves the same customers for new dealers, just as with prostitution. The prostitution analogy is apt. Do we really want to pursue a policy of targeting replaceable street-level dealers for mandatory sentences that impose great costs on vulnerable minorities (151). I and taxpayers while accomplishing little, if any, objective deterrence to drug kingpins and users ? That is too high a price to pay to provide politicians with a halo regarding a problem that, at its root, lies largely in the consumption habits of impoverished urban youth.

A less bellicose frame of mind might permit a workable hard-drug strategy of less polarity. Let us tolerate mild drugs such as marijuana, which consumes enormous resources for an evil far less serious than either legal tobacco or alcohol. For hard drugs we need a laser approach sensitive not only to dealers/users but also to relative social harms. For everyone who dies from cocaine poisoning, fifteen die from alcohol and sixty from tobacco-related illnesses (152). The mortality rate of tobacco users because of tobacco is more than 100 times greater than the death rate for cocaine users.153 We could begin by ranking these health risks and punishing users proportionate to the social harm of their addiction.

Our law also needs to treat addicts alike. Lower-class addicts, tuxedoed millionaire addicts, and addicts in political campaign trappings and sports uniforms need to be treated in an evenhanded manner without exemptions. An anti-drug commercial from a convicted sport addict - or from users like BILL CLINTON, GEORGE W. BUSH, or AL GORE - might well exceed the credibility of endorsements for tennis shoes, especially if the commercial were delivered from behind bars.

VI. THE DEATH PENALTY

The present sound-bite symbolism of the death penalty serves only vote-hungry politicians. As the slaughter house in Texas shows (154), the death penalty is the great vote-getter, premised on public demand for an executioner : retribution plus revenge plus retaliation equals re-election. Those who disregard that political chicanery follow former Governors DUKAKIS, CUOMO, and other principled politicians down the fatal path of appearing soft on crime (155). Setting out a crime policy that doesn't include the death penalty today requires unusual patience tied to persistence and courage, the latter difficult in an era of politicized penology. Many prosecutors and judges say privately that they're against the death penalty, yet in the courtroom and city square no one is willing to mount the podium and say that the public executioner wears no clothes.

The state's example of taking life in order to emphasize the value of life teaches the exact opposite of what it intends; it mimics the parent saying to a child, "That'll teach you to hit your brother" - then hitting the child to teach that lesson. Philosopher MICHEL FOUCAULT observes that the rampant abuse of power in state executions itself creates crime (156). Excessive and arbitrary executions at the end of the eighteenth century incited people to violence (157). Moreover, the terror of the public execution created its own illegality. On execution days, work stopped, the taverns were full, the authorities were abused, insults or stones were thrown at the executioner, fights broke out, and no better prey for thieves existed than the curious throng around the scaffold (158). Why ? Because people taught by this example of official lethal violence copied the violence (159). In our country in the last century, this same modeling phenomenon generated the monastic prison, private executions, and more embarrassing forms of punishment deservedly hidden from public view (160).

FOUCAULT'S observation applies to the transmission of all penal norms. Like any other law but more emphatically, capital punishment shows government teaching a lesson by modeling power. We kill the killer, we say, to show that killing is wrong. Under that logic, we equally should rape the rapist, steal from the thief, and pummel the assaulter. That we don't do so says that, in these instances, we understand the counterproductive modeling lesson that somehow we miss in killing the killer. The positivist teaching of our present death ethic is not subtle : if you have power, you may kill those who threaten it. This axiom exactly matches the attitude of most capital offenders. Recent research amply supports this brutalization lesson : the example of an official execution, instead of deterring killings, actually prompts some marginal persons to follow our state's lethal example (161).

Capital punishment offends on both moral and technical grounds even apart from politicians' noxious swooning over it. For those who do not or cannot address the moral issues, there remain the disturbing facts, supported by national and international data, that our capital punishment falls disproportionately on minorities, especially blacks and Hispanics (162), and sweeps some innocent defendants - at least twenty-three already executed (163) - in its wide nets, such as the eighty-nine wrongfully convicted (164), wholly innocent death row inmates recently released from the nation's death rows, living testimonials to the high rate of capital error.

The United States sits in awkward international company with capital punishment. While most of the world has either abolished or stopped using the death penalty, this country and this state are among a handful that still use it routinely. As of mid-April 2000, seventy countries had abolished capital punishment completely, including all of Western Europe and most of the former Soviet bloc, including Russia, Poland, and the Ukraine (165). Another thirteen countries had abolished it for traditional crimes, such as murder and rape (166).

Besides the United States, eighty-nine countries, mainly in Africa, Asia, the Middle East, and the Caribbean, retain the death penalty (167). But four countries - China, the Congo, the United States, and Iran - accounted for eighty percent of the 1625 documented executions that took place in 1998, the last year for which those figures are available, according to Amnesty International (l68). The United States, with 68 executions in 1998, ranked third in people executed that year, behind China, with 1067 executions, and the Congo, with 100, and one step ahead of Iran, which had 66 - distressing company indeed (169). In 1999 when the U.N. Commission on Human Rights called for a worldwide moratorium on capital punishment, the United States joined such notorious human rights violators as China, Rwanda, and Sudan in voting against it (170).

Most of the countries that still use the death penalty have limited its use. Even China, long the world's leading executioner, finally signed in 1998 the International Covenant on Civil and Political Rights, a 1966 treaty prohibiting the execution of juvenile offenders (171). But not the United States. While it has signed the same treaty that China and 142 other countries have signed (172), our country remains the only one to reserve the right to execute juvenile offenders - a reservation which itself violates international law (173). Ours is also one of only two countries - the other being Somalia - that has not ratified the 1989 U.N. Convention on the Rights of the Child, which includes the same prohibition against the execution of juvenile offenders but does not allow signatories to attach any conditions incompatible with its terms (174). Twenty-three of the thirty-eight states that retain the death penalty permit the execution of juvenile offenders, Arizona included (175). Since 1973, more than 180 juvenile offenders have been sentenced to death (176). And thirteen juvenile offenders in this country have been executed since 1985, more than one-third of the total number of juvenile offenders known to have been executed worldwide in the past fifteen years (177).

In October 1999, the Inter-American Court on Human Rights held, in an advisory opinion, that the United States' failure to inform detained foreigners of their right to consular assistance under the Vienna Convention on Consular Rights violates their due process rights (178). In December 1999, the U.N. General Assembly endorsed the court's findings by a vote of 121-1, which the United States alone opposed (179).

Since Arizona's death penalty reappeared in 1976, Arizona has executed three foreign nationals - JOSE VILLAFUERTE, a Honduran citizen, and KARL and WALTER LaGRAND, German citizens - after failing to notify their home country of their arrest (180). With these failures, Arizona and the United States violated the Vienna Convention on Consular Relations. In the case of WALTER LaGRAND, Arizona also violated a stay order of the International Court of Justice (181). Three other foreign citizens await their execution on Arizona's death row after seeking redress for violations of the Vienna Convention; in each case, Arizona's violations of the Vienna Convention are undisputed (182).

The most far-reaching study of death penalty error in the United States has found two of every three convictions overturned on appeal, mostly because of serious errors by incompetent defense lawyers or overzealous police and prosecutors who withheld evidence (183). Arizona appellate courts found serious, reversible error in four out of every ten death-penalty cases (184). Among the twenty-eight states examined in the study, Arizona ranked tenth highest in overall capital error rates (185). The nonpartisan report concludes that the nation's capital punishment system is "collapsing under the weight of its own mistakes." (186) These considerations have prompted the United Nations, Amnesty International, and the American Bar Association to condemn our nation's death machine and to call for a moratorium (187). Amnesty International's Annual Report for 1999 finds that our death penalty practices justify calling this country "an egregious human rights violator" (188).

A moratorium alone can hardly redress the moral and human shortcomings of our capital punishment. Nor can judicial or legislative control correct untrammeled prosecutorial discretion to charge, to seek the death penalty, and to plea-bargain around it at total whim-an ocean of prosecutorial discretion that still squarely violates the uniformity required by Furman v. Georgia (189).

If politicians lack the courage to confront capital punishment's counter-productivity head-on, we could achieve at least modest departures from the existing demagoguery. Our embarrassing slaughterhouse practices suggest that capital defendants need to have truly expert legal counsel at public expense. Politician judges, prosecutors, and lawmakers who campaign on public executioner promises to liberally impose the death penalty ought to be disqualified by law and ethical rule from any involvement in any capital case, simply because their electoral pandering eviscerates any plausible remnant of impartiality (190).

These measures are stop-gaps at best on the higher road to the position reached, after many years, by Supreme Court Justice HARRY BLACKMAN :

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored - indeed, I have struggled - along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self evident to me now that no combination of procedural rules or substantive regulation ever can save the death penalty from its inherent constitutional deficiencies. The basic question - does the system accurately and consistently determine which defendants "deserve" to die ? - cannot be answered in the affirmative (191).

VII. A PRISON STATE

The Federal Bureau of Justice Statistics shows that the United States's prison population reached two million inmates late in 1999, setting our incarceration rate as the highest in the world (192). We lock up people at a higher rate than any country in the world, at five to eight times the rate in most industrialized nations (193). Our national prison population has quintupled since 1973 and gone up six times since 1970 (194). During the same quarter century in which our prison populations exploded, the reduction in the crime rate crawled up to only twenty percent by the year 1999 (195).

Arizona's pattern is even more punitive. Over the twenty-five-year period of 1974-1999, the Arizona prison population increased fourteen-fold, ballooning from 1915 inmates on June 30, 1974, to 26,169 inmates on June 30, 1999 (of which over 2000 are women) (196). This rate far exceeds the growth in the nation's overall prison population, which increased six-fold over this same period (197).

Several factors account for this tremendous growth. The increase in Arizona's general population is one. Over this period, the number of Arizona residents increased by 115%, rising from 2,223,200 in 1974 to 4,784,631 in 1999.198 There would be no more than 4121 inmates in prison in 1999, however, if our prison population had grown only at the rate of the general population (l99). Other reasons predominate. The number of drug offenders sentenced to prison in Arizona increased from fourteen percent of all admissions in fiscal year 1986 to twenty-six percent in fiscal year 1999 (200). On June 30, 1999, 5452 inmates (twenty-one percent of the prison population) remained incarcerated for drug offenses alone, including 1857 for drug possession and 3595 for drug trafficking (201). Mandatory and draconian sentences also account for this massive expansion (202).

The most shocking aspect of our incarceration mania is not the quantity of persons we incarcerate but their quality. While we are putting more hard-core and violent types behind bars than ever before (203), we are also imprisoning more non-violent offenders than ever before - 78.2% of Arizona's 1999 prison admittees were non-violent offenders (204). The largest segment of Arizona's prison population -:58% - now consists of non-violent first time and repeat offenders : 15,019 out of a total 25,836 in 1999 (205). Of all inmates, twenty-one percent are imprisoned only for non-violent drug offenses (206). Incarceration levels for non-violent drug offenses have mushroomed since 1980 (207).

This blanket incarceration policy is hitting the wrong targets. As criminologists Zimring and Hawkins note, "[T]o the extent that general increases in the severity of penal policy narrow the gap between the punishment for dangerous and non-dangerous offenses, the law's educative and moralizing emphasis on violence is actually diminished by across-the-board increases in penal severity." (208)

When most prisoners are violent offenders, the distinctiveness of violent crime sharpens. But when many non-violent offenders also go to prison, the distinction between the violent and the non-violent blurs. As the absolute severity of many violent offenses increases, the relative severity of the punishments for individual offenses diminishes (209). If the punishments for both robbery and burglary increase, but the punishments for burglary increase more than those for robbery, the penal gap between robbery and burglary narrows. The utilitarian calculus that arguably animates potential offenders' decisions will produce a higher ratio of robberies to burglaries than under a more discriminating regime (210).

To the extent that killing during other crime declines by threatening the maximum punishment for lethal acts and lesser punishment for nonlethal acts, the incentive to avoid killing diminishes as punishment for nonlethal crime increases, because the gap between the two punishments closes. If the threatened punishment for robbery is two years and for a robbery-killing is fifty years, the difference between those two offers, arguably, a penal incentive to refrain from killing. But if the punishment for robbery increases to eight years, the difference between the two penalties diminishes. If non-violent behavior receives the maximum penalty in the first instance, no recourse exists to a higher threatened punishment. The analogy is to a building where the ceiling's height cannot be increased : raising the level of the floors merely decreases the distance between the floor and the ceiling. The paradox of our prison mania is that the largest increases in punishment occur not for violent offenses but for offenses of lesser seriousness, like drugs, on the margin between prison and non-prison sanctions (211).

Differentiating between the penalties for violent and non-violent offenders becomes not only appealing from a philosophical point of view, but it also makes fiscal sense, because unnecessarily harsh prison sentences invest disproportionate taxpayer resources on those less likely to menace us (212). An aging criminal is progressively less likely to commit crime (213). The largest age segment of the prison population in Arizona consists of individuals between the ages of 18 and 49, with those aged between 30 and 34 years the most populous group (214). The over age-39 group is still a significant percentage because of lengthy mandatory sentencing. Our 2000 inmates over 50 years of age are not likely to commit more crime (215). With annual incarceration costs approaching $20,000 per inmate per year, it makes neither economic nor deterrent sense to keep most non-violent offenders over age 50 in prison (216). With such diminishing marginal returns, each incarceration dollar spent to keep inmates in prison past age 50 buys progressively less protection. Those tax dollars would be better spent on community programs, other than prison, for such offenders, and an aged release program for elderly inmates.

Each year the Arizona Department of Corrections releases 1900 inmates onto the streets, with $50 spending money, knowing full well that most of these 1900 people will be homeless (217). If that indifference doesn't speak for itself, the legislature's warped penology appears in two statutes in Chapter 17 : arson of an ordinary residence, even if unoccupied, is a class 2 felony; arson of a prison crowded with inmates is two grades less severe, a class 4, reflecting an inconsistent attitude toward imprisoned human beings (218).

VIII. CONCLUSION

"It's time we steered by the stars rather than by the lights of each passing ship." - Gen. Omar Bradley

If the law is a teacher, Arizona's criminal justice system, as described above, teaches lessons such as the following :

• people who do bad acts do not deserve to be treated by principle
• people who invoke justice are allowed to mistreat criminals
• our criminal law, supposedly more careful, abandons principles enshrined in civil law regarding mental state, individual culpability, and admission of mental state evidence
• we will correct non-violent criminals by incarcerating them with violent criminals
• we penalize the drugs preferred by youngsters and minorities while ignoring the more harmful drugs (alcohol, tobacco) of the adult world
• people committing the same crime are indistinguishable in culpability
• manipulative plea bargaining will extinguish an offender's manipulative attitudes
• we create sentences so severe and so mandatory as to generate plea bargaining to escape them
• we laud the constitutional right to trial while generating guilty plea pressures to deny it
• we kill to teach that killing is wrong

This state has adopted gulag policies that reflective people who care for the obverse of the lessons above should abhor. This state's crime policy has been driven over the past quarter-century by exaggerated fears, political ideology, and electoral opportunism rather than by criminological data. Indeed, no other field of government endeavor shows such a chasm between government policy and scholarly research (210).

Our political debate on crime in this state rarely addresses real crime-cutting measures like gun control, jobs, and mandatory education or government service during the juvenile crime-prone years. Our lawmakers instead model the politics of image, of getting and staying elected. A naive public misconstrues slogans like the "War on Drugs" as solutions. But, like war, justice itself is not self-justifying-HITLER and STALIN, after all, also invoked it. As KARL JASPERS reminded the German people in The Question of German Guilt after World War II, passive acquiescence is a greater danger than questioning policy, especially when lawmakers regularly give the public what they think it wants-tough talk and tough symbols without any empirical research on their lessons and effects (220). Toughness occurs at the expense of justice.

A. The Role of Judges and Legislators : Assessing the Blame

Acknowledging that those who help poison the well should hardly become water commissioner, the fact remains that the judiciary cannot escape responsibility for these harms. Our robes, formalities, and discreet silences mask criminogenic problems that we both perpetuate and ignore. In Justice Accused, ROBERT COVER studied judicial approval of slavery in several nineteenth-century cases where conscientious judges, all personally troubled by slavery, faced a "moral-formal" dilemma that they thought required them to uphold slavery despite serious moral reservations (221). The judges thought that responsibility for slavery lay elsewhere and wrote decisions with pleas of distress, helplessness, and regret (222). Cover found that the robe deadened critical thinking outside the lines of formal subservience, leaving the anti-slavery judges mired in the dilemma of four unsettling choices : (1) apply slavery laws against conscience, (2) follow conscience and be faithless to the law, (3) cheat, or (4) resign (223).

Why did the anti-slavery judges almost uniformly bolster the very institution they rightly abhorred ? Cover sees them hiding behind strict constructionism, groping blindly in a forest of formalities and shrinking from even modest statutory criticism, and ending by opting unhappily for the "justice" - if it can be called that - of the status quo (224). In place of this model COVER suggests that the ideal judge ought to be questioning both the moral content and efficacy of the law : Does it work ? Is it fair ? What are we teaching ? (225)

Legislators are the greater source of the gross injustices in our penal system (226). Arizona's present criminal code shows the folly of drafting criminal statutes without regard for the Model Penal Code (227). Legislators who draft on the fly, independent of scholarly models, risk creating statutes fashioned for the crisis of the moment. Repeated "drive-by" legislation based on newspaper headlines is not a principled approach to something as enduring and sensitive as the criminal law. The Model Penal Code has blazed the path of criminal codification in this country traced earlier by Sir JAMES STEPHEN in England and Lord MACAULEY in India (228) showing how statutory deadwood can be chopped away and sanctions kept standardized and principled over time. The Model Penal Code has been the standard for criminal law drafting for the past quarter century, carefully followed by many principled states (229). Arizona lawmakers are almost alone in ignoring it.

Contrary to our legislative habits, throwing a law at conduct rarely eliminates it. This thunderbolt tendency reveals two kinds of triviality : triviality of object and triviality of intention (230). Triviality of object refers to selecting behavior for which punishment is disproportionate, such as making consensual sex and marijuana predicates for felony murder (231). Triviality of intent means an attitude of legislative indifference toward actual enforcement of their decrees, as in the case of our archaic morals statutes (232). A conscientious legislator would not vote to penalize conduct without knowing both that law enforcement had the resources to apprehend violators and, more fundamentally, that society truly needed such protection as a priority (233).

Instead of these legislative patterns, responsible criminal enactments require a cost-benefit analysis, particularly for ever-increasing sentence lengths. With prison beds costing $20,000 per year in present dollars, and about fifty-eight percent of inmates imprisoned only for nonviolent offenses (234), it makes financial sense to ask whether more nonviolent and older criminals need to be housed and fed in prison at the public's expense and whether so many aged offenders need to be incarcerated long beyond the crime-prone years between ages sixteen and twenty-two.

A complex relationship exists between the vigorous enforcement of a criminal prohibition and its public acceptance. As demonstrated by voter support for Proposition 200 that legalized medical marijuana (235), and did so in face of legislative and law enforcement opposition, it is by no means clear that legislators and courts can persuade the public to view conduct as criminal simply by declaring it to be so. The criminal law is not that potent a weapon of indoctrination. Drug and alcohol prohibition and Proposition 200 suggest the reverse : the indiscriminate application of overbroad criminal sanctions to broad social ills devalues mainstream prohibitions by diminishing government credibility. If we make criminal what the public regards as acceptable or otherwise solvable, either nullification occurs or people's attitudes towards all law move toward disrespect, as has already occurred with behaviors ranging from consensual sex to speed limit laws (236). Ultimately, the legislative contribution to criminal injustice resides in our lawmakers' steady politicization of crime issues over the past quarter century as they have discovered votes in unnuanced toughness on crime. Toughness may generate more votes than smartness but, in the process, it eventually also generates injustice and incredulity.

Calls for reform fall on deaf ears. That crime approaches the number one public concern virtually guarantees that nothing principled or empirically significant will be legislated to make our court system just, simply because the goal of most legislative crime policy is not really justice but only to polish halos and to avoid any perception of softness. Politicians thus vie with each other to talk toughest, good slogans take the place of good policy, toughness replaces smartness, and dramatic but unprincipled sound bites become laws with little debate, discussion, or dissent. The same regrettable political opportunism that generates these penalexcesses makes it unlikely lawmakers can repeal or correct them. Paralysis results. Like defendants, justice has no constituency; only tough image does.

B. The Solution

Chere was once a medieval monk who said the word "mumpsimus" in the Mass instead of the correct "sumpsimus" ("we consume"). When his superiors corrected him, he responded by saying, "I don't care what is correct; you take your sumpsimus, and I will stick to my mumpsimus no matter what is right." The medieval monk and today's politician have "mumpsimus" in common : a preference for doing things their own way coupled with dogged disregard of contrary empirical data.

In the past twenty-five years, this state's lawmakers have linked political success to polishing a tough-on-crime image that translates, first and foremost, into the emphasis on unprincipled legal procedures and draconian severity of punishment that in turn translates into prison as the paradigm of severity. This penchant for severe prison sentences at all costs, including taxes and human lives, obstructs more realistic, less expensive, more effective, and more just crime policies. A companion folly of current crime policies is lawmakers' rampant ignorance of or indifference to empirical crime data. Lawmakers either cannot or will not respond to scholarly criminological research or even anecdotal reports from experienced workers in the trenches.

The statutory result is a vast chasm between what lawmakers enact and what criminological data require. The political and empirical positions are rarely consonant and seldom the subject of dialogue. The prime culprit is the political "mumpsimus" mentality that panders to the electorate with hysteria about toughness on crime in order to seduce votes. Pandering to public fear usurps leadership and education on effective penal policy. When "mumpsimus" judges and lawmakers consider relevant empirical research, they usually turn their backs on such data because it may tarnish their image of toughness. Paralysis and continuing injustices result.

The prospect of turning "mumpsimus" politicians into careful followers of social science data is bleak; espousing the topics in these pages might, after all, ruin careers. Some justice-related decisions present such excruciating demands for courage from elected officials that it is better to eliminate their need to make them. This state needs another forum to manage our penal system, a professional group above political image, to bring empirical research to bear on justice and to highlight where current policies behave irrationally. Ultimately, the best interests of lawmakers themselves suggest that they shed control over the justice system. We need to remove criminal policy from lawmakers, perhaps by voter initiative or by constitutional amendment and turn it over to nonpartisan experts like a sentencing commission or an independent board of criminologists with empirical skills and a sense of principle. If lawmakers retain any control, however small, their votes need to be compelled not by self- aggrandizement but by sound empirical data and consistent principle, traits not prevalent today.

The best interests of principle- and tax dollars-dictate establishing, by a voter initiative if necessary, a continuing non-political criminal justice commission of professional researchers to act as continuing critics of existing laws and a censor for any new ones. As a first agenda, our criminal laws require a wholesale revision matching that of the 1972-1975 revision, to eliminate deadwood, redundancy, inconsistency, and to restore principle. Practicing what is preached would be one immediate benefit. As a second agenda item, law enforcement officials and judges at all levels need to be appointed rather than elected, so the public gets well-informed, career professional administrators instead of vote-pandering demagogues who use the justice system as a tool for votes.

We also need empirical research on the crime system as the lawmaking guide. Without the research guidance of leading scholars like NORVAL MORRIS, MICHAEL TONRY, FRANK ZIMRIG, and JAMES Q. WILSON, and statutory guidance from the Model Penal Code, the effort to strike a balance among social protection, expenditures, and politics becomes guesswork. The crime-fighting hyperbole of still more statutes, more police, more courts, more prisons, and ever-longer sentences teaches much about injustice to those who need to learn the opposite.

As the sociologist GEORGE SIMMEL once observed, a reciprocity exists between government and the citizenry regarding the observance of law (237). Government says to the citizenry, in effect, "These are the rules we expect you to follow. If you follow them, and they are fair, you have our assurance that they are the same rules that will be applied to your conduct." When government ruptures this bond of reciprocity, nothing is left on which to model the citizen's duty to observe the rules-or to prevent its judicial enforcers from apologizing for them.

Index :

1. Judge, Arizona Court of Appeals. J.D., Notre Dame, 1971; L.L.M., Virginia 1986; author, CRIMINAL LAW OF ARIZONA (1993), State Bar of Arizona 1993; Judge, Superior Court, Maricopa County 1979-1988; Judge, Arizona Court of Appeals, 1988 - present. The Author acknowledges the assistance of PETER O'CONNOR and MONSIHA CHIRAMAL on citation research and KATHY HARSHA on manuscript preparation.
2. THOMAS CARLYLE, SARTOR RESARTUS. ON HEROES AND HERO-WORSHIP AND THE HEROIC IN HISTORY (1921).
3. Compare the present version of ARS § 13-101 (West Supp. 2000) with former Arizona sentencing philosophy as articulated in Orme v. Rogers, 32 Ariz. 502, 260 P. 199 (1927). See also ARIZONA CRIMINAL CODE COMMISSION, ARIZONA REVISED CRIMINAL CODE (1975)
4. NATIONAL SYMPOSIUM ON SENTENCING : REPORT AND POLICY GUIDE, AMERICAN JUDICATURE SOC'Y 39-41 (1998).
5. A.R.S. § 13-101(6) (West Supp. 2000) lists "just and deserved punishment" as a public policy goal of this state's criminal law -a retributive concept addressing culpability on an implied individual basis.
6. MICHAEL TONRY, SENTENCING MATTERS 24 (1996). There are 476 prisoners per 100,000 United States residents, according to The Sentencing Project, a nonprofit prison research organization in Washington. See MARC MAUER, THE RACE TO INCARCERATE 36-40 (1994). That rate is six times that of Canada and Australia and five times that of any country in the European Union. See id.
7. See U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS BULLETIN: PRISONERS IN 1999 (2000) [hereinafter PRISONERS IN 1999]; Cassandra Burrell, Populations of Prisons, Jails Climb 6%, ARIZ. REPUBLIC, Jan. 19, 1998, at A3. Arizona's incarceration rate in 1982 was the twelfth highest in the United States. See U.S. Dep't of Justice, Bureau of Justice Statistics Bulletin: Prisoners at Midyear 1982, at 2 (1982). Arizona's incarceration rate has moved steadily upward over the past decade to the point that Arizona is now the eigth most incarceration-prone state. See ARIZONA DEPT. OF CORRECTIONS, ANNUAL REPORT 59 (1999) [hereinafter DOC ANNUAL REPORT].
8. See DOC ANNUAL REPORT, supra note 7, at 6-7, 59.
9. See TONRY, supra note6,at 137.
10. James Q. Wilson, Crime and Public Policy, in CRIME 489, 499 (James Q. Wilson & Joan Petersilia eds., 1995). As far back as 1790, mandatory penalties had been enacted for capital offenses. In 1956, Congress passed the Narcotic Control Act, creating mandatory penalties for a variety of drug offenses. By 1970, lawmakers had come to question the efficacy of such policies, believing them to be overly punitive and often circumvented by court officials. On the floor of the U. S. House of Representatives in 1970, then Representative George Bush proclaimed that the elimination of mandatory minimum penalties (except for professional criminals) "will result in better justice and more appropriate sentences." Such sentiments paved the way for federal legislation that repealed most mandatory drug sentences that year. See M. Mauer, Why Are Our Tough on Crime Policies So Popular ?, 11 STAN. L. AND POL'Y REV. 9, 10 (Winter 1999).
11. See DOC ANNUAL REPORT, supra note 7, at 41.
12. As of June, 2000, the Arizona Department of Corrections had custody of 2129 prisoners over the age of 50. See DOC ANNUAL REPORT, supra note 7, at 47.
13. ELLIOT CURRIE, CRIME AND PUNISHMENT IN AMERICA 75 (1998) ("aging out" of crime)
14. 1976 Ariz. Sess. Laws ch. III, §§ 1-12 (1976).
15. See Gary T. Lowenthal, Mandatory Sentencing Laws : Undermining the Effectiveness of Determinate Sentencing Reform, 81 CAL. L. REV. 61, 79-81 (1993) (to which this analysis is indebted); cf. 1976 Ariz. Sess. Laws ch. III, §§ 1-12.
16. See Lowenthal, supra note 15.
17. See id. at 83.
18. See id.
19. See 1982 Ariz. Sess Laws ch. 322, §1, as reflected in the present version of ARIZ. REV. STAT. ANN. § 13-604.02(A) (West Supp. 1997).
20. Lowenthal, supra note IS, at 83.
21. See id. at 95.
22. See id.
23. See id.
24. See infra discussion Part III.
25. See Lowenthal, supra note 15, at 82.
26. TONRY, supra note 6, at 161.
27. In State v. Barger, 167 Ariz. 563, 810 P.2d 191 (App. 1990), the Arizona Court of Appeals observed :

    Suffice it to say that today we express our concern that a junior officer in the executive branch of county government (deputy county attorney) is given great discretion and power to affect sentencing in a state court while denying to the state judicial officer who presides over that court any discretion in what has traditionally and inherently been a function of the court.

    Id. at 570, 810 P.2d at 198.
28. Id.
29. See R. Gerber, Culpability. Sentencing and Controversy in the New Criminal Code, ARIZ. BAR J., 11, 11-27 (Aug. 1978).
30. See U.S. Judge Refuses to Impose Sentence, ARIZ. REPUBLIC, Jan. 21, 2000, at A13 (describing how Judge Paul Magnuson refused to impose a mandatory 10-year prison sentence on a first-time drug offender).
31. TONRY, supra note 6, at 23.
32. See ARIZ. REV. STAT. ANN. § 13-1105 (West Supp. 1997) (requiring a sentence of death or life imprisonment for all first degree murders); State v. Cocio. 147 Ariz. 277, 709 P.2d 1336 (1985) (en banc). Cocio vividly illustrated the disparity in sentencing that can result from charge-based mandatory punishment when a defendant exercises his right to trial. Cocio's truck collided with a car driven by Rodriguez, killing a passenger in the Rodriguez vehicle. Id. at 277, 1338. Both Cocio and Rodriguez were charged with manslaughter and driving under the influence of alcohol. See id. The prosecution also charged both defendants with mandatory punishment allegations because the two vehicles qualified as "dangerous instruments." See id. Rodriquez entered into a plea agreement with the prosecution and was sentenced to two days in jail, a fine, and a year of probation. See Cocio v. Bramlett, 872 F.2d 889, 890 (9th Cir. 1989) (discussing these facts in the context of a denial of a habeas corpus petition made by Cocio). Cocio, however, rejected an identical plea bargain offer and was convicted. See id. Since he had committed a dangerous felony while on probation, Cocio received a mandatory life sentence with no possibility of parole for twenty-five years. See id. Ironically, the evidence suggested that Rodriguez was the more culpable of the two drivers. Yet Cocio, because of the mandatory sentencing regime, received a punishment vastly harsher than Rodriguez. in effect, Cocio received a life sentence for going to trial.
33. Judge Richard Posner, founder of the law and economics movement, writes : Every society softens the rigors of strict legalism There is no inconsistence in this. It is false that law is not law unless it banishes every human, mitigating, discretionary, or "feminine" characteristic it is because the strict enforcement of rules is intolerable ... That law is the art of governance by rules, not just an automated machinery of enforcement.
    RICHARD POSNER, LAW AND LITERATURE 109 (1998).
34. See DOC ANNUAL REPORT, supra note 7, at 7.
35. Panel an Research on Deterrent and Incapacitative Effects, Summary, in DETERRENCE AND INCAPACITATION : ESTIMATING THE EFFECTS OF CRIMINAL SANCTIONS ON CRIME RATES 3,7 (Alfred Blumstein et. al, eds., 1978).
36. Daniel Nagin, General Deterrence : A Review of the Empirical Evidence, in DETERRENCE AND INCAPACITATION : ESTIMATING THE EFFECTS OF CRIMINAL SANCTIONS ON CRIME RATES, supra note 35, at 8; see also TONRY, supra note 6, at 137.
37. TONRY, supra note 6, at 137 (citing UNDERSTANDING AND CONTROLLING VIOLENCE (Albert J. Reiss, Jr. & Jeffrey Roth cds., 1993)).
38. Alfred Blumstein, Prisons, in CRIME 47 (James Q. Wilson ed., 1994). See also TONRY, supra note 6, at 141. Criminologist Alfred Blumstein echoed these sentiments that drug laws do little to deter drug trafficking :

    [T]here is...no evidence that...[harsh drug law enforcement policies] have been at all successful. Of course, that result is not surprising. Anyone who is removed from the street is likely to be replaced by someone drawn from the inevitable queue of replacement dealers ready to join the industry. It may take some time for recruitment and training, but experience shows that replacement is easy and rapid.

    TONRY, supra note 6, at 141 (quoting Blumstein, supra note 38.)
39. MAUER, supra note 6, at 64 (quoting JACQUELINE COHEN, INCAPACITATING CRIMINALS : RECENT RESEARCH FINDINGS 3 (Dec. 1983)). In a major study of these policies at the federal level, the U. S. Sentencing Commission reported : "While mandatory minimum sentences may increase severity, the data suggest that uneven application may dramatically reduce certainty. The consequence of this bifurcated pattern is likely to thwart the deterrent value of mandatory minimums." U.S. SENTENCING COM'N, MANDATORY MINIMUM PENALTIES IN THE FEDERAL SYSTEM 5 (1991).
40. MAUER, supra note 6, at 64.
41. See B. Herbert, The Crime Fighter, NEW YORK TIMES, July 20, 2000, at A25 (citing a 2000 study by Jared Bernstein and Ellen Houston of the Economic Policy Institute, showing, inter alia, crime rates fall as unemployment falls).
42. See MAUER, supra note 6, at 82-92.
43. See id.
44. See id. at 81-92; see also Fox Butterfield, Effect of Prision Building on Crime Weighed, N.Y. TIMES, Sept. 28, 2000, at A10; Peter Elikann, Do more Jails Equal Less Crime?, NAT'L L.J., Sept. 25, 2000, at A20.
45. See The Sentencing Project Newsletter, May, 2000, at 1; see also MAUER, supra note 6, at 82-92. "An examination of unemployment, wages, and crime rates by region shows unemployment and crime rates falling together, and rising wages and crime rates moving apart." B. Herbert, The Crime Fighter, N.Y. TIMES, Aug. 20, 2000, at A27 (quoting J. Bernstein and E. Houston, RESEARCH FOR THE EcONOMIC POLICY INSTITUTE, June 2000).
46. James Q. Wilson, Drugs and Crime. in 13 CRIME AND JUSTICE : A REVIEW OF RESEARCH 521, 534 (1990).
47. Id.
48. See generally JOINT COMM. ON N.Y. DRUG LAW EVALUATION, THE NATION'S TOUGHEST DRUG LAW : EVALUATING THE NEW YORK EXPERIENCE (1978).
49. See id. at 18.
50. See id. at 2.
51. TONRY, supra note 6, at 141; see also JOINT COMM. ON N.Y. DRUG LAW EVALUATION, supra note 48. For current nonpartisan research, see generally JONATHAN P. CAULKINS ET.. AL., MANDATORY MINIMUM DRUG SENTENCES : THROWING AWAY THE KEY OR THE TAXPAYERS' MONEY? (Rand, 1997).
52. Behind Bars : Substance Abuse and American's Prison Population, The Nat'l Center on Addiction and Substance Abuse at Columbia University (1998).
53. Press Conference, Fed. News Service, Jan. 8, 1998, available in LEXIS News Library.
54. Id. Despite their popularity with politicians and the public, most professionals who work with the criminal justice system oppose mandatory minimum sentences. In 1993, for example, a Gallup survey of 350 state and 49 federal judges found only 8 percent in favor, and 90 percent opposed to federal mandatory minimums for drug offenses. Similarly, both the Judicial Conference of the United States, the congressionally appointed Federal Court Study Committee, and the American Bar Association have called for a repeal of mandatory minimums. To date, however, Congress has taken no action. See A National Symposium on Sentencing : Report and Policy Guide, Am. Judicature Society, State Justice Institute, Chicago, 1998.
55. Behind Bars : Substance Abuse and America's Prison Population, Nat'l Center on Addiction and Substance Abuse, Columbia U., Jan. 1998 (quote from NY TIMES, Jan.8,200I,at A10).
56. MAUER, supra note 6, at 44. The most recent book-length research on the effect of mandatory sentences on crime rates shows that at least 75% of the costs and effects of such sentences are wasted. See THE CRIME DROP IN AMERICA 143-50 (Alfred Blumstein et al. eds., 2000)
57. TONRY, supra note 6,at 163.
58. W. BROWNSBERGER, MANDA TORY DRUG SENTENCES 5 (1997).
59. See K. STITH & J. CABRANES, FEAR OF JUDGING, 38 (1999); see also TONRY, supra note 6, at 24 (stating that "the law and order politics of the past two decades" has achieved only the effect of producing "a penal system of a severity unmatched in the Western world").
60. See Lowenthal, supra note 15, at 85; see also supra note 22 and accompanying text.
61. See TONRY, supra note 6, at 37; see also A. Alschuler, An Exchange of Concessions, 142 NEW L.J. 937, 938 (1992). "The lying to the court that is inevitable with the frequent use of such bargaining is the dirty little secret in the prosecution of...criminal cases." STITH & CABRANES, supra note 59, at 104 (quoting T. Garoppolo, federal probation officer).
62. See TONRY, supra note 6, at 37. A major problem of extremely harsh sentence enhancements is that often they are not enforced; the more severe the enhancement, the more likely that courtroom players will ignore or circumvent it. Moreover, when the weight given in sentencing to enhancement factors is reasonably proportional to the weight of all other circumstances taken into account in guideline or presumptive sentencing schemes, legislative policy is more likely to be uniformly followed. Thus, by reducing the severity of mandatory punishment provisions, a legislature would take a major step toward achieving consistency and proportionality in sentencing. See Lowenthal, supra note 15, at 123.
63. See 18 U.S.C. § 3E.1.1.1 (2000) (containing the federal sentencing guidelines).
64. See ARIZ. REV. STAT. ANN. § 13-1105(A)(2) (West Supp. 1997).
65. See MODEL PENAL CODE § 210.2, cmt. 6, at 30-31 (1980) (citing modem trend away from traditional rule).
66. See id.
67. See id.
68. See ARIZ. REV. STAT. ANN. § 13-1105(A)(2),(B) (West Supp. 1997). ARIz. REV. STAT. ANN. § 13-1105(A)(2), (B) reads :
    A. A person commits first degree murder if :
    ...
    2. Acting either alone or with one or more other persons such person commits or attempts to commit sexual conduct with a minor under § 13 - 1405, sexual assault under § 13-1406, molestation of a child under § 13 - 1410, marijuana offenses under § 13 - 3405, subsection A,¶4, dangerous drug offense under § 13 - 3407, subsection A, ¶7, narcotics offenses under § 13-3408, subsection A, ¶7 that equal or exceed the statutory threshold amount for each offense or combination of offenses, involving or using minors in drug offenses under § 13 - 3409, kidnapping under § 13 - 3404, burglary under § 13 - 1506, 13 - 1507 or § 13 - 1508, arson under § 13 - 1703 or 13 - 1704, robbery under §§ 13 - 1902, 24 - 1093 or 13 - 1904, escape under §§ 13 - 2503 or 13 - 2504, child abuse under § 13 - 3623, subsection B, paragraph I, or unlawful flight from a pursuing law enforcement vehicle under § 28 - 622.01.and in the course of and in furtherance of such offense or immediate flight from such offense, such person or another person causes the death of any person.
    ...
    B. Homicide, as defined in subsection A, paragraph 2 of this section, requires no specific mental state other than what is required for the commission of any of the enumerated felonies.
69. See ARIZ. REV. STAT. ANN. § 13-1105(A)(2), (B).
70. See MODEL PENAL CODE 210.2, cmt. 6, at 30-31 (1980).
71. See id.
72. State v. Lopez, 173 Ariz. 552, 554-56, 845 P.2d 478, 480-82 (Ct. App. 1992).
73. See. e.g., ARIZ. REV. STAT. ANN. § 13-3408 (narcotics); ARIZ. REV. STAT. ANN. § 13-1506 (burglary); ARIZ. REV. STAT. ANN. § 13- 1105(A)(2).
74. See State v. Edwards, 136 Ariz. 177, 186,665 P.2d 59, 68 (1983) (en banc) (applying the felony murder law to a case in which the victim had a heart attack during the robbery).
75. See State v. Medina, 172 Ariz. 287, 836 P.2d 997 (Ct. App. 1992) (discussing, in general, felony murder for narcotics transactions); see a/so ARIZ. REV. STAT. ANN. §13 - 3623 which, as amended in 2000, extends felony murder to deaths during transportation of drugs.
76. In State v. Dixon, 109 Ariz. 441,443,511 P.2d 623, 625 (1973), the Arizona Supreme Court held that a heroin sale was too far removed for felony murder when the buyer overdosed, but the Legislature reversed this holding by enacting ARIZ. REV. STAT. ANN. § 13-1105(8).
77. MODEL PENAL CODE § 210.1, cmt. 6, at 30 (1980).
78. See, e.g., WIS. STAT. ANN. 940.03 (1996); MONT. CODE ANN. §45 - 5-102 (1995).
79. See ARIZ. REV. STAT. ANN. § 13 - 1105(A)(I) (stating that the traditional form of the offense requires "premeditation."); see also ARIZ. REV. STAT. ANN. § 13-1105(A)(2).
80. See ARIZ. REV. STAT. ANN. § 13 - 1105(A)(2) (West Supp. 1997) (felony murder).
81. See ARIZ. REV. STAT. ANN. §§ 13 - 1102 and 13 - 1103 (West 1989).
82. Compare ARIZ. REV. STAT. ANN. § 13 - 1105(A) with ARIZ. REV. STAT. ANN. § 13 - 1102 (premeditation vs. negligence).
83. See MODEL PENAL CODE § 210.2, cmt. 6, at 37.
84. See. e.g., Transamerica Ins. Group v. Meere, 143 Ariz. 351, 357, 694 P.2d 181,187 (1984) (discussing the various mental states recognized in the law of torts); see also Felony Murder : A Tort Law Reconceptualization, 99 HARV. L. REV. 1918, 1924-25 (1986).
85. See ARIZ. REV. STAT. ANN. § 13 - 1105(B) (excluding the felon's mental state from consideration).
86. See England's Homicide Act of 1957,5 & Eliz. 2, Ch. 11, § 1 (abolishing felony murder in Great Britain).
87. See id.
88. See ARIZ. REV. STAT. ANN. §§ 13-1102 and -1103.
89. See Prince in Medicinal Pot Debate, ARIZ. REPUBLIC, Dec. 25,1998, at A14.
90. DAN BAUM, SMOKE AND MIRRORS : THE WAR ON DRUGS AND THE POLITICS OF FAILURE 332,338 (1996).
91. See Hendrick Hertzberg, Passages, THE NEW YORKER, Sept. 25, 2000, at 25- 26.
92. See Mike McCloy, Health Costs Earn Inmate Ticket Home, ARIZ. REPUBLIC, May 24, 2000, at BI.
93. See THE DRUG LEGALIZATION DEBATE 77 (1999) (J. Inciardi, ed.).
94. See L. Grinspoon et. al., Marijuana As Medicine : A Plea for Reconsideration, 273 J. AM. MED. ASS'N 1875, 1876 (1996).
95. See. e.g., M. SCHUCHARD, PARENTS, PEERS, AND POT (1979) (finding marijuana causes panic, impairs the immune system, alters brain hemispheres, changes sex hormones, causes male breasts, etc.).
96. See HERBERT PACKER, THE LIMITS OF THE CRIMINAL SANCTION 265-72 ( 1968).
97. See L. ZIMMER & J. MORGAN, MARIJUANA MYTHS, MARIJUANA FACTS : A REVIEW OF THE SCIENTIFIC EVIDENCE 59-60 (1997).
98. See id.
99. See id.
100. See id.
101. In 1999, alcohol was involved in 150,000 deaths; 450,000 people died from smoking tobacco; 100,000 died from legal prescription drugs; no one died from marijuana use. See N. Shute, Science and Ideas : Public Health, U.S. NEWS AND WORLD REPORT, Sept. 18, 2000; see also ANNUAL REPORT, NATIONAL INSTITUTE ON ALCOHOL ABUSE AND ALCOHOLISM (2000).
102. See Ellen Goodman, Anti-Marijuana Hysteria Sends Stupid Message, THE BOSTON GLOBE, Dec. 18, 1996 at B10.
103. See supra note 95.
104. See id.
105. See. e.g., SCHUCHARD, supra note 95, at 23.
106. See 70% of Arizonans Support Medical Marijuana, ARIZ. REPUBLIC, Jan. 15, 2000, at B4.
123. See BAUM, supra note 90, at 298 (quoting former Drug Czar William Bennett).
124. See MAUER, supra note 6, at 150-53.
125. See id. at 191.
126. Nearly twice as many black people are being imprisoned for drug offenses than are whites, even though there are five times more white drug users than black ones. See Human Rights Watch, Race Analysis Cites Disparity in Sentencing. N.Y. TIMES, June 8,2000, at A16.
127. See generally Eric Blumenson & Eva Nilsen, Policy for Profit : The Drug War's Hidden Economic Agenda, 65 U. CHI. L. REV. 35 (1998).
128. See M. GRAY, DRUG CRAZY 153-93 (2000) (describing the European experience).
129. See N. Morris, Teenage Violence and Drug Use, 31 VAL. U. L. REV. 547, 549 (1997).
130. See Alcohol Arrests Soar on College Campuses, ARIZ. REPUBLIC, June 4, 2000, at A18 ("Alcohol abuse is the No. 1 problem on every college campus in this country.").
131. Excessive drinking causes more than 150,000 deaths a year in the United States. See V. KAPPELER ET AL., THE MYTHOLOGY OF CRIME AND CRIMINAL JUSTICE, (2d ed., 1996). According to an article in the December 1996 Scientific American, nearly one-fourth of the deaths are attributable to drunken driving. One in five of the deaths results from alcohol-related homicide or suicide costing us $167 billion annually. See SCI., Dec. 1996, as summarized in the ARIZ. REPUBLIC, Mar. 15,2000, at E1.
132. See J. Califano, A Punishment-Only Prison Policy, AMERICA, Feb. 21, 1998, at 3.
133. See supra note 130. A 1999 survey of 15,349 teenagers in grades nine through 12 found that half had tried alcohol, 35 percent had smoked cigarettes, 27 percent had smoked marijuana and four percent had tried cocaine in the month before the survey. One third of the students had five or more drinks of alcohol at one sitting, according to the confidential survey conducted by the Centers for Disease Control and Prevention, that is, a third of these students are regularly "smashed." See K. Zemike, Study Finds Teenage Drug Use higher in U.S. Than in Europe, N.Y. TIMES, Feb. 21, 2001, at A10.
134. BAUM. supra note 90, at 260-72 (attributing this to Bush Drug Czar William Bennett).
135. 78.2% of the 1999 admittees to the Arizona Department of Corrections were non-violent. See DOC ANNUAL REPORT, supra note 7, at 50.
136. In a second study, RAND researchers examined the relative costs and benefits in drug policy of expanding the use of longer sentences for drug offenders compared to providing more drug treatment services. Their conclusion was that treatment reduced drug consumption eight times more than longer prison terms and reduced crime fifteen times as much. See JONATHAN P. CAULKINS ET. AL., RAND, MANDATORY MINIMUM DRUG SENTENCES : THROWING AWAY THE KEY OR THE TAXPAYERS' MONEY? 7 (1997).
137. See id. at 8-9.
138. The results are reported in the Lee Bowman & Scripps Howard, Federal Programs Aid Addicts, Study Finds Help Reduce Drug Use, Arrests, ARIZ. REPUBLIC, Sept. 21, 1998, at A20. Similar data are presented in DRUG TREATMENT INSTEAD OF AND DURING IMPRISONMENT, SAN FRANCISCO MEDICINE 17-18 (Feb. 2000). The research, conducted for the Substance Abuse and Mental Health Administration by outside experts, found that clients who took part in substance abuse treatment programs had reduced drug use by an average of 50 percent a year after they left treatment. See Bowman & Howard, supra, at A20.
139. See Bauman & Howard, supra note 138, at A20.
140. See id.
141. See id.
142. See id.
143. See MASSING, supra note 118, at 271-75. Massing advocates Jaffe's "code," a set of principles that sum up his approach to drug use :

     chronic drug users are at the heart of the nation's drug problem; a diverse array of services is required; Government must assure their availability and efficacy; law enforcement is an adjunct to rehabilitation and, always, reducing demand for drugs through education and treatment must take precedence over law enforcement efforts to reduce the supply of drugs.

     Id. at 271. Massing says the Nixon administration, following the Jaffe prescription, managed to bring a "serious heroin epidemic" under control "in a few short years." Id. at 271-75; see also In Drug War, Treatment Is Back, CHRISTIAN SCI. MONITOR, July 14,2000 at 1.
144. See KAPPELER, supra note 131,at 184-85.
145. See Proposition 200, adopted November 1996 (codified as A.R.S. § 13 - 901.01 (1999)).
146. See generally SUPREME COURT OF ARIZONA, DRUG TREATMENT AND EDUCATION FUND IMPLEMENTATION YEAR END REPORT, FISCAL YEAR 1997-1998 (Mar. 1999).
147. See id. at 2-3.
148. See supra note 145.
149. See A.R.S. §§ 13-901.01(D) and 13-901.01.
150. Compare ARIZ. REV. STAT. ANN. § 13 - 1102 (negligent homicide), a class 4 offense; ARIZ. REV. STAT. ANN. § 13-1204 (aggravated assault, a class 5 or 6 offense); and ARIZ. REV. STAT. ANN. § 13 - 1903 (aggravated robbery, a class 3 offense), with ARIZ. REV. STAT. ANN. § 13 - 3401.01 (possession of precursor chemicals, a class 2 offense); ARIZ. REV. STAT. ANN. § 13 - 3405 (possession of a pound of marijuana, a class 2 offense); ARIZ. REV. STAT. ANN. § 13 - 3411 (possession of marijuana within 300 feet of a school, a class 2 offense); and ARIZ. REV. STAT. ANN. § 13 - 3410 ("serious drug offender," life imprisonment).
151. Drug convictions are disproportionately of minorities. See Human Rights Watch, supra note 126. Prisons enable inmates to find greater access to drugs than the streets. Prisons Are a Hotbed of Drug Use. Survey Finds, Los ANGELES TIMES, Aug. 25, 2000, at A3, A13 ("88% of inmates found it easy to obtain their drugs in prison, according to a Phoenix House National Survey.").
152. See KAPPELER, supra note 131, at 170.
153. See id.
154. Texas, the nation's execution leader, executed more than three dozen people in 2000. See S. Rimer, Life After Death Row, N. Y. TIMES MAG., Dec. 10, 2000, at 100.
155. Massachusetts Governor Michael Dukakis and New York Governor Mario Cuomo lost their recent respective presidential and gubernatorial elections in large part due to their opposition to the death penalty. See V. KAPPELER ET. AL., THE MYTHOLOGY OF CRIME AND CRIMINAL JUSTICE 273 (3d ed. 2000).
156. See M. FOUCAULT, DISCIPLINE AND PUNISH: THE BIRTH OF THE PRISON 48-49 (1979).
157. See id.
158. See id. at 60-61.
159. See id.
160. H. BEDAU, THE DEATH PENALTY IN AMERICA 315-16 (3d ed. 1982).
161. Brutalization - encouraging homicide rather than deterring it - has been the effect of this state's death penalty. See E. Thomson, Deterrence vs. Brutalization, 1 HOMICIDE STUDIES 110-28 (1997). Good economic times is a far greater deterrent than the death penalty. Data compiled by Richard Fowles of the University of Utah show that the national homicide rate increases 5.6 percent for every one percent increase in the unemployment rate, suggesting that employment is a far greater deterrent to homicide than is the death penalty. In California homicides increased twice as much during execution years. See IN BRIEF, CENTER ON JUVENILE AND CRIMINAL JUSTICE I (Apr. 1995).
162. See Marc Lacey, Reno Troubled by Death Penalty Statistics, N.Y. TIMES, Sept. 22, 2000, at A1 (commenting on Attorney General Janet Reno's reaction to data compiled by the Justice Department showing that three- fourths of defendants considered for the death penalty were minorities).
163. See H. Bedau & M. Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 STANFORD L. REv. 21-179 (1987) (listing 23 innocent persons executed).
164. See Rimer, supra note 154 (reporting that 88 people were released because of evidence of their innocence). Since that time, another person has been freed.
165. See Mark Hansen, Holdouts in the Global Village, A.B.A. J., June 2000, at 47.
166. See id.
167. See id.
168. See id.
169. See id.
170. See id.
171. See id.
172. See id.
173. See id.
174. See id.
175. See id.; see also State v. Soto-Fong, 187 Ariz. 186,209-10,928 P.2d 610, 633-34 (1996).
176. See Hansen, supra note 165, at 47.
177. See id.
178. See id.
179. See id.
180. C. 0' Driscoll, The Execution of Foreign Nationals in Arizona, 32 ARIZ. ST. L.J. 323 (2000).
181. See Vienna Convention on Consular Relations (Fed. Rep. of Germany v. United States), 1999 International Court of Justice 104, Order of Mar. 3 and Jan. 13, 2000.
182. See generally Comment, Cara O'Driscoll, The Execution of Foreign Nationals in Arizona : Violations of the Vienna Convention on Consular Relations, 32 ARIZ. STATE L.J. 323 (2000).
183. See James S. Liebman et.. al, A Broken System : Death Penalty Error, N.Y. TIMES, June 12, 2000 at A1. The report indicates that of 247 Arizona capital cases from 1973 to 1995,82 were reversed by direct appeal in the state Supreme Court and 12 others in post-conviction relief proceedings. Federal courts reversed nine, meaning that 103 cases or 42% were reversed. Id.
184. See id.
185. See id.
186. See id.
187. See M. Hansen, Move for Moratorium, A.B.A. J., Dec. 2000, 92.
188. U.S. Prominent on List of Human Rights Abuses, THE ARIZ. REPUBUC, June 15,2000, at A21. The U. S. also was roundly criticized by English lawyers and Solicitor General Ross Cranston at the ABA convention in England in July, 2000, for its "basic denial of human rights." See Joan Biskupic, British Lawyers Blast USA For Maintaining Death Penalty Discourse at American Bar Association Conference Underscores Other Nations' Disdain For the Practice, USA TODAY, July 20, 2000, at 7 A.
189. See T. Rosenberg, The Deadliest D.A., N.Y. TIMES MAG., July 16, 1995, at 21-52; see also Furman, 408 U.S. 238 (mandating standards of uniformity for capital punishment which this magazine article shows to be non-existent in prosecutors' offices).
190. Justice John Paul Stevens proclaimed to the Opening Assembly at the American Bar Association Annual Meeting in 1996 :

     Persons who undertake the task of administering justice impartially should not be required - indeed should not be permitted ... to curry the favor of voters by making predictions or promises about how they will decide cases before they have heard any evidence or argument ... A campaign promise to be "tough on crime" or to "enforce the death penalty" is evidence of bias that should disqualify [the judge] from sitting in criminal cases.

     Justice Blasts Election of Judges, TAMPA TRIB., Aug. 4,1996, at 16 (emphasis added).
191. Callins v. Collings, 511 U.S. 127 (1974) (Blackman, J., dissenting from denial of certiorari).
192. See Newsletter, The Sentencing Project, Dec. 2000, at 1.
193. See id.
194. See The Sentencing Project Newsletter, May, 2000, at 1.
195. See id.; see also MAUER, supra note 6, at 82 (increasing prison populations coincide with both increase and decrease in crime).
196. See DOC ANNUAL REPORT, supra note 7, at 6.
197. See id.
198. See id.
199. See id.
200. See id. at 7.
201. DOC ANNUAL REPORT, supra note 7, at 6-7.
202. See id. at 7.
203. Over 40% of the increase in state prison populations since 1980 is due to an increase in the prisoners convicted of violent offenses. See U.S. Dept. of Justice, Bureau of Justice Statistics (visited May 4, 2000) http://www.ojp.usdoj.gov/bjs/giance/corryp.htm. This means that the increase in non-violent offenders constitutes 60% of the total increase. See also E. Schlosser, The Prison-Industrial Complex, THE ATLANTIC MONTHLY, 51-54 (Dec. 1998).
204. See DOC ANNUAL REPORT,supra note 7, at 50.
205. See id.
206. See id. at 46.
207. See id. (depicting dramatic rise in the number of drug offense incarcerations in state prisons since 1980).
208. FRANKLIN E. ZIMRING & GORDON HAWKINS, CRIME IS NOT THE PROBLEM : LETHAL VIOLENCE IN AMERICA 180-81 (1997).
209. See id. at 181.
210. See id.
211. See id.
212. See id.
213. See MAUER, supra note 6, at 164; see also Sheryl Stolberg, Behind Bars, New Effort to Care for the Dying, N.Y. TIMES, Apr. 1,2001, at A1.
214. See DOC ANNUAL REPORT, supra note 7, at 47.
215. See MAUER, supra note 6, at 164.
216. This is particularly true because the maintenance cost of inmates aged 50 years or more increases steadily as age takes its toll on health. Conservative analyst James Q. Wilson points out that "very large increases in the prison population can produce only modest reductions in crime rates." Policies that indiscriminately lengthen prison sentences beyond the ten-year period that constitutes the average career of the violent offender will logically produce "diminishing marginal returns." (Reinforcing this point is the fact that few except pathologically violent offenders commit violent crimes after age 35. Consequently, the imposition of life or very long sentences on people in their twenties or thirties is not an efficient means of preventing violence through incapacitation.) Further, Piehl and Dilulio argue that while "prison pays" for most incarcerated criminals, it "does not pay" for the nonviolent drug offenders who constitute 10 to 25 percent of the prison population. See A NATIONAL SYMPOSIUM ON SENTENCING : REP. AND POL'Y GUIDE, AM. JUDICATURE SOC'Y, STATE JUSTICE INSTITUTE 42 (1998).
217. See William Herman, Ex Cons Lacking Homes, Money, ARIZ. REPUBLIC, June 30, 2000, at A1.
218. Compare ARIZ. REV. STAT. ANN. § 13-1704 (West 1989) with § 13 - 1705 (West 1989).
219. ELLIOT CURRIE, CRIME AND PUNISHMENT IN AMERICA 43-44 (1998).
220. As one of many examples, ARIZ. REv. STAT. ANN. § 13-3410 (West Supp. 2000) imposes a penalty of life imprisonment on a serious drug offender, matching or exceeding the sentence - and cost - for first-degree murder. Id.
221. See generally ROBERT M. COVER, JUSTICE ACCUSED : ANTISLAVERY AND THE JUDICIAL PROCESS (1975).
222. See id.
223. See id.
224. See id. at 303.
225. See id.
226. Former attorney general Grant Woods has said "Arizona should seriously consider abolishing the Legislature." Chris Moeser, Initiatives Crowd November Ballot Direct Democracy Thrives, ARIZ. REPUBLIC, July 5, 2000, at A1.
227. See. e.g., R. Gerber, Arizona's Criminal Code Revision : 20 Years Later, 40 ARIZ. L. REV. 143 (1998) (ignoring Model Penal Code and undoing the revision of 1978).
228. ZIMRING & HAWKINS, supra note 208, at 180-83.
229. Id.; see also MODEL PENAL CODE, FOREWARD, PART I, §§ 1.01 to 2.13 at xi. (1985).
230. See HERBERT PACKER, THE LIMITS OF THE CRIMINAL SANCTION 272 (1968).
231. See ARIZ. REV. STAT. ANN. § 13-1105(A)(2).
232. See A