Any institution is a distillation of the dominant values of the society; our legal arrangements are no exceptions. Just as with our educational and health care systems our laws and their application favor the wealthy and powerful. When a tornado passes through town, who is most at risk, the people in the trailer park or those living in the big houses? When a recession hits, who suffers the most? It is impossible to live with such inequities indefinitely. Sooner or later the disparity in human suffering either sparks collective outrage or results in the numbing of our critical faculties and betrayal of our deepest values.

Our high incarceration rate indicates who and what we are afraid of. Apart from people who commit acts that have always been considered crimes: murder, theft, robbery, etc., we have filled our jails with those who pose little threat to the rest of us. In 2002, 54.7 percent of federal prisoners were incarcerated for drug crimes. Our attempts to control the flow and consumption of illegal substances has been a colossal failure that has served mainly to increase the price of drugs, enrich some of the most contemptible people in society, provoke a culture of death and violence in our inner cities, and swell our prison population without materially reducing the consumption of drugs or confronting the issues of addiction that drives such behavior. It is as if we learned nothing from our 14-year experience with the prohibition of alcohol, which is now freely available, relatively inexpensive, and, while it destroys many lives, is not the cause of widespread crime. We are somehow able to manage the millions of people who become addicted without throwing them in jail or otherwise declaring war on a common human craving. We all also benefit from the taxes people pay to drink.
What we choose to punish people for is a good indication of what we fear. Apart from the prohibitions contained in the Ten Commandments the complexity of modern society has required the punishment of offenses apparently unanticipated by God when he handed the tablets to Moses, notably sex offenses, including rape, and drug crimes. It is an interesting commentary on our fears that we imprison people for the misuse of "controlled substances" that are consumed for the sole reason that they make people feel better, albeit temporarily. In order to live peaceably with each other we have decided that certain human appetites must be controlled by the society. If, as in the case of drugs, this proves impossible, our response is to redouble our efforts. Imagine if all the money we spend interdicting the commercial flow of illegal substances and punishing those who use and sell them were turned to other purposes, substance abuse treatment to start with. (This is the same line of thinking that has gained so little traction when applied to our foreign wars.)

And so we suffer twice: the broken lives and withered hopes inflicted by and upon the addicted in their relentless pursuit of the evanescent pleasure that substances produce AND the suffering we as a society exact on those who use and traffic in these substances. We spend billions and distract law enforcement from other crimes even as it becomes apparent that this is a war without end and without the prospect of victory. As with most of our wars, there are those who profit. The armed bureaucracies, the builders of jails, the makers of surveillance equipment grow rich as do the successful perpetrators of the crimes that we have created. The deeply moralistic streak within the society that yearns to prohibit "motivated behaviors," notably those driven by drugs and sex, becomes enshrined in our legal codes even as 17 percent of us die from obesity-related disorders and 20 percent of us still smoke. Drug prohibitions reflect irrational behavior that is not only ineffective but manifests the fear that somewhere, somehow, someone is having a better time than we are. We all dread the forbidden appetites within ourselves that periodically burst into view. Yet we no longer punish infidelity, which has come to be seen as a destructive behavior that ruins lives, yet is, in most cases, forgivably human. (If we prosecuted people for hypocrisy, think of the prisons we would need.) Would that we could be as tolerant and helpful with our other failed attempts to suppress our deepest, desires. There is enough suffering to go around without criminalizing our frequent confusion about the difference between pleasure and happiness. The legal system is a blunt instrument with which to make this distinction.