This drug war is getting kind of expensive.

When it comes to health, safety, and environmental regulations, conservatives like President George Bush are acutely attuned to the danger of unforeseen harmful consequences, of costs outweighing benefits.

But little is heard these days about the non-economic costs of mobilizing ever more government regulation for Drug War III, the Bush sequel to the wars declared by Presidents Richard Nixon and Ronald Reagan.

Among these costs are the incipient wreckage of the federal court system, the dismantling of the Sixth Amendment right to counsel, the decline of the presumption of innocence, the demise of the Fourth Amendment, the dilution of property rights, the blighting of entire lives for youthful mistakes, the litmus-testing of public officials, and the entrenchment of the escapist fantasy that such police-state methods can cure our national maladies.

The federal court system is already so overwhelmed by drug cases that it is hard-pressed to discharge its traditional responsibilities of protecting civil rights and civil liberties, resolving complex antitrust disputes, and the like.

Morale in the federal judiciary is low and sinking lower, in part because many judges now spend more than half their time processing routine drug busts. The number of drug cases filed in federal District Courts jumped 270 percent from 1980 to 1989. In each of the last two years, the number rose more than 15 percent. This tidal wave is swamping not only the courts but public defenders, prisons, and probation offices as well.

It will get worse. At the urging of the Reagan and Bush administrations, Congress has increased the number of assistant U.S. attorneys by more than 50 percent in a little over a year, mainly to throw new bodies into the drug war.

Once this wave of prosecutors is geared up, we will need more judges to hear the surge of new cases. And more defense lawyers to sign plea bargains and handle the occasional trial. (There won’t be much time for trials.)

Before long the judiciary could become just another bureaucracy, with thousands of judges and magistrates processing dreary drug caseloads likely to attract only hacks and drones to the bench.

Who Will Defend?

Who will represent all those drug defendants? Not many good private lawyers. The government has given them reason to avoid criminal-defense work, by instituting a regime of fee forfeitures that makes it hazardous to take on any client who may be convicted; attorney fees can then be deemed ill-gotten gains and taken by the government.

The innocent and guilty alike will be relegated to undercompensated court-appointed lawyers or public defenders, people willing to mass-process drug cases for less than they could make as bartenders.

The presumption of innocence is undermined by the increasing pressure to clear clogged dockets through plea bargaining, pressure that typically takes the form of prosecutors and judges implicitly threatening even innocent defendants who insist on a trial with heavy penalties if the jury disbelieves them. And in cases involving drug kingpins thought to be dangerous, a powerful aura of guilt is conveyed by increasingly obtrusive courtroom security.

The old Mafia dons did not knock off judges, jurors, or prosecutors. But the cocaine cowboys who terrorize Colombia are a different breed. So may be their U.S. partners. Hence the trial of alleged D.C. drug kingpin Rayful Edmond III features a wall of bulletproof glass, to ensure spectators do not gun down the judge and jury.

It is anyone’s guess whether the jury will be more likely to convict or acquit because of this strong message that the defendants are dangerous criminals. But bulletproof glass sure could distract a juror’s attention from the evidence. And the willingness to blow a hole in the presumption of innocence to guarantee courtroom security will spill over on defendants who are not dangerous at all.

The Fourth Amendment command that searches and seizures be undertaken only on the basis of warrants supported by probable cause has been riddled by drug-war grapeshot. There is the car-search exception, the drug-courier profile exception, the school-locker exception, the l-saw-a-bulge-in-his-pocket exception, the helicopter-over-the-backyard-marijuana-patch exception, and so on. Now we also have the bodily-fluids exception, allowing mandatory drug-testing of some government workers not even suspected of illegal activity.

The drug war is taking its toll on property rights, too, through use of draconian forfeiture laws. Talk to the Vermont maple syrup farmer, his wife, and five children whose home and 49 acres were seized in September by federal marshals; the man had pleaded guilty to growing a few marijuana plants, apparently for personal use.

The drug-war mind-set has little room for tempering justice with mercy. Rigid mandatory minimum sentencing laws are forcing some judges-who bitterly complain-to impose prison terms of as long as 10 years without parole on bit players in drug conspiracies, first offenders unlikely to become career criminals.

These complaints might prompt a drug warrior to ask. "So what would you do, wise guy? Surrender?"

Consider a speech given 19 years ago by one of the toughest prosecutors in the land: "if we are really serious about organized crime." he said, we should understand how it feeds on its illegal monopoly in "so-called consensual crimes such as gambling, narcotics, and prostitution." and we should "determine whether they, like alcohol, should be legalized under appropriate controls."

That was U.S. Attorney Richard Thornburgh, now the attorney general and field marshal in the drug war.

Selective Legalization

Since the 1970 speech, we have expended vast resources to fight drugs to little avail; now the administration seems prepared to override every constitutional right save the right to bear arms. But little systematic thought has apparently been devoted by top officials to the alternative of selective legalization. The whole idea is viewed as political poison.

Departing public office, however, seems to have a liberating influence on the thought processes of some conservatives. Former Secretary of State George Shultz recently called for consideration of "forms of controlled legalization of drugs," to "wipe out the criminal incentives" that have, he said, only been enhanced by warring on drugs with criminal sanctions.

Wholesale legalization-especially of crack cocaine, which is both lethally addictive and productive of violent behavior-might do more harm than good. But legalization need not be an all-or-nothing thing.

Consider the case of marijuana. In the world of the Bush drug warriors, it is the moral equivalent of crack. That’s why we have helicopters hovering over residential neighborhoods in search of backyard pot patches.

Yet in every respect save one, marijuana resembles liquor a lot more than it does crack. It is no more intoxicating than alcohol no more addictive no more likely provoke anti-social behavior, and no more destructive of health. Marijuana is more like crack only in that both are illegal.

What does the law teach our children when it tells them with equal firmness that the abyss awaits all who use either drug? Their parents smoked pot in college with no great harm, but crack could kill them. Some children will be smart enough to figure out the difference. But the law teaches them all that if they can get away with smoking marijuana, why not give crack a try?