(concurring).
A plea bargain disposed of several hundred criminal offenses committed by Jef-fries. This resulted from the grant of “use immunity,” by the South Dakota Attorney General’s office, on all drug involvement except a Class II misdemeanor charge of possession of marijuana. These offenses were committed in the presence of Pennington County prosecutors. Jeffries was also a prosecutor. From December of 1984 to the late fall of 1987, Jeffries used cocaine on 15 separate occasions. He admits to using marijuana between December, 1984, and December, 1989. During this 5 year period, he used marijuana between 50 to 100 times per year.* A drug investigation by the Attorney General’s office flushed out other prosecutors in Pennington County using drugs and Jeffries cooperated in exposing their criminality. Jef-fries entered an alcohol (he extensively used alcohol, also) and drug treatment center at Hazeldon, near Minneapolis, Minnesota on April 8, 1990, and remained there for 30 days. In July and August of 1990, Jeffries had treatment at Yankton, South Dakota. It strikes this writer that said counseling, for the habits Jeffries had, was a short period of time. Jeffries, per this record, had sought assistance for his drug abuse problems at the Rapid City Hospital in March of 1990. This case was argued before this Court on December 4, 1991. Notwithstanding the above drug usage, and during a time when Jeffries was prosecuting drug cases, a host of witnesses came forward to express that his conduct in the trial court was “appropriate,” “professional” and he was “well prepared.” No one suspected, so the testimony reflects, that while he was prosecuting cases (approximately 50 jury trials, as an example), he was using drugs or alcohol. But this the record shows: Jeffries, himself, admits to this heavy use and while he prosecuted literally hundreds of drug cases. A clear preponderance of the testimony establishes very severe violations of several Canons of Ethics. In re Goodrich, 78 S.D. 8, 98 N.W.2d 125 (1959). There is simply no doubt concerning Jeffries’s conduct. In re Jaquith, 79 S.D. 677, 117 N.W.2d 97 (1962). A detective and a Captain on the Rapid City Police force both testified that Jeffries was “a vigorous prosecutor.” Considering his personal use of drugs, this duplicity hardly militates in his favor. Jeffries was not applying “Equal Justice Under the Law.”
When an appellate judge, far removed from the factual scenario and the personalities involved, reviews this ethical debacle, an objectivity surfaces which is not prevalent in the trial arena. A different perspective attends. Testimony of witnesses, who are friends, and opinions of his fellow attorneys, who shared his legal life, will not be enshrined in a law book on a wall. This case will be. It will join those cold and lifeless bound volumes in the Supreme Court library of this state, other jurisdictions, and law offices throughout this land. There, as the years roll on, it shall be judged in a vacuum of sterile review, not by the heat of the moment.
We should not mitigate our sanction due to the plea bargain. Jeffries’ plea bargain should not be permitted to distort these disciplinary proceedings. In point of law, the Code of Professional Responsibility does not mandate a conviction for a criminal act; nay, it requires only the commission of such an act.
Was Jeffries’ performance, in prosecuting drug cases, affected by his heavy reliance of drugs? Some witnesses below would suggest not. However, in his advocacy to establish that he is now “recovered,” he advised the Disciplinary Board and the Referee appointed by this Court, that he is “thinking more clearly now than before. ” Therefore, one’s deductive conclusion is: He must have been influenced and impaired, to some degree, by the extent of the usage of controlled substances. And mind you, these words come from his own mouth. Alcohol, marijuana, and cocaine simply had to take some kind of a toll of his mental processes. In a nutshell, his *679ability to participate in the justice system was, at best, under a tremendous cloud. Assuming arguendo, he did not suffer, a physical, or mental impairment — what was his responsibility to the court that he practiced before — and the public? As he proceeded to hold the general public accountable for drug usage, what of his own accountability to the public? Conceptually, this is where the duplicity enters, abounds and then poisons the criminal justice system.
There appears to be a great emphasis, in the advocacy herein, upon the best interests for this lawyer. Should we not more properly address the consideration of the best interests of the public? And more, particularly, the South Dakota Rules of Professional Conduct? It strikes me that the integrity of the State Bar of South Dakota and the image of the legal profession in South Dakota justifies a more serious sanction than a suspension from the practice of law.
An appointed Referee of this Court, the Honorable Eugene L. Martin, entered 28 pages of formal “Findings and Recommendations.” His ultimate conclusion was disbarment. We are not bound by this recommendation. Discipline of Stanton, 446 N.W.2d 33 (S.D.1989). We should, however, give it “careful consideration.” See, In re Discipline of Draeger, 463 N.W.2d 346 (S.D.1990). Having heard all of the evidence, the Referee disagreed with the Disciplinary Board’s recommendation of a 90 day suspension. The Referee relied, in part, upon a quote from our decision in Matter of Discipline of Hendrickson, 456 N.W.2d 140 (S.D.1990):
Disbarment is warranted when it is clear that the protection of society requires such action or where the maintenance of respect for courts and judges or the respectability of the legal profession itself demands such action.
Based upon the Referee’s extensive findings and conclusions, I would adopt the recommendation of the Referee.
Today, as demonstrated by President Bush's “War on Drugs” and the millions of taxpayers’ dollars spent to eradicate the usage and sale thereof, we Americans live in a drug culture. It corrupts our youth and spawns crime. It attacks the weak and brings down the strong. It destroys the fabric of our American way of life. It is ugly, mean and venomous, feeding like a viper upon the bodies of children and human beings who become victims of its dreaded forces. It creates drug lords, making them millionaires, and this money spills into evil forces to commit further wrongs upon innocent people. Jeffries, by using drugs as a state prosecutor, and by purchasing marijuana for others, and then distributing them to friends, aided the drug culture. His role was to eradicate the drug culture. With the exception of a case wherein an attorney aided in distributing cocaine and conspired to distribute cocaine (sell cocaine), Matter of Discipline of Reutter, 379 N.W.2d 315 (S.D.1985); Matter of Moeckly, 401 N.W.2d 537 (S.D.1987) (conspiracy to import and distribute cocaine), the present case before us presents the most egregious conduct of an attorney involved in drugs presented to this Court.
In State v. Barber, 427 N.W.2d 375, 378 (S.D.1988) our Supreme Court expressed:
Drug abuse is a peril to society and particularly to our youth. State v. Pet-tis, 333 N.W.2d 717, 720 (S.D.1983). The costs to society in terms of health and mental well-being and lost potential of young people involved in such activity are incapable of estimation. Further, in attempting to curb drug abuse, society is required to expend ever increasing financial resources in law enforcement and drug awareness and prevention campaigns.
Jeffries has forfeited his privilege of practicing law in this state. The respectability of the legal profession demands such forfeiture. How can the people of this state respect the criminal justice system when a state prosecutor, who prosecutes drug users, uses them himself? The answer is simple: They cannot.
Here, the enormity of the drug problem was exacerbated by the public’s servant.
Per his testimony before the Board, his position as a deputy state’s attorney was *680his first employment as an attorney. It is noted that he testified before the Disciplinary Board he had a son and a “girlfriend” and was not married. He further testified that he was working “in house” at the Rapid City Regional Hospital; he was 35 years of age when the Referee entered Findings of Fact and Conclusions of Law herein. He is young enough to practice law again in South Dakota during his lifetime and gain grace within the legal profession.
Jeffries has the right to apply for readmission after 5 years. He would be required to pass a bar examination anew and also pass an Ethics examination. It could then be determined if he is, once again, fit to practice law and be an officer of the courts.
Most of us can face a crisis. Day to day living wears us out. It is day-to-day living that prevents or averts crisis. Jeffries has some day-to-day living to go through, to prove his legal and family commitment. When he proves to himself to have the character to stand up under the tribulations of each day, then both he and this Court can review his past, examine his then present circumstances, and have an educated viewpoint of what is yet to come.
All of these criminal activities were non-prosecuted. In his concluding Amended Answer, he supplicates this Court for mercy. He has already received "mercy.”