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Drug Legalization, Criminalization, and Harm Reduction
by DAVID BOAZ
Ours is a federal republic. The federal government has only the
powers granted to it in the Constitution. And the United States has a
tradition of individual liberty, vigorous civil society, and limited
government: just because a problem is identified does not mean that
the government ought to undertake to solve it, and just because a
problem occurs in more than one states does not mean that it is a
proper subject for federal policy.
Perhaps no area more clearly demonstrates the bad consequences of
not following such rules than drug prohibition. The long federal
experiment in prohibition of marijuana, cocaine, heroine, and other
drugs has given us unprecedented crime and corruption combined with a
manifest failure to stop the use of drugs or reduce their availability
to children.
In the 1920s Congress experimented with the prohibition of alcohol
On February 20, 1933, a new Congress acknowledged the failure of
alcohol Prohibition and sent the Twenty-First Amendment to the states.
Congress recognized that Prohibition had failed to stop drinking and
had increased prison populations and violent crime. By the end of
1933, national Prohibition was history, though in accordance with our
federal system many states continued to outlaw or severely restrict
the sale of liquor.
Today Congress confronts a similarly failed prohibition policy.
Futile efforts to enforce prohibition have been pursued even more
vigorously in the 1980s and 1990s than they were in the 1920s. Total
federal expenditures for the first 10 years of Prohibition amounted to
$88 million -- about $733 million in 1993 dollars. Drug enforcement
cost about $22 billion in the [Ronald] Reagan years and another $45
billion in the four years of the [George H. W.] Bush administration.
The federal government spent $16 billion on drug control programs in
FY 1998 and has approved a budget of $17.9 billion for FY in 1999. The
Office of Natioinal Drug Control Policy reported in April 1999 that
state and local governments spent an additional $15.9 billion in FY
1991, an increase of 13 percent over 1990, and there is every reason
to believe that state and local expenditures have risen throughout the
1990s.
Those mind-boggling amounts have had some effect. Total drug
arrests are now more than 1.5 million a year. There are about 400,000
drug offenders in jails and prison now, and over 80 percent of the
increase in the federal prison population from 1985 to 1995 was due to
drug convictions. Drug offenders constituted 59.6 percent of all
federal prisoners in 1996, up from 52.6 percent in 1990. (Those in
federal prison for violent offenses fell from 18 percent to 12.4
percent of the total, while property offenders fell from 14 percent to
8.4 percent.)
Yet as was the case during Prohibition, all the arrests and
incarcerations haven't stopped the use and abuse of drugs, or the drug
trade, or the crime associated with black-market transactions. Cocaine
and heroin supplies are up; the more our Customs agents interdict, the
more smugglers import. In a letter to the Wall Street Journal
published on November 12, 1996, Janet Crist of the White House Office
of National Drug Police claimed some success:
Other important results [of the Pentagon's anti-drug
efforts] include the arrest of virtually the entire Cali drug cartel
leadership, the disruption of the Andean air bridge, and the
hemispheric drug interdiction effort that has captured about a third
of the cocaine produced in South America each year.
"However," she continued, "there has been no direct effect on either
the price or the availability of cocaine on our streets." That is
hardly a sign of a successful policy. And of course, while crime rates
have fallen in the past few years, today's crime rates look good only
by the standards of the recent past; they remain much higher than the
levels of the 1950s.
As for discouraging young people from using drugs, the massive
federal effort has largely been a dud. hahaha, after all, look
where I'm posting this. Despite the soaring expenditures on
antidrug efforts, about half the students in the United States in 1995
tried an illegal drug before they graduated from high school.
According to the 1997 National Household Survey on Drug Abuse, 54.1
percent of high school seniors reported some use of an illegal drug at
least once during their lifetime, although it should be noted that
only 6.4 percent reported use in the month before the survey was
conducted. Every year from 1975 to 1995, at least 82 percent of high
school seniors have said they find marijuana "fairly easy" or "very
easy" to obtain. During that same period, according to federal
statistics of dubious reliability, teenage marijuana use fell
dramatically and then rose significantly, suggesting that cultural
factors have more effect than "the war on drugs."
The manifest failure of drug prohibition explains why more and more
people -- from Baltimore mayor Kurt Schmoke to Nobel laureate Milton
Friedman, conservative columnist William F. Buckley Jr., and former
secretary of state George Shultz -- have argued that drug prohibition
actually causes more crime and other harms than it prevents.
THE FAILURES OF PROHIBITION
Congress should recognize the failure of prohibition and end the
federal government's war on drugs. First and foremost, the federal
drug laws are constitutionally dubious. As previously noted, the
federal government can only exercise the powers that have been
delegated to it. The Tenth Amendment reserves all other powers to the
states or to the people. However misguided the alcohol prohibitionists
turned out to be, they deserve credit for honoring our constitutional
system by seeking a constitutional amendment that would explicitly
authorize a national policy on the sale of alcohol. Congress never
asked the American people for additional constitutional powers to
declare a war on drug consumers.
Second, drug prohibition creates high levels of crime. Addicts are
forced to commit crimes to pay for a habit that would be easily
affordable if it were legal. Police sources have estimated that as
much as half the property crime in some major cities is committed by
drug users. More dramatically, because drugs are illegal, participants
in the drug trade cannot go to court to settle disputes, whether
between buyer and seller or between rival sellers. When black-marker
contracts are breached, the result is often some form of violent
sanction, which usually leads to retaliation and then open warfare on
the streets.
Our capital city, Washington, D.C., has become known as the "murder
capital" even though it is the most heavily policed city in the United
States. Make no mistake about it, the annual carnage that stands
behind America's still outrageously high murder rates has nothing to
do with the mind-altering effects of a marijuana cigarette or a crack
pipe. It is instead one of the grim and bitter consequences of an
ideological crusade whose proponents will not yet admit defeat.
Third, drug prohibition channels over $40 billion a year into the
criminal underworld. Alcohol prohibition drove reputable companies
into other industries or out of business altogether, which paved the
way for mobsters to make millions through the black market. If drugs
were legal, organized crime would stand to lose billions of dollars,
and drugs would be sold by legitimate businesses in an open
marketplace.
Fourth, drug prohibition is a classic example of throwing money at
a problem. The federal government spends some $16 billion to enforce
the drug laws every year -- all to no avail. Four years drug war
bureaucrats have been tailoring their budget requests to the latest
news reports. When drug use goes up, taxpayers are told the government
needs more money so that it can redouble it's efforts against a rising
drug scourge. When drug use goes down, taxpayers are told that it
would be a big mistake to curtail spending just when progress is being
made. Good news or bad, spending levels must be maintained or
increased.
Fifth, the drug laws are responsible for widespread social
upheaval. "Law and order" advocates too often fail to recognize that
some laws can actually cause societal disorder. A simple example will
illustrate that phenomenon. Right now our college campuses are
relatively calm and peaceful, but imagine what would happen if
Congress were to institute military conscription in order to wage a
war in Kosovo, Korea, or the Middle East. Campuses across the country
would likely erupt in protest -- even though Congress obviously did
not desire that result. The drug laws happen to have different
"disordering" effects. Perhaps the most obvious has been turning our
cities into battlefields and upending the normal social order.
Drug prohibition has created a criminal subculture in our inner
cities. The immense profits involved in a black-market business make
the drug dealing the most lucrative endeavor for many people,
especially those who care least about getting on the wrong side of the
law.
Drug dealers become the most visibly successful people in
inner-city communities, the ones with money, and clothes, and cars.
Social order is turned upside down when the most successful people in
a community are criminals. The drug war makes peace and prosperity
virtually impossible in inner cities.
Sixth, the drug laws break up families. Too many parents have been
separated from their children because they were convicted of marijuana
possession, small-scale sale of drugs, or some other non-violent
offense. Will Foster used marijuana to control the pain and swelling
associated with his crippling rheumatoid arthritis. He was arrested,
conticted of marijuana cultivation, and sentenced to 93 years in
prison, later reduced to 20 years. Are his three children better off
with a father who uses marijuana medicinally, or a father in jail for
20 years?
And going to jail for drug offenses isn't just for men any more. In
1996, 188,800 women were arrested for violating drug laws. Most of
them did not go to jail, or course, but more than two-thirds of the
146,000 women behind bars have children. One of them is Brenda
Pearson, a heroin addict who managed to maintain a job at a securities
firm in New York. She supplied heroin to an addict friend, and a
Michigan prosecutor had her extradited, prosecuted, and sentenced to
50 to 200 years. We can only hope that her two children will remember
her when she gets out.
Seventh, drug prohibition leads to cibil liberties abuses. The
demand to win this unwinnable war has led to wiretapping, entrapment,
property seizures, and other abuses of Americans' traditional
liberties. The saddest cases result in the deaths of innocent people:
people like Donald Scott, whose home was raided at dawn on the pretext
of cultivating marijuana, and who was shot and killed when he rushed
into the living room carrying a gun; or people like the Rev. Accelyne
Williams, a 75-year-old minister who died of a heart attack when
police burst into his Boston apartment looking for drugs -- the wrong
apartment, as it turned out; or people like Esequiel Hernandez, who
was out tending his family's goats near the Rio Grande just six days
after his 18th birthday when he was shot by a Marine patrol looking
for drug smugglers. As we deliberate the costs and benefits of drug
policy, we should keep those people in mind.
Students of American history will someday ponder the question of
how today's elected officials could readily admit to the mistaken
policy of alcohol prohibition in the 1920s but continue the policy of
drug prohibition. Indeed, the only historical lesson that recent
presidents and Congresses seem to have drawn from the period of
alcohol prohibition is that government should not try to outlaw the
sale of alochol. One of the broader lessons that they should have
learned is this: prohibition laws should be judged according to their
real-world effects, not their promised benefits.
Intellectual history teaches us that people have a strong incentive
to maintain their faith in old paradigms even as the facts become
increasingly difficult to explain within that paradigm. But when a
paradigm has manifestly failed, we need to think creatively and
develop a new paradigm. The paradigm of prohibition has failed. I urge
members of Congress and all Americans to have the courage to let go of
the old paradigm, to think outside the box, and to develop a new model
for dealing with the very real risks of drug and alcohol abuse. If the
106th Congress will subject the federal drug laws to that kind of new
thinking, it will recognize that the drug war is not the answer to
problems associated with drug use.
RESPECT STATE INITIATIVES
In addition to the general critique above, I would like to touch on a
few more specific issues. A particularly tragic consequence of the
stepped-up war on drugs is the refusal to allow sick people to use
marijuana as medicine. Prohibitionists insist that marijuana is not
good medicine, or at least that there are legal alternatives to
marijuana that are equally good. Those who believe that individuals
should make their own decisions, not have their decisions made for
them by Washington beureaucracies, would simply say that that's a
decision for patients and their doctors to make. But in fact there is
good medical evidence about the therapeutic value of marijuana --
despite the difficulty of doing adequate research on an illegal drug.
A recent National Institutes of Health panel concluded that smoking
marijuana may help treat a number of conditions, including nausea and
pain. It can be particularly effective in improving appetite of AIDS
and cancer patients. The drug could also assist people who fail to
respond to traditional remedies.
More than 70 percent of U.S. cancer specialists in one survey said
they would prescribe marijuana if it was legal; nearly half said they
had urged their patients to break the law to acquire the drug. The
British Medical Association reports that nearly 70 percent of its
members believe marijuana should be available for therapeutic use.
Even President George [H. W.] Bush's Office of Drug Control Policy
criticized the Department of Health and Human Services for closing its
special medical marijuana program.
Whatever the actual value of medical marijuana, the relevant fact
for federal policymakers is that in 1996 the voters of California and
Arizona authorized physicians licensed in the state to recommend the
use of medical marijuana to seriously ill and terminally ill patients
residing in the state without being subject to civil and criminal
penalties.
In response to those referenda, however, the Clinton administration
announced, without any intervening authorization from Congress, that
any physician recommending or prescribing medicinal marijuana under
state law would be prosecuted. In the February 11, 1997, Federal
Register the Office of National Drug Control Policy announced that
federal policy would be as follows: (1) physicians who recommend and
prescribe medicinal marijuana to patients in conformity with state law
and patients who use such marijuana will be prosecuted; (2) physicians
who recommend and prescribe medicinal marijuana to patients in
conformity with state law will be excluded from Medicare and Medicaid;
and (3) physicians who recommend and prescribe medicinal marijuana to
patients in conformity with state law will have their scheduled-drug
DEA [Drug Enforcement Administration] registrations revoked.
The announced federal policy also encourages state and local
enforcement officials to arrest and prosecute physicians suspected of
prescribing or recommending medicinal marijuana and to arrest and
prosecute patients who use such marijuana. And adding insult to
injury, the policy also encourages the IRS [ Internal Revenue Service]
to issue a revenue ruling disallowing any medical deduction for
medical marijuana lawfully obtained under state law.
Clearly, this is a blatant effort by the federal government to
impose a national policy on the people in the states in question,
people who have already elected a contrary policy. Federal officials
do not agree with the policy the people have elected; they mean to
override it, local rule notwithstanding -- just as the Clinton
administration has tried to do in other cases, such as the California
initiatives dealing with racial preferences and state benefits for
immigrants.
Congress and the administration should respect the decisions of the
voters in Arizona and California; and in Alaska, Nevada, Oregon, and
Washington, where voters passed medical marijuana initiatives in 1998;
and in other states where such initiatives may be proposed, debated,
and passed. One of the benefits of a federal republic is that
different policies may be tried in different states. One of the
benefits of our Constitution is that it limits the power of the
federal government to impose one policy on the several states.
REPEAL MANDATORY MINIMUMS
The common law in England and America has always relied on judges and
juries to decide cases and set punishments. Under our modern system,
of course, many crimes are defined by the legislature, and appropriate
penalties are defined by statute. However, mandatory minimum sentences
and rigid sentences guidelines shift too much power to legislators and
regulators who are not involved in particular cases. They turn judges
into clerks and prevent judges from weighing all the facts and
circumstances in setting appropriate sentences. In addition, mandatory
minimums for nonviolent first-time drug offenders result in sentences
grotesquely disproportionate to the gravity of the offense. Absurdly,
Congress has mandated minimums for drug offenses but not for murder
and other violent crimes, so that a judge has more discretion in
sentencing a murder than a first-time drug offender.
Rather than extend mandatory minimum sentences to further crimes,
Congress should repeal mandatory minimums and let judges perform their
traditional function of weighing the facts and setting appropriate
sentences.
CONCLUSION
Drug abuse is a problem, for those involved in it and for their family
and friends. But it is better dealt with as a moral and medical than
as a criminal problem -- "a problem for the surgeon general, not the
attorney general," as Mayor Schmoke puts it.
The United States is a federal republic, and Congress should deal
with drug prohibition the way it dealt with alcohol Prohibition. The
Twenty-First Amendment did not actually legalize the sale of alcohol;
it simply repealed the federal prohibition and returned to the several
states the authority to set alcohol policy. States took the
opportunity to design diverse liquor policies that were in tune with
the preferences of their citizens. After 1933, three states and
hundreds of counties continued to practice prohibition. Other states
chose various forms to alcohol legalization.
Congress should withdraw from the war on drugs and let the states
set their own policies with regard to currently illegal drugs. The
states would be well advised to treat marijuana, cocaine, and heroin
the way most states now treat alcohol: It should be legal for licensed
stores to sell such drugs to adults. Drug sales to children, like
alcohol sales to children, should remain illegal. Driving under the
influence of drugs should be illegal.
With such a policy, Congress would acknowledge that our current
drug policies have failed. It would restore authority to the states,
as the Founders envisioned. It would save taxpayers' money. And it
would give the states the power to experiment with drug policies and
perhaps devise more successful rules.
Repeal of prohibition would take the astronomical profits out of
the drug business and destroy the drug kingpins that terrorize parts
of our cities. It would reduce crime even more dramatically than did
the repeal of alcohol prohibition. Not only would there be less crime;
reform would also free police to concentrate on robbery, burglary, and
violent crime.
The War on Drugs has lasted longer than Prohibition, longer than
the War in Vietnam. But there is no light at the end of this tunnel.
Prohibition has failed, again, and should be repealed, again.