To appear in:
Robinson, Matthew B. (2005). Justice Blind? Ideals and Realities
of American Criminal Justice (2nd Edition). Upper Saddle River,
NJ: Prentice Hall.
James Inciardi (1991: 47–49), editor of The Drug Legalization Debate, lays out some of these key questions:
Although answers to these questions must be developed before we
allow legal drug use, I will not attempt to answer them directly here.
This should be left to people with experience in policymaking (for an example
of one model legalization proposal, see Karel, 1991). Instead, I hope to
lay out the main argument in favor of some level of drug decriminalization.
The main argument in favor of decriminalization is that the drug war fails so miserably in controlling drug use (which is mostly recreational in nature) and drug abuse (which is in essence a medical problem). The main argument against decriminalization is that drug use and abuse will increase and cause unimaginable harms. Most Americans may think that any form of legalization of drugs is “an invitation to drug infested anarchy” (Nadelmann, 1991: 18), but this does not have to be the case. Even the staunchest drug legalization advocates acknowledge that use of certain substances might increase if they were legalized, not only because they would be more readily available but also because the deterrent effect of the criminal sanction would no longer apply. No one will argue that more drug use would actually be a good thing, but it may not be as bad a thing as you might imagine. The harms associated with increased use would depend on the specific drug legalization proposal. For example, if the government decided to legalize all drugs and then regulated their quality and availability and also restricted their use to competent, mature adults, increased recreational drug use might actually be a cost-effective alternative to the American drug war.
No, decriminalization is not sure to be a success (e.g., see Wilson, 1998), for “No one knows for certain the extent to which it would increase the number of addicts.... Few would deny...that the greater availability of, and easier access to, drugs would increase drug use (and addiction) beyond current levels” (Nuro, Kinlock, and Hanlon, 1998: 230). This seems a logical and fair conclusion.
Nadelmann (1998) does suggest that drug legalization would increase the availability of drugs, lower their prices, and remove whatever deterrent effect the law has currently, which might suggest increased drug use. Price is a function of supply and demand (Reuter, 1998): when demand for drugs is high, prices are low, and when prices are low, demand may be high. As long as drugs are illegal, sellers can artificially inflate the price to whatever levels they see fit—whatever price warrants the inherent risks associated with being in the illicit drug business.
Could we at least consider decriminalization of illicit drugs as a policy possibility, especially given that current interdiction efforts “have shown little success in stemming the flow of cocaine and heroin into the United States” (Nadelmann, 1998: 289–290)? Law enforcement cannot ever possibly “go to the root of the problem” (Reuter, 1998: 315). Making some drugs illegal “has proven highly costly and counterproductive in much the same way that the national prohibition of alcohol did” (Nadelmann, 1998: 290).
Nadelmann writes that legalization is not a “get out of jail free card” for drug dealers. Rather, it is a way to put them out of the drug business and to remove much of the criminality surrounding drugs, as well. It is also not an excuse for irresponsible use or abuse of drugs. What I propose, echoing the sentiments of Nadelmann, is that the government make currently illicit substances legally available to adults, while simultaneously regulating their production, distribution, and sale. In conjunction with these efforts, the government must provide drug-related education about the true harms associated with all drug use, including the use of currently legal drugs such as tobacco and alcohol (Jonas, 1991: 172). It must also offer drug treatment programs for people who are addicted to or abuse any drugs.
I believe criminal justice agencies should get out of the drug war business for a number of reasons. As you saw in this chapter, the drug war fails to achieve its goals, including to reduce illicit drug use and abuse. Additionally, our drug control efforts are highly costly, both financially and socially. For example, you saw that the criminalization of drugs creates crime through an illegal black market, which actually encourages people to get into the illicit drug business, that our drug reduction efforts have led to an erosion of Constitutional protections, and that because drugs are illegal, there are no quality controls in place to ensure safe use.
In addition, I suggest that:
Each of these is discussed below.
THE DRUG WAR IS HYPOCRITICAL.
Without doubt, one primary purpose of the criminal law is to promote morality (see Chapter 3). Thus, a primary function of the government is “the promotion of moral behavior and good health practices among its citizens” (Rouse and Johnson, 1991: 185). To focus on some drugs and characterize them as immoral, while virtually ignoring others that cause more harm, seems illogical at best.
As discussed earlier in this chapter, far more harms are associated with legal drugs like tobacco and alcohol than with illicit drugs such as marijuana, cocaine, and heroin. Even relative to their levels of use in the United States, some legal drugs are far more deadly and dangerous than many illicit drugs (Jonas, 1991). So, Nadelmann (1991: 25) concludes:
There is little question that we could reduce the health costs associated
with use and abuse of alcohol and tobacco if we were to criminalize their
production, sale, and possession. But no one believes that we could eliminate
their use and abuse, that we could create an “alcohol-free” or “tobacco-free”
country. Nor do most Americans believe that criminalizing the alcohol and
tobacco markets would be a good idea.
As explained by Nadelmann, criminalizing legal drugs is a bad
idea because of two primary beliefs of Americans: “that adult Americans
have the right to choose what substances they will consume and what risks
they will take; and that the costs of trying to coerce so many Americans
to abstain from those substances would be enormous.”
Still, we have identified and isolated some drugs that, even when
used recreationally or when merely possessed, are criminalized on the basis
of their likelihood of causing harm. This focus seems hypocritical, given
that a shift from casual alcohol use to the recreational use of marijuana
would likely lead to a decrease in violence in the United States (Nadelmann,
1991: 31). Yet, Americans overwhelmingly support the drug war and draw
a “moral line in the sand” between unlawful and lawful substances. However,
just because “the American people simply do not want it” (Inciardi, 1991:
66), that does not mean that legalization of drugs is wrong. To the degree
that Americans base their opinions about crime and justice on media information
and public stances of politicians (see Chapter 5), it is not surprising
that they tend to oppose decriminalization.
DRUG ABUSE WOULD NOT LIKELY INCREASE IF DRUGS WERE DECRIMINALIZED.
As noted earlier in this chapter, most drug use in the United States is recreational. It is intimately linked to American culture as a whole and to particular subcultures within the larger society, and it is typically limited to certain social situations and social groups. Because most drug users do not become drug abusers, any increase in drug use resulting from decriminalization would not likely lead to very large levels of drug abuse. Experimentation with relatively minor drugs such as marijuana would also not likely lead to the use of “harder” drugs such as cocaine and heroin, as proponents of the “gateway hypothesis” suggest. In fact, most people who use marijuana recreationally do not use or abuse harder drugs; the gateway to illicit drugs is found in legal drugs such as tobacco and alcohol (Casement, 1987; Schoenborn and Cohen, 1986; Trebach, 1987). Even the federal government and the ONDCP admit that the first steps of drug use are tobacco and alcohol, yet these drugs are not criminalized. Tobacco and alcohol users are far more likely, according to the ONDCP, to use illicit drugs.
As predispositions to drug abuse continue to be discovered, it is likely that we soon will be able to identify those individuals most susceptible to drug addiction and dependence and be able to focus our drug use education programs and drug abuse prevention programs directly at these individuals. Perhaps drug use would become more socially acceptable if all drugs were not criminalized. This could be counteracted with effective education programs that make drug use socially undesirable except in very specific circumstances.
Another reason to doubt that drug abuse would increase is that drugs are already widely available to most people (Inciardi, 1991: 56). Legalization might make it easier to obtain drugs for use, but Americans can already easily obtain illicit substances as they wish. Inciardi cautions that once illicit drugs become legal, the market economy will take over or at least become heavily involved in maintaining drug use. This may be true, given corporate involvement in the U.S. alcohol and tobacco industries. But again, nothing mandates that the government has to permit this.
Interestingly, legalization opponents such as Inciardi argue against all forms of legalization, in part because they hold that drug legalization would be a “program of social management and control that would serve to legitimate the chemical destruction of an urban generation and culture” (Inciardi, 1991: 65). Why? Because disenfranchised segments of the population might end up using more drugs, Inciardi posits that drug legalization would be a racist and elitist policy. I conclude the opposite: that the war on drugs currently results in alarming criminal justice disparities based on race and class, and that these disparities would be lessened if drug offenses were decriminalized. This would make criminal justice more just and thus more in line with its ideal goals.
Wisotsky (1991: 108–109) concludes that the American drug war
“makes a net negative contribution to the safety, well-being, and national
security interests of the American people.” If this is true, as I believe
it is, then the criminal justice network, by waging a war against drugs,
is not only failing to meet its goal of reducing crime but may in fact
be exposing U.S. citizens to greater threats to their personal safety.
DRUG ABUSE IS A MEDICAL PROBLEM RATHER THAN A CRIMINAL JUSTICE PROBLEM.
Decriminalization would also deemphasize the use of criminal justice resources to deal with the medical problem of drug abuse (Nadelmann, 1998). Our money might be better spent dealing with tobacco and alcohol use and abuse, as well as serious violent crimes. As Nadelmann (1998: 294) points out, “the standard refrain regarding the immorality of drug use (such as that in Nancy Reagan’s ‘Just Say No’ campaign) crumbles in the face of most Americans’ tolerance for alcohol and tobacco use.”
Research shows that treatment works to reduce drug abuse and to alleviate the harms associated with it (Gray, 2001; MacCoun and Reuter, 2000). According to the RAND Corporation, drug treatment is 7 times more cost effective than law enforcement, 11 times more than interdiction, 23 times more than drug eradication (Gray, 2001). According to the National Institute of Drug Abuse (NIDA): “Most people don’t believe treatment works, and they’re wrong” (MacCoun and Reuter, 2001). And according to Benekos (2001), rearrest rates are lower for people involved in special drug court programs than those handled in normal courts Processes.
The war on drugs has allowed American policing to get bigger and meaner, resulting in numerous tragic abuses of human rights. Growing use of undercover operations and electronic surveillance may infringe upon our freedoms, and the growing use of informants flies in the face of crime control goals. Says Nadelmann (1998: 195):
Overzealous enforcement of the drug laws risks undermining (the ethic of tolerance toward those who are different but do no harm to others) and propagating in its place a society of informants. Indeed, enforcement of the drug laws makes a mockery of an essential principle of a free society, that those who do no harm to others should not be harmed by others, and particularly not by the state.
Decriminalization would allow people to engage in drug using behaviors
that are relatively harmless while simultaneously leading to the development
of possible mechanisms to identify and treat drug abusers medically. Criminal
justice responses to drug use and abuse do not allow for this.
ALTERANTIVES TO THE DRUG WAR WOULD BE MUCH MORE EFFECTIVE
According to MacCoun and Reuter, in their exhaustive book, Drug War Heresies (2001), many alternative drug reduction and harm reduction programs have proven to be effective in European nations. These include needle exchange programs, which save lives by reducing HIV and AIDS infections but do not seem to lead to increased use. Needle exchange programs endorsed by the Centers for Disease Control and Prevention, the National Academy of Sciences, and numerous health and medical organizations. Other successful programs include drug treatment programs (which have been proven more effective at reducing drug use and abuse than prisons), methadone maintenance programs (which allow drug users to lead functional lives with a much lower risk of overdose or death as a result of their use), and marijuana decriminalization (which has kept use rates lower in the Netherlands than the United States). The Dutch have also not seen increases in use of harder drugs and have also save money on not incarcerating marijuana offenders – the U.S. currently incarcerates at least 50,000 marijuana offenders.
According to Nadelmann (1998: 299), decriminalization of drugs would accomplish the following:
The bottom line is that the U.S. war on drugs creates far more harm
than it stops. MacCoun and Reuter (2001: 386) conclude, as I have in this
chapter, that our policies “have failed to eliminate drug dependence, have
at best only moderately reduced drug use, and have left its harms largely
intact” and that our policies themselves a source of many drug-related
harms. They also point out that although the U.S. government claims one
of its goals is harm reduction, there is not one specific program aimed
at achieving that goal!
An alternative to waging war on drugs would be a policy of harm reduction, which “is the emphasis on the reduction of adverse consequences rather than the elimination of drug use. Harm reduction is a framework from which policy and program strategies are conceptualized, developed, and implemented with the outcome goal being the reduction or minimization of harm (without requiring user abstinence or less consumption). (p. 179) It is aimed at reducing adverse physical, social, and economic consequences of drug use.
A more effective antidrug strategy would thus be characterized by the following (Jensen and Gerber, 1998):
For such an approach to be effective, it must be “accompanied by
the view of users as mainstream or potentially functional members of society
rather than marginal deviant misfits.” Also, truths about drug use must
emerge, meaning myths of drug use must be overcome (p. 189). One example
is that most of the population of virtually every nation never tries cocaine.
Of those who do, most do not become addicted. In fact, only 5% to 10% of
cocaine users use the drug frequently (Erickson, 1993). Imagine politicians
and the media trying to sell the war against cocaine to Americans in the
face of these facts.
MacCoun and Reuter (2001: 409) challenge U.S. policy makers to at least consider the evidence. They say: “We earnestly believe that, ignoring specific proposals, the desirability of major reform has a reasonable empirical and ethical basis. To scorn discussion and analysis of such major change, in light of the extraordinary problems associated with current policies, is frivolous and uncaring.”
I conclude by echoing the sentiment of Kappeler et al. (2000:
167), who I think speak for most within the disciplines of criminology
and criminal justice when they write: “Drug control policy has not failed
for lack of resources, funding, legal powers, or adequate personnel. It
has failed because the problem is not amenable to a criminal justice solution.”
We know this. Failing to correct it produces outcomes inconsistent with
the ideal goals of the U.S. criminal justice network