Illegal Drugs:The Case for Legalization

Surely, however, we know despite all this which drugs ought to be legal and which should be outlawed. What is the criterion to be? Every principle stated would rule out drugs that are readily available at grocery stores, pharmacies, or prescribed by doctors - with the benediction of society and approved by law. Let us try a few examples.

A. It should be illegal because it is addictive. Then let us add cigarettes and many prescription drugs to the list alongside cocaine and heroin.

B. It should be illegal because it is unsafe. In that case the sale of tobacco and alcohol would have to be criminalized. An ABC television news program in September 1999 reported that 140, 000 people die each year from prescription drugs,⁽⁴⁾ while marijuana kills no one.

C. It should be illegal because it makes people behave dangerously. Out goes alcohol again. The deaths caused by drunk driving are a national scandal.

D. It should be illegal because it gives pleasure. Beer, wine, and liquor meet that standard, and so does Viagra. TV adds constantly inundate us with products that promise to make us feel and look good.

E. It should be illegal because it alters the mind and emotions. There go Zanax, which reduces anxiety, and Prozac, which relieves depression, into the forbidden category.

F. It should be illegal because it is detrimental to health. Cigarettes head the list of licit products that would have to be outlawed by this standard and would be way ahead of marijuana.

G. It should be illegal if it contributes to violence or crime. Far more violence is related to alcohol than to banned substances.

No clear-cut line can be drawn between those drugs that should be illegal and those we permit but regulate. We do not outlaw certain drugs for crystal-clear reasons of health, safety, morality, or social welfare. The explanations are historical, economic, political, and cultural. Society has made choices on grounds that are ambiguous, murky, confused, and contradictory. As between marijuana or martinis, no scientific evidence justifies the legal distinction between these two substances. Why should not adults have the right to decide which drug to use? Why should we not make tobacco illegal and regard the use of marijuana, heroin, and cocaine as public health problems rather than as criminal offenses? We do the reverse, but why? The answer in the case of tobacco is that powerful economic interests as well as the power of history and custom dictate the outcome. These are complex problems with no easy solution. From the standpoint of rational analysis, however, our current attitudes and polices are a muddled mess.

Public opinion is shot through with contradictions. 78% of the American people believe the war on drugs has failed, but 66% would be willing to pay more taxes to increase the efforts they say have not worked. 94% think that the illegal drug problem is not under control but the policy options favored include more severe prison sentences followed by an increase in anti-drug education in schools and increased funding for law enforcement. Only 19% of the public is in favor of increasing funds to provide drug treatment despite the fact of its proven effectiveness, while there is no evidence that stiffer penalties deters use and abuse.⁽⁵⁾ 76% said they would not favor legalizing cocaine and heroin even it resulted in a reduction of crime.

Current policy is irrational. The evidence is overwhelming that money spent for prevention and treatment of drug use would be far most cost-effective than incarceration.⁽⁶⁾ Comprehensive programs of treatment and rehabilitation will reduce crime, enable addicts to get and hold jobs, improve their physical and mental health, produces other social benefits.⁽⁷⁾ Yet the government spends only 20% of its $17 billion budget for drug and alcohol treatment.⁽⁸⁾ We punish addicts instead of treating them.⁽⁹⁾ A huge proportion of the prison population is there because of drug and alcohol-related offenses. One study made the astonishing claim that 80% fall into this category - 1.4 million of the 1.7 million inmates. Prisoners include parents of 2.4 million children.⁽¹⁰⁾ Of the total, 63% of federal and 21% of state prisoners in 1997 were there for drug-related offenses alone. "The leading substance abuse crime in the US is drunk driving, accounting for 1.4 million arrests in 1995 at a cost of $5.2 billion for arrests and prosecutions."⁽¹¹⁾ In 1996 $30 billion of the $38 billion spent to build and operate the prisons of the country was spent to incarcerate drug and alcohol-related offenders. The penalties for non-violent drug offenses are all out of proportion to the harm done, especially where marijuana is concerned - the least damaging of the illegal substances.⁽¹²⁾ Drug treatment of prisoners is badly needed, would be highly effective in reducing social harm, and would save billions of dollars but is grossly underutilized. According to the Department of Justice, although drug and alcohol counseling was available in nearly 90% of State and Federal facilities, only 10 to 20% of prison inmates participated in treatment during their incarceration.⁽¹³⁾ Getting tougher on offenders is a simplistic answer easy for politicians to promote, preys upon the fears of people, and garners the support of all those government bureaucracies, businesses, and communities who benefit in profit and employment from the growing prison industry. Many experts who do not favor legalizing drugs believe that the current policy is profoundly misguided in putting too much emphasis on punishment and not nearly enough on prevention, treatment, and helping addicts become more economically productive citizens who are not a threat to themselves or society.

The war on drugs has put civil liberties in jeopardy. Public pressure on judges to punish offenders temps them overlook constitutional provision protecting individual rights where drugs are concerned. This has a particular impact on minorities, who are more frequently harassed on highways and public places. All but four states permanently disenfranchise felons. The consequence is that 14% of African American males have lost the right to vote, according to Ira Glasser of the American Civil Liberties Union. He calls the war on drugs "a civil liberties and constitutional disaster in every way."⁽¹⁴⁾

One of the most distressing aspects of the present drug war is the shameful racial injustice associated with it.⁽¹⁵⁾ After crack cocaine became prevalent more than a decade ago, it was portrayed as a violence inducing, highly addictive plague of inner cities. The federal sentencing laws of 1986 and 1988 created a 100:1 quantity ratio between the amount of crack and powder cocaine needed to trigger certain mandatory minimum sentences for trafficking, as well as creating a mandatory minimum penalty for simple possession of crack cocaine. The result of these laws is that crack users and dealers receive much harsher penalties than users and dealers of powder cocaine. Because crack cocaine is less expensive and more common in inner cities, harsher punishment for crack has resulted in disproportionate punishment along racial lines. African Americans constitute 15 percent of cocaine users. However, 38 percent of those charged with powder cocaine violations, and 88 percent of those convicted of crack cocaine charges, are black. The result of the combined difference in sentencing laws and racial disparity is that black men and women are serving longer prison sentences than white men and women. The situation is similar but not as extreme in relation to Hispanics. Moreover, since nearly all cocaine is smuggled into the country and transported over state lines in powdered form, the federal sentencing disparity has produced long incarceration for low-level crack dealers rather than for international, interstate, and wholesale traffickers.⁽¹⁶⁾

There are disturbing differences in punishment between the races. Fifty-four percent (54%) of blacks convicted of drug offenses get sentenced to prison versus 34% of whites convicted of the same offenses. Forty-four percent (44%) of blacks get prison sentences for possession versus 29% of whites; 60% of blacks are sentenced to prison for trafficking while 37% of whites are sentenced to prison for the same crime.⁽¹⁷⁾ A similar racial disparity comes to light if we look at the way drunk drivers and drug violators are treated. Many states now have some form of mandatory sentencing, although this typically involves two days in jail for a first offense and 2-10 days for a second offense. Often, a convicted drunk driver is permitted to perform community service rather than serve a jail term. Typical state penalties for drug possession (excluding marijuana) are up to 5 years for a first offense and 1-10 years for a second offense. While the reasons for the vastly different treatment accorded to persons convicted of drunk driving and drug possession are complex, the situation raises disturbing questions of race and class. Drunk drivers are predominantly white males; they are generally charged as with misdemeanors and typically receive sentences involving fines, license suspension and community service. Persons convicted of drug possession are disproportionately low-income, and African-American or Hispanic. They are generally charged with felonies, and frequently sentenced to prison. Sentencing Project Assistant Director Marc Mauer noted that "drunk drivers are treated by the criminal justice system as people with problems, while drug users are treated as criminals.⁽¹⁸⁾

Attempts to think clearly about policy options involve unavoidable paradoxes and ambiguities. Nicotine causes the most disease, and alcohol is related to the most violence. Yet tobacco and alcohol are legal. Few propose to outlaw them since there is absolutely no chance of that happening. Both products are deeply integrated into the society and are defended by powerful economic interests. Illegal drugs kill around 10,000 at most. Tobacco kills more than 400,000 people a year and alcohol over 100,000.⁽¹⁹⁾ They do far more harm than all illegal drugs combined. They do so because they are widely used. They are widely used because they are legal and have wide social acceptance. Making drugs illegal and punishing offenders fails at solving the problem. Yet to give them the legal status that tobacco and alcohol now have is to run the risk of greater usage and thus greater harm. Prohibition is widely regarded as a failure. Yet from a health standpoint it was a success, since consumption and the disease associated with it were reduced.⁽²⁰⁾ Is more harm caused by making drugs illegal and trying to deter usage by threats of punishment? Or would it be even worse to legalize them and face the possibility of greater usage and increased damage to individuals and society? The logic behind keeping certain drugs illegal would lead us to make tobacco and alcohol illegal. The logic behind legalizing cocaine and heroin runs the risk of causing the great harm now done by tobacco and alcohol. The war against drugs as currently waged with emphasis on reducing supply is a failure,⁽²¹⁾ yet would legalization and concentrating nearly all efforts on reducing demand be just as bad or worse?⁽²²⁾

The drug problem has no easy solution. No panaceas are available. The question is many-sided, complex, and full of pitfalls. It involves elements race and class as well as crime, justice, health, and social well-being. Feelings and prejudices as well as rational debate about options enter the picture. Let us get it straight and never forget that the major drug problems in this country are nicotine and alcohol - not marijuana, cocaine, heroin, LSD, and the like. In economic terms alone, alcohol does far more damage than all illegal drugs combined without even mentioning tobacco.⁽²³⁾ Yet there is a deep split in the social mind. We make a sharp distinction between the acceptable and legal drugs that are deeply ingrained in the culture like nicotine and alcohol and the unacceptable drugs that we criminalize. Any sensible, effective policy concerned to improve health and societal welfare, however, will have to take them altogether. Legalization of currently banned drugs is simply not politically possible at the moment. Making tobacco and alcohol illegal is totally out of the question. Legalization - placing cocaine, heroin, and the like in the same category with tobacco and alcohol - ought to be the long-term goal, but it is not the place to start. Marijuana ought to be shifted into the legal group now, but even that is not likely soon.

It is hardly possible that legalization could produce a situation worse than the one we have now. Many on both sides of the debate agree that legalization initially would probably produce an increase in usage and therefore social harm. The great unknown is how much would occur. This is the crucial question, and we do not know what the full consequences would be in terms of damaging consequences and our ability to reduce it. In all likelihood it would not result in the numbers of users and the costs in money and lives now associated with tobacco and alcohol. The reason is simple. Tobacco and alcohol enjoy wide acceptance and have been deeply incorporated in the culture over a long period of time, whereas most people disapprove of the currently banned substances such as cocaine and heroin. It is highly improbable that legalization would fundamentally change this, although some upswing in consumption and damage might result at first. Legalization would be disastrous unless accompanied by vigorous, unrelenting measures aimed at prevention and treatment along with efforts to ameliorate the complex network of destructive conditions that contribute to drug usage and commerce. If drugs were legalized and the funds now used to fight the drug war on the criminal front diverted into these endeavors along with other investments as necessary, it would, I believe, gradually produce an outcome that is far better than the mess we now have. Reduction of harm is the best we can hope for. Total elimination of the problem is not likely for a long time if ever.

If legalization is not an option for the moment, then a gradual shift of emphasis and resources may offer a better prospect for making gradual changes for the better. Steps that ought to be considered now include the following:⁽²⁴⁾

1. Eliminate mandatory sentences with no chance of parole for nonviolent offenders.⁽²⁵⁾

2. Police, prosecutors and judges should be given flexibility so that nonviolent offenders who are addicted to alcohol and drugs can be diverted from prison into treatment, drug courts, coerced abstinence, or other programs.

3. Make full use of prison-based treatment programs to all who need it and give incentives, such as reduced prison time, to inmates who successfully complete treatment.

4. Along with drug treatment, rehabilitation efforts for prisoners should include literacy training and community-based aftercare services, including assistance with housing, education, employment and medical care.

5. Make a major investment in treatment research and other programs that deal with the biological, economic, social, cultural, and psychological risk-factors associated with beginning and continuing cigarette, alcohol, and drug use.

6. It would be advantageous, although out of the question politically at the moment, to forbid the advertising of tobacco and alcohol. Since the immense damage they do is totally out of proportion to all other drugs combined, that would be the least that ought to be done to limit the havoc associated with them. It is a goal toward which we should work.

7. Clean needless should be made available to intravenous drug users. Dirty needles spread HIV, but they are shared because laws prohibiting drug paraphernalia make sterile needles hard to find. These laws are promoting disease and death. "In New York City, more than 60 percent of intravenous drug users are HIV positive. By contrast, the figure is less than one percent in Liverpool, England, where clean needles are easily available."⁽²⁶⁾

Let me conclude by noting again how difficult policy options are on this issue. Choice is not simply related to general political ideology. Prominent conservatives like the economist Milton Friedman⁽²⁸⁾ and William F. Buckley, Jr., editor of National Review,⁽²⁹⁾ for example, argue for legalization. Controversy rages over on the crucial question as to whether legalization would produce a worse situation overall than the one we now have. However, the consensus among knowledgeable authorities with no vested interests but genuinely concerned to find a wise, beneficial strategy is that present policies are badly deficient. They contend that a major shift toward prevention and treatment is urgently needed. Even those who think legalization would be disastrous agree on that point. Many policy options exist between continuing the present focus on law enforcement and heavy prison sentences, on the one hand, and full legalization, on the other hand. Although legalization is not a political possibility at the moment, steps toward decreasing emphasis on crime and punishment and increasing efforts at prevention and treatment may be. But even if this is to occur, a major public relations war has to be won with popular opinion, which is now way out of step with the facts and evidence in the case. We cannot expect much leadership from politicians. Too many of them are bound by political expediency and immediate self-interest. Only when reformers begin to win the argument in the minds and hearts of a substantial majority of voting citizens at the grass roots will any hope of changing things for the better appear on the horizon of political possibility. ⁽³⁰⁾

2. Robert L. Dupont and Eric A Voth, " Drug Legalization, Harm Reduction, and Drug Policy," Annals of Internal Medicine, 1995, 123, 461-5.

3. Ibid.

4. ABC World News Tonight (September 16, 1999).

5. Robert J. Blendon and John T. Young, "The Public and the War on Illicit Drugs," Journal of the American Medical Association (March 18, 1998), vol. 279, no. 11, 827-32. Also see, "Principles for Practical Drug Policies," a report given at a press conference in Washington, D. C., sponsored by the Federation of American Scientists, September 2, 1997.

6. According to the National Institute on Drug Abuse, National Institutes of Health, US Government, "For every $1 spent on drug use prevention, communities can save $4 to $5 in costs for drug abuse treatment and counseling." A two-year study of more than 10,000 cocaine and heroin users done by the National Institute on Drug Abuse (NIDA) showed that four treatment programs stopped abusers from committing crimes and helped them hold full-time jobs. The study found that methadone clinics for heroin users, outpatient behavioral therapy, long-term residential treatment, and short-term inpatient treatment proved to be "extremely effective." According to the NIDA study, methadone treatment reduced heroin use by 70 percent. Alan I. Leshner, Ph.D., director of NIDA, says that effective drug addiction treatment strategies must take into account all aspects of addiction, "including biology, behavior, and social context treatments." He also says it's important to remember that treatments must be matched to the individual, that they are based on science, and that they work.

7. "National Treatment Improvement Study," Substance Abuse and Mental Health Services Administration (September 1997), a Congressionally-mandated study.

8. Physician Leadership on National Drug Policy, a group of medical and public policy experts at a news conference on March 17, 1998, Washington, D. C., reporting the results of an analysis of 600 studies. According to the Office of National Drug Control Policy, the Federal spending on drug control programs has increased to $17.0 billion (requested) in fiscal year 1999.

Fiscal 1997 and 1998 Federal drug control budget by function in 1998:

Drug treatment $2,885,600

Drug prevention $1,926,400

Criminal justice system $8,187,200

Estimated totals of top 7 arrest offenses

United States in 1997:

Total arrests 15,284,300

Drug abuse violations 1,583,600

Driving under the influence 1,477,300

9. Kenneth Sharpe, Drug War Politics: The Price of Denial (Berkeley: University of California Press, 1996).

10. "The stunning finding of this analysis is 80 percent of the men and women behind bars - some 1.4 million individuals - are seriously involved with drug and alcohol abuse and the crimes it spawns. These inmates number more than the individual populations of 12 of the 50 United States. Among these 1.4 million inmates are the parents of 2.4 million children, many of them minors." Quoted from "Behind Bars: Substance Abuse and America's Prison Population," The National Center on Addiction and Substance Abuse, Columbia University, January 8, 1998. Other studies give a figure of from 50% to 60%. Apparently the discrepancy is related to what is counted an offense related to substance abuse and whether alcohol is included along with other drugs.

11. Ibid.

12. See an article by Erich Schlosser in The Atlantic Monthly (June 1997), quoted "A Sane Drug Policy," The Progressive (October 1999), 8.

13. The majority of jails provide some form of drug treatment or counseling. See Bureau of Justice statistics at: http://www.ojp.usdoj.gov/bjs/dcf/dcb.htm

14. Quoted in "A Sane Drug Policy, 8.

15. David Cole, No Equal Justice: Race and Class in the Criminal Justice System (New York: The New Press, 1999).

16. This paragraph combines information taken from two reports: "Race and Drugs: Perception and Reality New Rules for Crack Versus Powder Cocaine" by Barry R. McCaffrey, Director of the Office of National Drug Control Policy and "Crack Cocaine Sentencing Policy: Unjustified and Unreasonable. A Report from the Sentencing Project." The first can be found at:

http://www.whitehousedrugpolicy.gov/news/commentary/washington.html

The second can be found at: http://www.sentencingproject.org/brief/1003.htm

17. See Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics, Washington D.C.: Bureau of Justice Statistics (1996), 501, Table 5.50.

18. This paragraph is taken almost verbatim from a report of The Sentencing Project by "Does the Punishment Fit the Crime? Drug Users and Drunk Drivers, Questions of Race and Class" by Cathy Shine and Marc Mauer (1993). See: http://www.sproject.com/rep6.htm

19. "Drug Legalization, Harm Reduction, and Drug Policy."

20. "Drug Legalization, Harm Reduction, and Drug Policy."

21. "Drug Control: Observations on Elements of the Federal Drug Control Strategy," Report of the General Accounting Office, GGD-97-42 (March, 1997).

22. "Legalization: Panacea or Pandora's Box?" Report of the Center on Addiction and Substance Abuse, Columbia University, September 1995).

23. The economic cost to society from alcohol and drug abuse was an estimated $246 billion in 1992. Alcohol abuse and alcoholism cost an estimated $148 billion, while drug abuse and dependence cost an estimated $98 billion. This information was supplied by the Office of National Drug Control Policy web site. See http://www.whitehousedrugpolicy.gov

24. These suggestions are deeply indebted to "Behind Bars: Substance Abuse and America's Prison Population," a report from The National Center on Addiction and Substance Abuse, Columbia University, January 8, 1998.

25. See a report from The Drug Policy Research Center (DPRC). "Mandatory minimum sentences are not justifiable on the basis of cost-effectiveness at reducing cocaine consumption, cocaine expenditures, or drug-related crime. Mandatory minimums reduce cocaine consumption less per million taxpayer dollars spent than does spending the same amount on enforcement under the previous sentencing regime. And either type of incarceration approach reduces drug consumption less than does putting heavy users through treatment programs, per million dollars spent. Similar results are obtained if the objective is to reduce spending on cocaine or cocaine-related crime. A principal reason for these findings is the high cost of incarceration." "Mandatory Minimum Drug Sentences: Throwing Away the Key or the Taxpayers' Money"?, by Jonathan P. Caulkins, C. Peter Rydell, William L. Schwabe, and James Chiesa, RAND MR-827-DPRC, 1997.

26. "Against Drug Prohibition," ACLU Briefing Paper at: http://aclu.org/library/pbp19.html

28. "The path you (Bush Administration) propose of more police, more jails, use of the military in foreign countries, harsh penalties for drug users, and a whole panoply of repressive measures can only make a bad situation worse. The drug war cannot be won by those tactics without undermining the human liberty and individual freedom that you and I cherish." The Wall Street Journal, Thursday, September 7, 1989.

29. National Review (February 12, 1996) gave the conclusion of the magazine that the time had come to revise our laws on drug trafficking that (1) the famous drug war is not working; (2) crime and suffering have greatly increased as a result of prohibition; (3) we have seen, and are countenancing, a creeping attrition of authentic civil liberties; and (4) the direction in which to head is legalization, whatever modifications in kind, speed, and variety commend themselves in study and practice.

30. Present federal government policy is indicated by the following statement from the Office of National Drug Control Policy: "Chronic, hardcore drug use is a disease, and anyone suffering from a disease needs treatment. But many addicts also are criminals who infringe on or violate the rights of others. In these instances, a balance should be created between sanctions for criminal activity and treatment of an addictive disease. There is compelling evidence to support the fact that treatment is cost-effective and provides significant public safety benefits by breaking the cycle of drug use and crime. However, criminal acts must be punished, and tough sanctions often are needed to force drug-addicted criminals to stop using drugs and committing crimes. The National Drug Control Strategy calls for drug treatment and tough, punitive sanctions to be used in a coordinated fashion to improve public safety and to give chronic, hardcore drug users a chance to recover from addiction." An excellent government source of information and statistics about the problem of drugs can be found at: http://www.whitehousedrugpolicy.gov/