Monday, June 13, 2011

Is It Time To End The War On Drugs?

America is now involved in three or four undeclared foreign wars (depending on how you count). But America's longest war still goes on. In 1971, President Richard Nixon went on national television to declare that if we didn't destroy the drug menace, it would surely destroy us.

Since then, the number of dead, dying and injured, along with armed clashes on both sides of the Mexican border may not be a war, but it certainly looks a lot like one. If we take the favorite expression of the left regarding war--"quagmire"--this makes our other wars, including the current ones, look like a brief walk in the park. Every once in awhile, a conservative writer will argue that the war has been lost. Most recently from my perspective is an article from an old occasional ally, occasional nemesis Debra Saunders at the San Francisco Chronicle. Her June 12 article was entitled "At Least 4 Good Reasons To End the War on Drugs."

As one observer of war said: "Every war plan is perfect, until the shooting starts." That seems to apply to the war on drugs. Nixon's original proposal was for $155 million federal dollars in anti-drug funding, but set aside $115 million of that sum "solely for the treatment and rehabilitation of drug-addicted individuals." Saunders used some of the standard arguments for ending the war on drugs, but to start with, she does point out that drug use is up, 118 million Americans have used illegal drugs, and the cost of prosecuting the drug war and offenders continues to mount.

I am most definitely not an advocate for drug legalization. But Saunders's article got me thinking that the states seem to be much better at handling their drug problems than the federal government. Drug use and abuse is neither monolithic nor the same from state to state. Federal assistance in preventing drug importation may be a great deal more useful in the border states than in the interior states. We now have at least three Presidents who have hinted at or admitted to drug use themselves, though naturally they wouldn't touch the stuff now. Leaving the drug war to the federal government alone is an exercise in unthinking silliness.

Since its inception at the federal level, the war on drugs has produced 900,000 criminally-active gang members representing more than 20,000 gangs devoted exclusively to mid-level and retail drug distribution. The federal government is best at handling the top-level wholesalers, importers and cartels, but usage and abuse of drugs happens locally, a matter best handled by the states. The drug-related crime rate in DC itself is a pretty good indication of how bereft of good ideas the federal authorities actually are. And the federal government dictates terms to the states which result in some very odd results.

Most recently, the US Supreme Court ordered the release of a huge number of California prison inmates because of overcrowding. Yet a sizable percentage of those "overcrowded" prisoners are in prison in the first place for possession and/or use of illegal drugs. But if California wants those federal funds for its law enforcement divisions, it has to adhere to the draconian drug laws set out in the 1986 Anti-Drug Abuse Act, including mandatory minimum sentences. Very little wiggle room is left for the states to use alternate means of dealing with drug abusers. Legalization is not the answer, but look at California to see what happens if you send them all "up the river" for lengthy periods of time.

One of the arguments in favor of legalizing recreational drug use is that it will produce a net gain in government revenue received. That is hard to prove, but if all states are required to adhere to the same rules, we'll never know. Harvard economist Jeffrey Miron says that in 2008 legalizing drugs would have saved federal, state and local authorities $44 billion per year while bringing in $33 billion if the drugs were taxed. Sounds good, but how can that be proven as long as the federal government holds a tight rein on the states' ability to "get creative" with mixed prosecution, diversion, treatment and alternate forms of detention? As it currently stands, those figures are simply pulled out of a hat.

Worst of all, those advocating legalization use facts and figures almost entirely related to marijuana in order to avoid discussing the far more serious societal problems caused by use of hard drugs. They also bring up individual rights, as if use of cocaine or heroin is a "right" comparable to having a few too many beers on a hot Sunday afternoon. But as long as the federal government determines which drugs could be safely decriminalized in order to alleviate enforcement and incarceration problems, we'll never be able to test what works and what doesn't. It's also important to note that decriminalization and legalization are not the same thing.

California and thirteen other states have made simple possession of small amounts of marijuana an "infraction" (not a crime) which does not allow the user to go scot-free. Eventually, a youthful infraction can be expunged from the public record, and there's no public criminal record to follow the youthful mistake into responsible adulthood. Former Baltimore narcotics cop Neill Franklin says: "President Obama needs to think about where he would be right now had he been caught with drugs as a young black man. It's probably not in the Oval Office, so why does he insist on ramping up a drug war that needlessly churns other young black men through the criminal justice system?" I am the last person to use the word "racism" loosely, but there has traditionally been a strong racial element in prosecution of drug sales and use, particularly in the matter of crack cocaine versus powder cocaine.

I come away from Saunders's recitation of facts and figures with a different conclusion from hers. She appears to be ready to surrender and declare a victory. But that doesn't seem like the right conclusion to be drawn. Perhaps it is simply that the war is being micromanaged from Washington DC instead of leaving the daily decisions on how, when and where to fight to the field commanders (the states). Policy wonks and elected politicians far from the battlefield are not the best people to be deciding how to handle the daily logistics of fighting a war with numerous fronts.

Perhaps the federal government could stick to enforcing interstate and intercontinental drug manufacturing and transport law, and loosen up the rules restricting the states from considering, writing and enforcing their own drug laws, including which drugs remain forbidden and which are decriminalized or even legalized. It wouldn't be an easy transition, and there would be many problems. Some states would opt to retain rigid drug laws exactly as they are today. Others would likely modify the rules, decriminalize certain drugs and regulate their use, while others would go off the deep end and legalize pretty much everything. But those decisions would be back in the hands of the people instead of distant federal legislators, "experts," czars and bureaucrats. It would finally transform theory into practice, allowing us to see if any theory other than rigid prohibition and enforcement would lower the human and financial toll of the war.

Before the federal leviathan swallowed up the prerogatives and rights guaranteed by the Tenth Amendment to the Constitution, the states were known as the crucibles of experimentation and inventiveness. It could turn out that the federal war on drugs is the right one, but we will never be able to be sure if there is another way so long as the states are forbidden to do that experimentation.

We have touched on this subject in the past, directly and indirectly. To review those articles, go to our Index, and click on "drugs."

17 comments:

Koshcat said...

Yes.

I think the federal government oversteps its authority by dictating to the states what is a crime and how it should be prosecuted. The DEA can have its list of drugs they believe have no medicinal benefit. What is bizarr is that the feds want to micromanage marijuana use in San Fransisco, which is not a power dictated by the constitution, and not better control the borders, ports, and shores, which is.

Tehachapi Tom said...

Hawk
One drug is allowed to be regulated by the States as each sees fit. That drug is alcohol. There is a Federal tax on alcohol as well as each State applies it's own tax. Age requirements are totally left to each State to identify and enforce.
As you point out it would be difficult to lump some of the hard drugs into that format. Yet if, as you say, each State had the same controls we might find one or more could show a better way for the rest.

Tennessee Jed said...

Another fine article. One very interesting fictional take on this particular "war" is the most recent novel by Frederick Forsyth (Day of the Jackal.) This latest effort titled "The Cobra" lays out an interesting scenario when President Obama decides to "ramp up" the war on drugs with (surprise) unforseen results. A good summer time read.

LawHawkRFD said...

Koshcat: That's part of the inconsistency that makes a whole lot of us suspicious of federal authority. They ignore the Cityof San Francisco proclaiming itself a sanctuary city, continue to lavish federal funds on the City where illegals are hiding out and committing repeat felonies because the City won't turn them over to the feds, but they'll spend millions to stop a pothead from lighting up.

LawHawkRFD said...

Tehachapi Tom: The anti-prohibition argument regarding alcohol is the one most commonly used by drug legalization advocates, but it's an imperfect analogy at best. They tend to forget how heavily regulated and taxed alcohol is. But we have thousands of years of experience with alcohol, including the actual benefits of moderate drinking. Once the heavy drugs became more widely available than they had been in the past, draconian laws were passed. We simply don't have the lengthy experience with those that we have with alcohol. The war on alcohol failed, but not necessarily for identical reasons. Still, there was at least one common element--national federal criminalization and enforcement.

Koshcat said...

Tom,

Actually, the feds do dictate to the states regarding drinking age. This was an area of contention several years back with the feds threatening to withhold highway funds if the state didn't raise the age limit to 21. I remember this very well as the drinking age in Montana was 19 and was raised just a few years before I was to be of age. They have used the same tactic with seat belt laws and speed limit. I think it is a practice close to extortion, but the courts have upheld the practice.

LawHawkRFD said...

Tennessee: Thanks for the tip. I'll look for the book. Another argument we hear all the time now is that Obama, Bush, Clinton et al are hypocrites for pushing the war on drugs. Maybe yes, maybe no. Even hypocrites get things right once in awhile. And maybe they truly saw the error of their ways and want to keep others from making the same mistakes. I'm not questioning the deleterious effects of the recreational use of drugs such as cocaine, heroin, and crystal meth. I'm just questioning the "war on drugs" model in its current form. It's too expensive in human and monetary terms, it's gone on too long, and it has been at best marginally successful.

I wish I had the answers all neatly wrapped up in a simple, coherent package, but I don't. I'm against the legalization of hard drugs, uncertain about the decriminalization of marijuana, and for more education, rehabilitation and medical treatment of low-level offenders rather than imprisonment. Beyond that, I defer to others.

LawHawkRFD said...

Koshcat: The federal leviathan is running the biggest extortion racket in American history. It's almost lyrical. Or maybe it's closer to a protection racket. Robbin' Sam forces you to give him your money so he can give you federal protection. Then he squanders most of it, but says he'll give you some of what little is left of it back, but you have to do what he says first.

AndrewPrice said...

The drug war needs to be refocussed, there is no doubt about that, but the states can't do it alone because the drug industry is a massive interstate undertaking that is simply too powerful for states to handle effectively in isolation. What they need to do though is reform sentencing to shift small time possession into mandatory treatment and community service rather than jail and bootcamps for repeat offenders. Then they should increase sentences for bigger dealers.

LawHawkRFD said...

Andrew: I tried to emphasize that there are large elements of the drug problem that really do belong in the federal sphere--just not all of it. Each state needs to be able to deal with the criminal sanctions and diversion programs in their own way. The whole concept of federalism is that the national government has its limited responsibilities and the states get the rest (that used to be the lion's share).

The key word you used that gives the federal government the power to exercise its authority is "interstate," and I agree that the feds have a duty and a responsibility in that arena, specifically granted to it by the Constitution. How they want to handle arrest, prosecution and criminalization/legalization/decriminalization should be left to the states so that we can see which approaches work and which don't. Interstate trafficking is beyond the scope of state powers, but use and abuse occur locally. Leave that to the states.

I also agree with you on the big dealers. In fact, I think the federal sanctions for interstate manufacturers and transporters of dangerous drugs are not draconian enough.

StanH said...

I guess I’ll be the turd in the punchbowl. As a Republican and a small “l” Libertarian. The drug war is as dumb as a sack of hammers. I know the Prohibition argument falls short, however as a barometer, and a reasonable comparative view, in my opinion, it works quite well. Prohibition gave us Al Capone, and friends, The Drug War gave us The Mexican Drug Cartel, and friends. Prohibition gave us Speakeasies, TDW gave us crack houses. I could keep listing the similarities. Decriminalize or legalize, and regulate the same as booze, and the same fools that do dope will continue, and cops and politicians can perhaps focus on more important issues. However, it will never happen, entire industries have been set up around the drug war, and positions are so set, real reform will only come if the entire system collapses, and we start over again.

LawHawkRFD said...

Stan: Even though I don't entirely agree with you, I see considerable truth in your argument. I'm not an absolutist in either direction. I do know the "war" as it is presently being fought is not working. I agree with Andrew that there comes a point where "private behavior" deeply and negatively affects public safety. For instance, there is simply no medical, legal, societal or moral reason to legalize crystal meth. Drinkers of alcohol occasionally go antisocial and turn dangerous. Crystal meth users always do. Heroin users are useless to themselves, harmful to their families, and if we make heroin use legal, we'll have an even bigger public problem than we have now. I worry far less about marijuana, and even have some doubts about cocaine. The problem is far bigger and more complicated than a simple "legalize it all" versus "make it all illegal." That's why I want to see the states given more latitude to experiment while the federal government continues to deal with the interstate and foreign import problem--particularly the cartels.

I guess I come back to my view that there is no such thing as an entirely "victimless" crime. There are only degrees.

Joel Farnham said...

LawHawk,

Actually, if the courts would enforce the drug laws on the books, I would be happy. Not add new ones and not water down the sentences.

Also, I would like people to know the recidivism for abusers. It probably would show that abusers would be better off in jail than rehab.

patti said...

when i hear the phrase "the war on drugs" i find it laughable and as ineffectual as stopping teenagers from engaging in sex. just in the last year i have seen more young people have their lives torn apart by drugs than at any other time in my life. the "war" isn't working.

LawHawkRFD said...

Joel: Sorry to be slow in responding. I had to go up to my daughter's spread to slop the hogs. Well, actually hogs are about the only thing they don't have, but they're on vacation for the next nine days, so I'm the designated farmer/rancher.

The statement about enforcing current laws instead of writing new ones is an ongoing problem, and not just in the war on drugs. I would have to decide on what level the accused is involved, what the rpeeat offense is, and what direct harm is being done to society before I signed on to enforcing all the current laws as the presently exist.

A repeat cocaine or meth abuser who robs or steals to pay for his habit bothers me a lot more than a repeat stoner who went overboard a few times on weed. One's a menace to society, the other is a pain in society's butt.

LawHawkRFD said...

Patti: I agree, but I also see that simply leaving drugs alone is not a viable option either. Of course, one thing we can't mandate is good parenting, and that has been something largely AWOL for a couple of decades now. Access to excess, and nobody to tell them to stop (or else). By the time they get into the system, it's often too late. Indiscriminate teenage drug use, just like indiscriminate sex, is a problem that government cannot solve without serious parental involvement. The prison these kids create for themselves is far more nightmarish than any stone walls and guard towers can accomplish.

USS Ben USN (Ret) said...

Great post, LawHawk!

I concur irt giving the states back more rights.
This is a complex and multifaceted problem as you said.

One thing I would love to see besides harder time for dealers/manufacturers is a war declared on the cartels (In the same vein as Tom Clancy's Clear And Present Danger.

We should treat the Cartels like we do Al Qaida.
If they aren't a terrorist organization than what's the main difference between them?
They both spread death and destruction to families and society.

It wouldn't solve all the problems but it would go a long way in mitigating the damage and costs related to heavy drugs.

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