03 October 2011

Raising the White Flag: Why We Should Give Up on the War on Drugs

As part of my undergraduate work I wrote a piece on the drug war to satisfy a research writing requirement.  I stumbled upon it today and decided to post it here.

Every time I look at my college work I'm consistently astounded at my accomplishment -- not necessarily at the quality that was produced, but at the sheer amount of effort that was exerted.  You'll notice that this piece is considerably more detailed than my other posts, and it's fully cited.  I simply don't have the time or inclination to put that much effort into this sort of thing now, though I wish I did.  I'm totally astounded by bloggers around the globe who make this sort of effort on a nearly daily basis -- frequently without compensation.

This piece, owing to its genesis as the satisfaction of a research writing requirement, is an argument for ending the "War on Drugs" primarily on pragmatic grounds.  Although it appeals to emotional and philosophical sentiments, it looks at the effects of the drug war, as evidenced by primary and secondary sources, and suggests that the results are not worth the costs.  But it should be pointed out that I think the drug war can be refuted purely on philosophical and ethical grounds: It is simply wrong, as a violation of the non-aggression principle.  End of story.  I mention this lest someone get the idea that I'm one of those consequentialist libertarians.  Regardless, most libertarian policy wonks out there make consequentialist arguments (and very good ones), and it doesn't hurt to make arguments that are more tangible to those who might consider themselves more rational, pragmatic, realistic, or even statist, and are less amenable to philosophical and ethical arguments.

[sorry for the formatting, but this is being copy+pasted from Word and I don't have time to figure out how to make the formatting come out right in blogger]

Raising the White Flag: Why We Should Give Up on the War on Drugs

In 1968, frustrated by the ineffectiveness of the drug prohibition laws in reducing drug use and abuse, and in response to the continued existence and escalation of organized crime related to the black market, President Richard Nixon established what he called the “War on Drugs,” in an effort to stop the “plague” that was “decimating a generation of Americans“ (Baum 12).  Apparently the unfortunate language describing this effort as a war did not strike Mr. Nixon as particularly problematic.  Perhaps if he had considered whom he was declaring war against he might have reconsidered.
But the President wasn’t the only one supporting this war.  In another context, the significance of this declaration might not have been lost on the people of the United States.  But irrational fear of the perceived destructive power of drugs has apparently blinded us to reality.  Perhaps because we believe, as former DEA agent Michael Levine believed, that drug abuse is “the number one national security threat,” our fear prevents us from asking the question: Who is the enemy (Levine 40)?  And since we don’t ask, we don’t learn that if we accept the analogy of war, then we must also be willing to accept that it is a civil war that we have been waging against ourselves.  In executing this War on Drugs, the federal government spent roughly $30 billion on drug enforcement in 2000.  That’s twice the amount spent on the Desert Storm operation, yet we cannot even measure our success, let alone declare victory (McNamara “Defensive” 63).  To the contrary, there is considerable evidence to suggest that the war on drugs has succeeded in increasing the harmful effects of drug use to users and to society as a whole.
The war on drugs is a war against the sovereignty and the health of the individual.  The very concept of using law enforcement to attempt to stop drug abuse is a departure from traditional law enforcement goals and methods, and brings with it an entirely new issue.  Inherent in the process is the need to attack individuals based on their behavior, despite the lack of a direct victim.  In a report to the judiciary committee of the Connecticut General Assembly, the Connecticut Law Revision Commission (CLRC) states:
Traditional law enforcement punishes and deters antisocial conduct by a wrongdoer against a third party…. The case of a user of illicit substances, however, must be analyzed differently [since] there is no direct third-party victim of the substance user. (10)
In the CLRC’s analysis, the “reason for prohibiting illicit substances is to [protect] users and potential users from themselves” (10).
If this is true, this view of prohibition has rather significant implications for public policy and law enforcement methods.  Although there are some exceptions, generally our society does not take this attitude toward other self-destructive behavior.  And one might wonder whether this policy is necessary given that statistics make a weak case at best for the idea that drug use significantly harms the user.  In 1998, the Drug Abuse Warning Network reported just nine Ecstasy-related deaths out of “millions” of doses taken (Sullum 33).  The CLRC admits, “A significant number of heroin users apparently remain unaddicted and continue to lead normal lifestyles…. For marijuana in particular, the evidence of long-term detrimental health effects […] that might justify incarceration to protect the user from harming himself, is weak” (13).  This should not be taken to mean that drug abuse is not harmful at all, but it should call into question whether or not the actual effects of drug abuse are sufficient to warrant the actions being taken in response, particularly when balanced against the results of those actions.
If we ignore the evidence and accept the commonly held belief that drug use is detrimental enough to the user to warrant the current prohibitive policy, it should be reasonable to expect to see some significant, positive results from our efforts.  The evidence does not live up to that expectation.  Between 1975 and 1995, about 82% of high school students said they found marijuana “fairly easy” or “very easy” to obtain, and about 50% of students in 1995 said they had tried illegal drugs before they graduated high school.  One high school student even said in 1993 that he found it easier to obtain illegal drugs than to obtain alcohol (Boaz 2).
In an analysis of the Dutch drug policy, professors Robert J. MacCoun and Peter Reuter found that increasing drug law penalties in the U.S. War on Drugs “has led neither to increased price nor reduced availability” (47).  MacCoun and Reuter compare drug use rates between the U.S. and The Netherlands (where drug use and possession in small amounts is tolerated), and find that the rates are “comparable,” suggesting simultaneously that decriminalization will not lead to a significant increase in use, and that strict prohibition does not curb use (49).
The federal government’s own reports suggest a failure of the War on Drugs to achieve any significant reduction of drug supply or use.  In a December 2001 report entitled, “What America’s Users Spend on Illegal Drugs,” the U.S. Office of National Drug Control Policy shows that the number of methamphetamine users increased between 1988 and 2000 (23), and that the amount of heroin consumed per year has remained more or less level, despite massive increases in law enforcement efforts (19).
Furthermore, the effects that the drug war has had have been detrimental to the user, rather than helpful.  The CLRC finds that one of the side effects of the drug war is that users could potentially be exposed to “greater risks.”  Since drug users under prohibition can only get drugs from illegal sources, “they do not have access to substances of known quality and potency” (11).  Some private U.S. labs have conducted studies that show that as many as 33% of ecstasy pills on the black market are “bogus” (Sullum 33-34).  The result is the potential for the user to obtain “cut” drugs—drugs that have been mixed with other substances to increase the dealer’s profits.  Some such substances are benign, but some can be deadly.  Additionally, the clandestine nature of drug production means the labs in which the drugs are created are not necessarily controlled for quality.  Errors in production can lead to some drugs being hazardous right off the production line.  The CLRC goes on to state that the costs introduced by the pharmacological effects of drug use “appear to be significantly less than the cost of incarceration.”  Even for self-destructive users, they say, “it is not clear that criminal law enforcement generally confers a benefit….  By any standard, the cost of criminal law enforcement to the persons incarcerated is enormous in terms of lost liberty and lost economic opportunity” (Connecticut 11-15).
Associate Policy Analyst for the Cato Institute, David B. Kopel finds that seventy percent of inmates incarcerated in federal prison for drug-related crimes have no history of violent crime, and fifty percent are first time offenders (9).  According to the U.S. Bureau of Justice Statistics, almost 50% of federal drug convictions in 1999 were of people who had no prior record, and only 13% had a prior history of violent crime (“Federal” 6).  These statistics don’t prove a link between incarceration and harm to the individual who is incarcerated, but they do point out that a huge percentage of our federal prison inmates have otherwise clean records if you ignore drug convictions.  If the only problem an individual is having related to drugs is that they are being incarcerated based on prohibition laws, then the problem is the law—not the drugs.
In addition, incarcerating otherwise peaceful and law-abiding individuals, based on discretionary acts that have no direct negative impact on others, might be generating more criminals.  The Bureau of Justice Statistics unwittingly testifies to this in a 1994 report titled, “Drugs & Crime Data.”  In an interesting twist of logic they state, “Drugs are related to crime” in that they “generate […] violence and other illegal activity in connection with drug trafficking.”  But later in the same report the BJS admits that some drug-related crime may actually be due to the drug laws themselves: “Illegal activity is increased because drug users […] are exposed to situations that encourage crime” (“Drugs” 1).  This implies that the exposure to crime that the user experiences, as a result of black market conditions due to prohibition, actually induces the user to commit other crimes.
Ultimately the BJS concludes, “Drug trafficking generates violence” (3).  This statement does not try to suggest that the pharmacological effects of drug use generate violence, but only that drug trafficking does.  Furthermore, the way this statement is worded misleads the reader.  By testifying that “drug trafficking” generates violence, the BJS is expecting the reader to forget that all black market trafficking generates violence since the participants in such a market have no legal recourse for settling disputes (Boaz 3).  Most “drug related” violent offences are turf wars, robberies, and other offenses generated as a result of this lack of peaceful dispute resolution.  In one survey of New York City drug related violent offenses, only 26 of 218 could be linked to the pharmacological effects of drugs—the rest were drug war induced (Kopel 30).
Unfortunately, such statistics cannot be derived from the BJS report because their definition of “drug-related offenses” lumps crimes resulting from the pharmacological effects of drugs in with all other drug related crimes, making it impossible to differentiate drug-induced crime from crimes committed as a result of black market conditions (“Drugs” 1).  Whether this is intentional deception or simple incompetence, the result is that the U.S. government avoids acknowledging that it is actually the drug laws themselves that generate violence—not merely drug trafficking.  However dubious the BJS conclusions are, their findings do point to one solid conclusion: the drug laws are detrimental to the user in that they expose the user to crime, thereby increasing the chances that a crime will be committed against them, or even that the user will be induced into a criminal lifestyle.
When faced with this evidence, supporters of the War on Drugs usually point to the supposed benefits the effort provides to society as a whole.  By removing drugs and drug users from society, the argument goes, we are preventing people from committing crimes—people who, we assume, would undoubtedly do so.  However, there is little evidence to suggest any level of success in this effort.  On the contrary, there is significant evidence to suggest that the War on Drugs has significantly harmed society.
At its core, the protection of society argument has a single, monumental problem: it tramples on our civil rights by making the assumption of guilt before a crime has been committed.  As Steven Wisotsky states in a Cato Institute Policy Analysis, “the War on Drugs is, by its very nature, a war on the bill of rights.”  If, as we have already established, about half of all federal prisoners incarcerated for drug violations are first-time offenders and have no prior record, and if, as the CLRC has found, a “minority of drug users degenerate to committing socially destructive acts,” then what we have actually done in the War on Drugs is to institutionalize presumption of guilt, in contradiction to presumption of innocence (14).  Drug offenders are incarcerated because we presume that they will commit crimes at some point in the future – not because they have actually done anything to warrant incarceration.
Aside from the de-facto civil liberty violations that are the drug laws themselves, there are severe examples of civil liberties abuses perpetrated by law enforcement officials in pursuit of drug offenders.  The CLRC suggests that this is due to the lack of a “natural informant” (usually a victim).  Instead of being able to rely on a third-party to provide a complaint and evidence, prosecutors and law enforcement have to resort to unethical and illegal methods in order to catch people.  The CLRC says these illegal methods include documented cases of perjury, property seizure without the benefit of trial, and bribery, among others (21).  Former police chief, Joseph McNamara agrees, citing his own experience in which “police […] resort to informants and illegal searches” in the effort to catch drug offenders.  He continues, “[In 2001] there were 1.4 million drug arrests.  Almost none of those arrests had search warrants.”  To get around the need for search warrants, police officers frequently provide false testimony about illegal searches they have performed.  Mr. McNamara says, “Sometimes the officer reaches inside the suspect’s pocket […] and testifies that the suspect ‘dropped’ [the evidence] as the officer approached.”  This form of Constitutional abuse is so commonly practiced that it has been dubbed, “white perjury,” by the officers that perpetrate it (“Battlefield” 38-39).
Other former participants of the War on Drugs are also speaking out publicly about abuses.  Judge James P. Gray has presided over thousands of drug-related court cases.  He says, “it used to be illegal for a police officer, even after arresting you, to search anything that was outside of your grasp.  That,” he says, “has been totally reversed” (30).  Former DEA agent, Michael Levine agrees, saying, “There is no U.S Constitution anymore when it comes to the drug war” (Levine 42).  Levine cites two examples that make his case, illustrating that civil rights violations have become progressively worse since the early years of the War on Drugs.  In 1973, three drug enforcement agents broke down the wrong door in a bust in Collinsville, Illinois.  In alignment with the proper function of our judicial system, those agents were successfully prosecuted for civil rights violations.  In contrast, Levine cites a mid-1980s case in which a Mr. Donald Carlson had his home raided by a “multi-agency task force,” “on the word of an uncorroborated informant.” In the process of raiding Mr. Carlson’s home the agents found no evidence whatsoever, but shot him dead anyway.  Although the participating agents were put on leave for a time, pending investigation, they were eventually reinstated and actually promoted (40).
Perhaps the civil liberties violations induced by the War on Drugs are best addressed by a surprising majority opinion offered by the Ninth Circuit Court of Appeals:
[T]he drug crisis does not license the aggrandizement of governmental powers in lieu of civil liberties.  Despite the devastation wrought by drug trafficking in communities nationwide, we cannot suspend the precious rights guaranteed by the Constitution in an effort to fight the War on Drugs…. If the zeal to eliminate drugs leads this state and nation to forsake its ancient heritage of constitutional liberty, then we will have suffered a far greater injury than drugs ever inflict upon us.  Drugs injure some of us.  The loss of liberty injures us all. (qtd. in Wisotsky)
Despite this public majority opinion offered by a federal court, the civil rights abuses in the War on Drugs continue, unabated.
Aside from civil rights abuses, which tend to be rationalized as necessary evils by those that haven’t been affected by them, the War on Drugs has a much more tangible effect on everyday life.  One such effect is the immense drain the effort puts on taxpayer resources, primarily in the area of law enforcement efforts.  The War on Drugs has become a major priority in the law enforcement community, taking away resources that could otherwise be used in pursuing criminals that society is more at risk from, such as burglars and violent criminals.  The CLRC acknowledges in their report that tax money spent on “drug suppression” cannot be used for other purposes, including suppression of “crimes against person and property” such as theft and violence (20).
This diversion of resources is actually increasing the amount of violent crime on our streets.  The U.S. Bureau of Justice Statistics states, “As a result of increased prosecutions and longer time served […] the number of drug offenders in federal prisons increased more than 12% annually, on average, from 1986 to 1999” (“Federal” 7).  As we have seen previously, law enforcement efforts over the same period have, at best, resulted in drug supply and use rates staying level, if not actually rising.  And an Illinois study found that “huge increases in drug law enforcement in the state [led to] a sharp increase in violent crime.”  The report further suggests that this might have been partly because “greater numbers of violent criminals were released from prison early to make room for the surge of drug offenders” resulting from increased drug law enforcement efforts (Kopel 28-29).  As Judge Gray says, “we’re flooding our courts with these cases that aren’t making any difference whatsoever" (Gray 43).
The standard operating assumption behind criminal law enforcement is when a criminal is removed from the streets there is one less person committing crime.  With most violent crime—particularly sociopathic crime such as rape—this assumption works because there is no automatic replacement waiting in the wings to take the captured criminal’s place.  With the illegal drug market, however, the profits are so immense that when one drug seller is arrested, another one immediately moves in to absorb his business (Kopel 31-32).
With each increase in law enforcement efforts, we simply increase the rate with which we relocate drug dealers from the street to prison.  Between 1981 and 1992, the number of state and federal prisoners increased over 200% from 369,930 to 883,593, largely due to increased enforcement efforts in the War on Drugs (Kopel 2).  The U.S. now incarcerates more people per 100,000 than any other nation (Kopel 4).  As a result, drug users and dealers have been systematically consuming what San Francisco Sheriff, Michael Hennessey, says is “the single most valuable resource in the criminal justice system: jail cells.”  In his opinion, “We desperately need the limited space in our nation’s jails and prisons to house violent offenders, not minor league dope addicts and dealers” (qtd. in Kopel 30-31).
Coupled with this overflow of our prisons is the policy of mandatory minimum sentencing.  Although originally introduced to try to reduce the number of drug suppliers by threatening them with tough sentences, it has resulted in barbaric sentencing practices, frequently punishing simple drug offenders more harshly than some violent criminals are punished (Kopel 10).  Judges are forced by law to adjudicate against their better judgment.  Judge Gray cites documented cases in which “very conservative federal judges are literally in tears because they are required by the law to sentence a particular offender to a draconian sentence.”  He goes on to tell of a “common” case in his courtroom in which a young mother would be in court on drug charges because her drug dealer boyfriend enticed her, with a large sum of money, to be a courier for him.  Due to mandatory sentencing laws, Judge Gray would have to sentence the young mother to five years in prison.  If the mother had no family that could take care of her children, the state would have to take charge of them as “abused and neglected” children.  In most cases, by the time a mother completes such a sentence, her children have already been adopted by another family (44).  Thirty-nine percent of imprisoned mothers are there for drug violations (Kopel 5).  The state cost of imprisoning a mother and housing her children is about $85,000 per year (Gray 44).  Thus, we are paying $85,000 per year, per family to destroy families by forcefully separating children from their mothers.
In the mean time, our overflowing prisons are forcing courts to parole violent criminals early.  Since those crimes don’t fall under the same mandatory sentencing laws that drug crimes do, a person convicted of armed robbery might be sentenced to less time than the mother described above.  And persons convicted of rape and murder, despite being sentenced to longer prison terms, are frequently released before the mother’s five year term is up simply because the courts must make room for more incoming prisoners (Gray 44).  As a result of these early releases forced by prison overcrowding, Texas A&M economist, Morgan Reynolds finds that the average expected sentence for murder is 1.8 years, for rape is 60 days, and for robbery is 23 days (Kopel 27).
These disproportionately low sentences mean we are returning violent criminals into society at an alarming rate.  The results are predictable.  In one documented case, a rapist who hacked off the hands of his victim and left her to die in the desert served less time than a first-time offender mother of two who accepted $1,000 to carry a kilo of cocaine (Wisotsky).  And in another tragic case, a murderer who was set free because of prison overcrowding murdered three more people after being released (Kopel 28).  With stories like this, it’s not surprising to learn that despite the massive increases in incarcerations of drug offenders, the violent crime rate increased 41% between 1986 and 1991 (Kopel 6).
Mandatory minimum sentencing laws and the black market further combine to the detriment of society.  The CLRC has found that drug abusers are induced to become criminals because they must fund their habit against enormous black market costs.  Their inhibitions are further reduced by their identification as criminals.  Having already broken drug laws, they may perceive that they have nothing to lose in committing other crimes (18).  Mandatory minimum laws may provide further motivation to commit crimes.  If a drug abuser knows that committing armed robbery results in less time served than for possession of the drugs he abuses, he clearly has nothing more to lose, under the law, by committing armed robbery than by using or trafficking drugs (Kopel 27-30).
Mandatory minimums may also be marginalizing drug offenders to the point where they actually become more anti-social.  Take, for example, one drug offender’s statement that he would commit violent crimes against law enforcement in the future, specifically because of the mandatory sentence that had been imposed on him for drug possession.  “If I got out today,” he said, “I’d have a gun today.  If a Government agent showed up at my doorstep, I’d kill her.  I’m not going down again.  This law is creating a monster” (Kopel 30).  Mandatory minimum laws make violent crime look less serious than drug crimes, and as a result, they are actually inducing violent crimes to be committed against innocent people.
Through escalated violence, official corruption, and Constitutional abuses, the federal government has waged a war on our civil rights and our safety.  Through black market economics resulting from prohibition, and through draconian mandatory sentencing practices, the federal government has waged a war on the sovereignty of the individual.  In the name of “national security,” our nation has waged a War on Drugs, and in so doing, has threatened us all by escalating and ignoring violent crimes and property crimes, and by systematically denying us our Constitutional protections.  Especially in the wake of the 9/11 terrorist attacks, it is unconscionable that our law enforcement resources are being diverted to the futile prohibition effort.  We should end the War on Drugs as we know it, and re-establish the rule of law as it was intended: a deterrent to crime instead of an incentive for it.

Works Cited
Baum, Dan. Smoke and Mirrors: The War on Drugs and the Politics of Failure. New York: Little, 1997.

Boaz, David. “Drug Legalization, Criminalization, and Harm Reduction.” United States House of Representatives, Washington DC. 16 June 1999.

Connecticut. Law Revision Commision. Drug Policy in Connecticut and Strategy Options Report to the Judiciary Committee of the Connecticut General Assembly. 21 Jan. 1997.

Gray, James P. “Battlefield Conversions.” Reason Jan. 2002: 43-45.

Kopel, David B. “Prison Blues: How America’s Foolish Sentencing Policies Endanger Public Safety.” Policy Analysis No. 208. 17 May. 1994. Cato Institute. 19 July 2002 <http://www.cato.org/pubs/pas/pa-208.html>.

Levine, Michael. “Battlefield Conversions.” Reason Jan. 2002: 40-43.

MacCoun, Robert J., and Peter Reuter. “Interpreting Dutch Cannabis Policy: Reasoning by Analogy in the Legalization Debate.” Science 278.533 (1997): 47+.

McNamara, Joseph D. “Battlefield Conversions.” Reason Jan. 2002: 38-40.

McNamara, Joseph D. “The Defensive Front Line.” Regulation 24.4 (2001): 61-63.

Sullum, Jacob. "Sex, Drugs & Techno Music: Why the rap against Ecstasy has a familiar ring to it.” Reason Jan. 2002: 27-34.

United States. Bureau of Justice Statistics. Drugs & Crime Data. Sep. 1994, NCJ-149286.

United States. Bureau of Justice Statistics. Federal Drug Offenders, 1999, with Trends 1984-1999. Aug. 2001, NCJ-187285.

United States. Office of National Drug Control Policy. What America’s User’s Spend on Illegal Drugs. Dec 2001. NCJ-192334.

Wisotsky, Steven. “A Society of Suspects: The War on Drugs and Civil Liberties.” Policy Analysis No. 180. 2 Oct. 1992. Cato Institute. 19 July 2002 <http://www.cato.org/pubs/pas/pa-180.html>.

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