May 5, 2013
Alternatives to the War on Drugs
Alternatives to the War on Drugs-Becker
The 40 year-old American "war on drugs" has been a colossal failure. No progress in dealing with drugs can be expected until that basic truth is recognized. Every conceivable approach has been tried to help the war succeed, such as long prison terms for persons convicted of selling or using drugs, trying to prevent drugs from entering the US from Mexico and other countries, and confiscating huge quantities of drugs (remember The French Connection?). At some point all wars that fail are terminated, and alternative approaches explored.
The two main alternatives to the war on drugs are decriminalization and legalization of drugs. Decriminalizing drugs means that using drugs would no longer be a criminal activity, while trafficking in drugs would remain a crime. Legalization of drugs means that trafficking in drugs as well as using drugs would not be a crime.
With decriminalization, individuals in possession of small quantities of drugs would not be subject to criminal charges, so that they need not fear imprisonment or other punishments. Since eliminating any criminal punishment for using drugs reduces the effective cost of using drugs, decriminalization might increase experimentation with drug use.
At the same time, however, decriminalization might well reduce the fraction of drug users who regularly consume large quantities of drugs, which is usually a sign of drug addiction. The likelihood of becoming and remaining addicted to drugs or other goods is not determined only by personal biological and psychological propensities to become addicted. For example, many individuals end their addictions to smoking and drinking alcohol when they get married, find good jobs, or mature.
The war on drugs makes it much more difficult for individuals who are unhappy about their addictions to cocaine or other drugs to end their addictions. When using drugs is a criminal offense, drug addicts who want to quit hesitate going to drug clinics, or seeking other help, because they are subject to arrest. Although decriminalizing drugs makes it easier to experiment with using drugs, it also encourages the development of for-profit and non-profit organizations that help individuals terminate their reliance on cocaine, heroin, and other addictive drugs. Since smoking and drinking are legal, the non-profit organization AA could develop to help heavy drinkers end their addiction, and profit-making companies had the incentive to create patches to help individuals stop smoking.
The evidence from Portugal, a country that decriminalized all drug use in 2001, offers some support for the claim that decriminalization of drug use will reduce addiction to drugs. A 2010 study in the British Journal of Criminology concluded that decriminalization in Portugal reduced imprisonment on drug-related charges, only slightly increased, if at all, drug experimentation among young persons, increased visits to clinics that help end drug addictions, and reduced deaths from drug overdoses.
As Posner indicates, a growing number of states have decriminalized the use of marijuana for medical purposes, and a couple of states have decriminalized all uses of marijuana. Effectively, if not legally, marijuana has been decriminalized in a large number of American states, despite its violation of federal law.
Decriminalizing drug use does lead to decriminalization of some drug trafficking as well since some sellers of drugs would only keep small quantities of drugs on their persons in order to claim, if questioned by the police, that they are users rather than sellers of drugs. Still, decriminalization would not by itself end many of the costs of the war on drugs since they involve actions against large-scale traffickers. Only full legalization of the selling as well as consuming of drugs could do that. As Kevin Murphy and I said elsewhere (Wall Street Journal, Jan.5, 2013), "full decriminalization on both sides of the drug market would lower drug prices, reduce the role of criminals in producing and selling drugs, improve many inner-city neighborhoods, encourage more minority students in the U.S. to finish high school, lessen the drug problems of Mexico and other countries involved in supplying drugs {to the U.S.}, greatly reduce the number of federal and state prisoners and the harmful effects on drug offenders of spending many years in jail, and save the financial resources of government".
In most countries, including the United States, smoking and drinking are rather heavily taxed through so-called "sin taxes". For those concerned that legalizing drugs would greatly increase the use of drugs, legalization could be combined with a tax on drugs, like these other sin taxes. Some drug transactions might move underground to avoid paying this tax, but most production would remain legal because of the many contractual and other advantages of legally producing drugs.
The retreat from the war on drugs has already begun. The question is whether it will be a sensible retreat with systematic changes in the law toward decriminalization and legalization of drugs, or a disorganized retreat that leaves users and sellers of drugs with unclear legal status.
Breakthough in the War on Drugs?—Posner
No, no breathrough. It's true that earlier this week the White House released its "National Drug Control Strategy 2013," heralded in some quarters as a breakthrough in national drug control strategy because it calls drug addiction a disease and promises to devote a higher percentage of federal drug control funds to treatment and prevention of drug abuse than in previous years. But a solid majority of federal drug control funds (58 percent) will continue to be devoted to the enforcement of the federal criminal laws, with their savage sentences, against participants in illegal-drug markets.
The publication of a White House "National Drug Control Strategy" is an annual event, which wordily (the 2013 version is 95 pages long) heralds nonexistent progress and makes false promises of more to come. The General Accountability Office has evaluated the 2013 version and found it wanting, noting the government's lack of progress toward achieviing the goals of diminished drug use stated in the 2010 version.
The new (that is, the ostensibly new) strategy gives continued primacy to the "war on drugs," which best describes the criminal-law and (abroad) paramilitary campaigns against the drug trade. No one thinks these campaigns can eradicate illegal drugs. The realistic-seeming objective is, by increasing expected punishment cost and by taking out of circulation (through imprisonment) those not deterred by the cost, the war on drugs raises the prices of illegal drugs. Yet those prices remain very low. The reason appears to be the very high elasticity of supply of drug dealers. It's like Karl Marx's "reserve army of the unemployed"; if there is no dearth of persons willing to be drug dealers at modest wages, the principal effect of law enforcement may be to increase labor turnover, at enormous cost in police and prosecutorial resources and above all in incarceration: half the federal prison population in the United States consists of drug offenders. Some 1.7 million persons who are in prison or jail (state or federal) or on probation or parole (or its federal equivalent, supervised release) are in those situations of confinement or restriction because of drug offenses. No doubt the mere fact that drugs are illegal deters some consumers—but how many relative to the large number of persons who have no interest in consuming mind-altering drugs, legal or illegal?
Increasingly the war on drugs seems an expensive failure. But treatment and prevention (prevention other than through the threat or actuality of imprisonment) are no panaceas. There are several problems. The first is the difficulty of distinguishing between harmful and harmless use of drugs. Much of the consumption of illegal drugs is either not harmful to the user at all, or is no more harmful than the legal substitutes (such as cigarettes and alcoholic beverages) to which consumers of mind-alterating drugs would be likely to turn if the illegal drugs were unavailable or very expensive. It would be foolish to break a person of his cocaine habit only to see him become an alcoholic.
Furthermore, not all drug users are addicts; and not all addictions are harmful. Much behavior is habitual, yet harmless; "addiction" is simply a pejorative term for habitual behavior.
No doubt much drug use is harmful to the user. But trying to prevent self-destructive behavior (at least by adults) is problematic. It not only is often very difficult to identify such behavior, but unless it imposes external costs it is a questionable object of government attention. One person's self-destructive behavior is another person's greatest pleasure in life. And therefore people generally are allowed to engage in self-destructive behavior, whether playing football, hang gliding, mountain climbing, smoking cigarettes, or drinking sugared soft drinks. Forcing people to be healthy is not a feasible goal of public policy—especially forcing people to avoid just one type of unhealthful habit, thus inviting them to switch to an unhealthful habit that happens to be lawful. There are externalities to self-destructive behavior, but often they can be curbed by withholding public benefits. For example, a person disabled from working by drug addiction is ineligible for social security diability benefits.
"Prevention" and "treatment" sound good, especially in contrast to "prosecution" and "imprisonment." But there is a serious question of efficacy. I don't know how feasible it is to break people of a drug habit, but suppose it's quite feasible. Even so, unless they had become addicts accidentally, they are likely to become re-addicted once their treatment is complete. They will become re-addicted for the same reason they became addicted in the first place. They will be like the countless overweight people who go on diet after diet yet never achieve a lasting loss of weight.
It's been noted disapprovingly that the 2013 White House strategy report does not mention the legalization of recreational (as distinct from just medicinal) use of marijuana by the states of Colorado and Washington. On the contrary, the strategy announces ambitious though probably Quixotic plans to extirpate the growing of marijuana in the United States. (How could that be achieved? Marijuana can be grown in one's garden, or for that matter indoors. No importation or manufacture is required.)
Of course a state cannot preempt a federal law. But wouldn't an ideal experiment for the federal government to conduct be to suspend enforcement of federal marijuana laws in Colorado and Washington (except to forbid the export of marijuana from those states to other states) and see what the consequences were? And if it turned out that the health consequences were nil, wouldn't that point to the possible repeal of the laws nationwide? Anyway, if Colorado and Washington want to allow recreational use of marijuana by its citizens, why should the federal government care?
Note finally that decriminalization could be coupled with excise taxation to make illegal drugs, like legal alcohol and cigarettes, a source of badly needed government revenues. Decriminalization coupled with taxation might well be a superior alternative to prohibition. As with liquor, drug use by children would continue to be prohibited and heavy punishments would be imposed on dealers who sold to children.