In an article over at CNN.com, I discuss a new study that confirms that the war on drugs is an expensive failure. That report from BMJ Open, an affiliate of the British Medical Journal, reaches the damning conclusion, supported by compelling evidence, that drug warriors have consistently failed to achieve their stated objectives.
Among other findings, the report documents that inflation-adjusted and purity-adjusted prices of marijuana, cocaine, and heroin have all decreased dramatically since 1990. That was true in such geographically distinct areas as Europe, the United States, and Australia. In other words, illegal drugs are plentiful and cheap around the world, and there is no indication that the trend is likely to change. The authors state that despite “increasing investments in enforcement-based supply reduction efforts aimed at disrupting global drug supply, illegal drug prices have generally decreased while drug purity has generally increased.”
None of this comes as a surprise to the swelling ranks of critics of the international drug prohibition policy. Drug abuse is certainly a major public health problem, and its societal costs are considerable. But banning the drug trade creates ugly social and economic distortions. Because certain drugs are illegal, there is an enormous black-market premium (by most estimates, up to 90 percent of the retail price) associated with them. That lucrative lure attracts the most corrupt, violent individuals and organizations.
The Washington Post’s Wonkblog “interviews political scientists Jon Hurwitz and Mark Peffley about their book on how blacks and whites perceive the criminal justice system, and what it implies for Trayvon Martin’s death, George Zimmerman’s acquittal, and the aftermath.” An excerpt, quoting Hurwitz/Peffley:
We asked whether it’s a “serious problem” in their community that police “stop and question blacks far more often than whites” or that police “care more about crimes against whites than minorities.” On average, 70 percent of blacks, but only 17 percent of whites, considered these serious problems…[W]hile about 25 percent of whites disagreed with the statement that the “courts give all a fair trial,” more than 60 percent of African Americans disagreed. Repeatedly, using every possible barometer, we found that blacks doubted the fairness of the justice system much more than whites…
Much of the difference comes down to either personal or vicarious experiences that people have with police and the courts. We found that African Americans, especially younger black men, were far more likely than whites to report being treated unfairly by the police because of their race. In fact, a recent Gallup Poll found that one of every four black men under age 35 said that the police have treated them unfairly during the last 30 days.
This excerpt reminded me of a data point I included in the health care chapter I wrote for the Encyclopedia of Libertarianism:
A 2004 survey published in the journal Health Affairs hints at one way [public-health] powers could be abused. Amid widespread concern about bioterrorism, roughly equal shares of white and black Americans expressed support for quarantines to contain a serious contagious disease. When subsequently asked whether they would support a compulsory quarantine, where the authorities would have the power to arrest violators, 25% of whites changed their minds, whereas 51% of blacks did, indicating an awareness that these policies would not necessarily be fairly implemented.
It also reminded me of this John McWhorter speech, reprinted in the Winter 2011 issue of Cato’s Letter, where he argues the war on drugs is behind “the strained relationship between young black men and police forces,” and racial progress requires ending the drug war.
Last Friday, the Organization of American States released a groundbreaking report on the future of drug policy in the Americas. The OAS received the mandate to produce this document at the Summit of the Americas last year in Cartagena, Colombia, where some presidents aired their frustration with the war on drugs and even suggested legalization as an alternative to fight the cartels.
The document is based on solid premises:
These premises might seem pretty obvious, but when it comes to drug policy, stating the obvious hasn’t been the norm for those who believe in the status quo: for example, in 1988 the UN held an event titled “A drug-free world: we can do it” (consumption of marijuana and cocaine has increased by 50 percent since then). Or the latest National Drug Control Strategy, which claims that the greatest accomplishment of the Mérida Initiative with Mexico has been “the mutual fostering of security, protection and prosperity” (never mind the 60,000 people killed in drug violence in six years in Mexico).
The OAS report avoids recounting this fairy tale. It also avoids making recommendations, given the lack of consensus among its authors about where drug policy should be headed in the next 12 years. Instead, the document lays out four different interpretations of the “drug problem” and presents the scenarios of what the response should be. The report also presents the challenges facing each scenario (name in bold):
Together: Under this scenario, the problem is not drug laws but weak institutions. It foresees greater security and intelligence cooperation among nations, more expenditure in the security and judiciary apparatuses and tougher laws dealing with corruption, gun trafficking and money laundering.
Latin American countries indeed suffer from weak institutions. The shortcoming of this scenario is that prohibition actually exacerbates the problem since it inflates the profit margins of the cartels to stratospheric levels, thus increasing their corrupting and violent power. In 2010 all seven Central American countries combined spent nearly $4 billion in their security and judiciary apparatuses (a 60 percent increase in five years). And yet that fell terribly short of the estimated revenues of the Mexican and Colombian cartels which, according to a report from the Justice Department, could reach up to $39 billion a year.
The report foresees another challenge with this approach: a disparity among countries in their institution-building efforts, which would lead to the balloon effect of criminal activities. This is perhaps the main feature of the drug business in the Americas: its high capacity to adapt to changing circumstances. For example, in the early 1990s, as pressure grew on coca growers in Peru they moved to Colombia. Now, after a decade of eradication programs in that nation, they are moving back to Peru. Overall the Andean region continues to produce the same amount of cocaine as it did 20 years ago.
Over the years the common denominator of the war on drugs in Latin America has been the attempt to export the problem to your neighbor. Greater cooperation, harmonization of efforts, and same-pace institution building seems unrealistic.
Since President Felipe Calderon took office six years ago and decided to aggressively fight Mexican drug cartels, Mexico has seen some 60,000 drug-war-related deaths. That’s “more than the number of Americans who died in Vietnam, but in a country with one third the U.S. population,” says former Mexican Foreign Minister Jorge Castañeda.
In a new Cato video released during President-elect Enrique Peña Nieto’s visit to Washington this week, Ted Carpenter explains why the U.S.-backed drug war has been a disaster and urges an end to prohibition. For an in-depth look at the issue, read Ted’s new book, The Fire Next Door: Mexico’s Drug Violence and the Danger to America.
You can read more Cato scholars’ writings on the War on Drugs here.
The Supreme Court heard oral argument yesterday in Florida v. Jardines, a case that examined whether bringing a drug-sniffing dog to the front door of a home looking for drugs was a Fourth Amendment search.
Having attended the oral argument (transcript; audio forthcoming), my sense is that a majority on the Court thinks dog-sniffs at front doors (absent a warrant) go too far. But few of the justices know why. The one who does is Justice Kagan.
What rationale might the Court use to decide the case? Even after United States v. Jones threw open Fourth Amendment doctrine, the instinct for using “reasonable expectation of privacy” analysis is strong. (I’ve joked that many lawyers think the word “privacy” can’t be uttered without the prefix “reasonable expectation of.”) This is where much of the discussion focused, and Justice Breyer seemed the most firmly committed to its use.
But the insufficiency of “reasonable expectation” doctrine for providing a decision rule was apparent when Breyer teed up Jardines’s counsel to knock the case out of the park. There was much discussion of what one reasonably expects at the front door of a home. Neighbors may come up. Trick-or-treaters may come up. Neighbors may come up with their dogs. The police may come to the door for a “knock and talk.” Neighbors, trick-or-treaters, dogs, and police officers may all come up and discover odors coming from the house. What makes the drug-sniffing dog unexpected?, Justice Breyer asked:
Do in fact policemen, like other people, come up and breathe? Yes. Do we expect it? Yes, we expect people to come up and breathe. But do we expect them to do what happened here? And at that point, I get into the question: What happened here?
Joelis Jardines’s counsel could not say what made the dog unexpected.
Perhaps property law draws the line that excludes government agents with drug-sniffing dogs, while allowing other visitors to come to the door. Not so. Justice Alito in particular pressed Jardines’s counsel for any case that had excluded dogs (drug-sniffing or otherwise) from the implied consent one gives to visitors on the walk and at the front door. The argument is unavailing, this idea that Florida’s property law (put into play by the majority holding in Jones, which relied on property rights) solve this case. Florida property law doesn’t exclude dogs from the implied permission it gives to lawful visitors on residential property.
None of this is to say that the government had it easy. Florida’s counsel had uttered just three sentences when Justice Kennedy informed him that the rule from Illinois v. Caballes would not carry the day. In Caballes, the Court found there to be no search at all when government agents walked a drug-sniffing dog around a car stopped for other reasons. (I attacked what I called the “Jacobsen/Caballes corollary” to the Katz decision in the Cato Institute’s brief to the Court, and also in this Jurist commentary.)
It won’t be the rule from Caballes. So what is the rationale that decides this case?
Justice Scalia was on the scent when he reasoned with the government’s counsel about what might be done with binoculars.
“As I understand the law,” he said, “the police are entitled to use binoculars to look into the house if—if the residents leave the blinds open, right?”
Florida’s counsel agreed.
“But if they can’t see clearly enough from a distance, they’re not entitled to go onto the curtilage of the house, inside the gate, and use the binoculars from that vantage point, are they?”
“They’re not, Your Honor.”
“Why isn’t it the same thing with the dog?”
Justice Kagan knows that it is. And she used Justice Scalia’s reasoning in Kyllo v. United States, the precedent that is on all fours with this case.
She recited from Kyllo: “ ‘We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search, at least where, as here, the technology in question is not in general public use.’” And she asked Florida’s counsel, “[W]hat part of that language does not apply in this case?”
“Franky’s nose is not technology,” he replied, referring to the dog. “It’s—he’s using—he’s availing himself of God-given senses in the way that dogs have helped mankind for centuries.”
The existence of dogs in human society for centuries might help the government if dogs had been used for drug-detection all this time. And then only if the question was what it is reasonable to expect.
What matters is that a drug-sniffing dog is indeed a form of sense-enhancing technology. Selected for its strong sense of smell, and trained to convey when particular odors are present, a drug-sniffing dog makes perceptible to law enforcement what is otherwise imperceptible.
And that is the very definition of searching. At least as Black’s Law Dictionary has it: “‘Search’ consists of looking for or seeking out that which is otherwise concealed from view.”
Police officers use dogs to search for drugs and other materials in which they are interested but which they cannot see by themselves. A drug-sniffing dog is a cuddly chromatograph.
And just now, quietly, you have seen at work the rationale that the Supreme Court should use to decide Florida v. Jardines. Was it a search to bring a drug-sniffing dog to the front door of a house? The Court should apply the plain meaning of the word “search” to the facts of the case that has come before it. There’s no need for doctrine at all.
Three states’ ballot initiatives might legalize the recreational use of marijuana this year. To the displeasure of some current and former drug warriors, the Obama Department of Justice is silent on the matter.
Those urging the feds to weigh in, unfortunately, rest their case on some bad reasoning:
But their claim is just not true. Here’s why. Let’s say the feds have a law banning the use of sugar in iced tea. An example of a state law that conflicts with this federal law would be one that requires the use of sugar in iced tea, not a state law that simply permits the use of sugar. A failure to adopt a law that prohibits the same thing the feds prohibit is simply not a conflict.
Another reason the Justice Department may be silent on these state ballot initiatives? President Obama is less popular nationwide than marijuana legalization.
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