Obviously Mr. Downey, arrested again for drugs only three months after being released from prison, has made a mess of his life. But why is the government threatening to jail him for another five years? He has harmed no one else. He has done nothing to warrant imprisonment.
The government’s war on drugs has had only indifferent success in reducing drug abuse. Consumption has long varied, irrespective of ongoing enforcement efforts. More than 80 million people, 15 million last year, have tried drugs despite increasingly draconian penalties.
Most are casual users who can and do quit. The threat of prosecution has undoubtedly discouraged casual use, but casual use is of minimal consequence. Three-fourths of present drug users, like Downey, are employed. Corporations, law firms, government agencies, and legislative bodies are full of people who once consumed drugs. Even presidents and presidents-elect have smoked marijuana without evident harm.
Where the drug laws are least effective is in stopping addicts, the 3.6 million people, like Downey, estimated to be dependent on drugs.
“The threat of prison has been eliminated for me,” observed Downey after his release. “I know I can do time now.”
If the drug laws won’t stop someone like him, with so much to lose from doing drugs, who will they stop?
Perhaps the greatest failure of the war on drugs is that it does little to protect kids. Over the last five years, teen demand for marijuana has fallen a bit, but that for ecstasy has doubled. Half of teens have tried illicit drugs. Nine out of 10 say it is fairly or very easy to obtain marijuana; nearly half say the same of cocaine.
Prohibition actually encourages consumption by children. Persistent lies about the impact of drugs - from “reefer madness” on - have undercut the government’s credibility. The application of reduced criminal penalties to juveniles has encouraged drug gangs to rely on kids. And banning drugs has created a black market, leaving drug sales in the hands of the sort of people who actively market to children.
Unfortunately, the costs of the war on drugs are huge - $ 75 billion over the past five years, 25 times the inflation-adjusted spending on Prohibition in the 1920s.
Moreover, there are now 2 million people in federal and state prisons. One-fourth of state and 60 percent of federal prisoners are serving drug-related charges - yet three-fourths of them had no prior convictions for violent crimes.
We are also losing our status as a free people. Corruption bedevils police forces, court systems, the customs service, and even the military.
The lack of complaining witnesses means that drug offenses can be prosecuted only through police-state tactics: promiscuous wiretaps, intrusive searches, racial profiling, confiscatory property forfeitures, propaganda-laced television shows, militarized law enforcement, and mindless mandatory minimum sentences.
Although the Supreme Court recently tossed out traffic stops for narcotics, lawyers routinely talk about the “drug exception” to the Fourth Amendment. Mistaken drug raids regularly leave innocent dead in their wake.
Although there are people who consume drugs and then commit crimes, alcohol is by far the most criminogenic drug. Heroin and marijuana are more likely to make people passive.
Most of the violence associated with drugs is drug-law related - marketing disputes that cannot be peacefully resolved, as during Prohibition.
The violence spreads overseas to countries like Colombia. Absent America’s ban on drug use, the drug trade would offer normal profits and attract normal businessmen. Today, in contrast, these societies are truly at war.
The sick also pay a price. Although doctors may prescribe morphine to treat pain, the federal government refuses to make a similar allowance for marijuana.
Yet, in my view, the evidence is overwhelming that for some people, marijuana is the best medicine available today. In short, the practical costs of the drug war outweigh any practical benefits. But the case of Robert Downey Jr. raises an even more fundamental moral issue.
Why should the government jail someone to prevent him from hurting himself? The moral argument for punishing a thief or murderer is clear. But not a drug user, especially when the vast majority of users are as responsible as any drinker.
The few who are “enslaved” by drugs still don’t deserve prison. If Robert Downey Jr. can’t do his job, then fire him for cause. If he drives a car while impaired, then punish him for driving under the influence. If he takes a drug that impairs his judgment and he hits someone, then jail him for assault. But don’t imprison him simply for using drugs.
The unending presidential election has overshadowed an equally important result of Nov. 7 - voters’ desire to chart an alternative drug strategy.
People across the country supported access to medical marijuana, endorsed treatment over punishment, restricted property forfeitures, and, in California’s Mendocino County, approved limited marijuana decriminalization.
There is no easy solution for drug abuse, but one thing is clear: We should “call off the hounds,” as Michael Levine, a former agent with the Drug Enforcement Agency, puts it. Drug abuse is a health, moral, and spiritual problem; it is time to stop treating it as a criminal problem.