August 30, 2016 11:17AM

Prohibition and Mass Incarceration

In my last post, I noted promising support for marijuana legalization initiatives this fall. Still, outside libertarian circles, there​​ unfortunately isn't the political will to support a broader repeal of our federal and state drug laws.

Before you say it: No, drug legalization will not solve our mass incarceration problem. Not all by itself, ​anyway​; ​the numbers just don't add up. You can see that for yourself at the Urban Institute's web-based prison population forecaster. As the Urban Institute notes,

While dramatically reducing the national prison population requires addressing the hard stuff—like long prison sentences and time served for violent offenses—reforms to drug laws and revocation policies will still go a long way in many states.

For example, nonviolent offenses are a major driver of the prison population in Alabama, Kentucky, Missouri, Oklahoma, and Texas, so sending fewer people to prison for drug and property crimes would have a big impact on incarceration rates. Halving drug admissions would cut the prison population by nearly 10 percent in each of those states by the end of 2021. And a 50 percent reduction in admissions for all nonviolent crimes would cut at least a quarter off their populations (nearly a third in Kentucky).

​For good or ill, the Urban Institute doesn't ​consider libertarians' first-best solution, which ​is​ of course the full legalization of all drugs​. Libertarians support this policy not just because ​it would help empty the prisons, but because it's your body, and it's your right to choose what goes into it.​

These propositions are obvious to us; if only they were more obvious to others. But as the success of marijuana legalization becomes increasingly apparent, I hope that a fuller legalization, also once laughed at, will come to be taken more seriously.

Nonetheless ​it's easy to see that even full legalization won't get us to an OECD-reasonable incarceration rate. Mandatory minimum sentencing also needs to be reconsidered, as do longer sentences in general, and we​ will​ likely need to do something about plea bargaining as well, which​, when coupled with longer sentencing​,​ tends to result in many more people behind bars, including innocents. We should finally recall that we are only a couple of decades out from a historic peak in the violent crime rate. Many people incarcerated during that time are still in prison and arguably still belong there.

Still,​ a full drug legalization ​would likely have positive direct effects on both the incarceration rate and the crime rate, and it will also likely make many other reforms easier.

​T​he Urban Institute's prison population forecaster​ ​treats drug policy as ​​exogenous​​ to the remainder of the U.S. crime rate. ​That is, it doesn't consider the possibility that legalizing drugs will reduce the incidence of many criminal schemes and enterprises​ that are not detectably drug-related​. ​But w​hen people can resort to the police and the courts to settle their disputes, they are less likely to turn to violence. And ​lawful businesses​, who​ ​must compete on price, quality, and other ​product-regarding ​factors​, will not resort to turf wars.

There are good methodological reasons to resist making ​forecasts that rest on this type of connection,​ and there are good reasons to resist building those forecasts into a web tool whose real purpose is to teach ​the public the true scope of a given, present-day problem. The connection between the war on drugs and secondary crime may be real—and I think to a significant it is—but quantifying it involves making some difficult ​additional predictions about how much the two phenomena are linked and how quickly a change in the one will produce a change in the other. ​These are predictions I'd rather not make.

​But as I've noted previously, drugs are almost certainly not exogenous to​ other forms of​ crime: We would appear to suffer much of our violent and property crime owing only to our drug war. Exactly how much is hard to say; few defendants are likely to admit to any more crimes than are necessary, or to admit drug-related motivations that would lead to additional charges. ​Still it's surely noteworthy that few countries in the world suffer more than 5 firearm homicides per 100,000 without either suffering a civil war... or being ​major drug suppliers or conduits.

Drugs also aren't exogenous to plea bargaining. Although low-level drug offenses aren't ​so ​​much ​to blame for our overcrowded prison system, ​low-level ​drug offenses are to blame for our overcrowded court system. Court overcrowding ​encourages plea bargaining, which means more people pleading guilty​ to offenses that lead to prison​, rather than litigating and potentially avoiding it.

Drug offenses are the ​single ​most common type of federal case. State-level data is harder to find, but in Texas, drug offenses made up 31% of all felony cases ​filed ​in 2015​. They were​ the largest single type of felony case, and possession ​charges ​made up 80% of ​that share. Drug offenses were also the largest single type of misdemeanor in ​Texas in ​the same time period.​ This is obviously a significant burden on the court system.​

Now, ​one might say that these considerations are beside the point: If it is categorically wrong to use or possess drugs, then all punishment of drug crime is effort well spent​; in that case, the proper response to an overcrowded court or prison system is to build it out still further.​ As Sen. Tom Cotton remarked, we may have an under-incarceration problem. (But if we do, what do we make of our close cultural relations, countries like the UK and Australia, whose incarceration rates are vastly lower?)
​Meanwhile, if we have anything like a natural individual right use or possess drugs, then complaining about the inefficiency introduced to the court system is silly. We ought rather to complain about the rights violation, and never mind the inefficiency.

​The latter is my actual view. But I recognize that not everyone ​agrees. I suspect that most people believe that drug use ought to be stigmatized to some extent, but that it is not necessarily categorically wrong​, for example​ in the way​ ​that murder is. To this way of thinking, trade-offs ​regarding levels of stigma and the price we pay to inflict it may be worth considering, particularly if the things we do to ​stigmatize drug use end up indirectly causing worse social problems elsewhere.

That's likely where the rest of the country is regarding drugs harder than marijuana. If so, then a politically viable way forward is clear. It consists of significantly shorter prison sentences, decriminalization where possible, and the consistent referral of low-level possessors and users to the medical rather than the legal system.

Legalizing drugs, or even just significantly decriminalizing them, ​will not solve our mass incarceration problem all by itself. But these measures will directly help out some, and they may indirectly help out quite a lot, particularly if drug legalization is accompanied by reforms in sentencing and criminal procedure. These ought to be goals that everyone can support.