Drug Legalization, Criminalization, and Harm Reduction (Excerpts)

Ours is a federal republic. The federal government has only the powers granted to it in the Constitution. And the United States has a tradition of individual liberty, vigorous civil society, and limited government: just because a problem is identified does not mean that the government ought to undertake to solve it, and just because a problem occurs in more than one state does not mean that it is a proper subject for federal policy.

Perhaps no area more clearly demonstrates the bad consequences of not following such rules than drug prohibition. The long federal experiment in prohibition of marijuana, cocaine, heroin, and other drugs has given us unprecedented crime and corruption combined with a manifest failure to stop the use of drugs or reduce their availability to children.

In the 1920s Congress experimented with the prohibition of alcohol. On February 20, 1933, a new Congress acknowledged the failure of alcohol Prohibition and sent the Twenty‐​First Amendment to the states. Congress recognized that Prohibition had failed to stop drinking and had increased prison populations and violent crime. By the end of 1933, national Prohibition was history, though in accordance with our federal system many states continued to outlaw or severely restrict the sale of liquor.

Today Congress confronts a similarly failed prohibition policy. Futile efforts to enforce prohibition have been pursued even more vigorously in the 1980s and 1990s than they were in the 1920s. Total federal expenditures for the first 10 years of Prohibition amounted to $88 million–about $733 million in 1993 dollars. Drug enforcement cost about $22 billion in the Reagan years and another $45 billion in the four years of the Bush administration. The federal government spent $16 billion on drug control programs in FY 1998 and has approved a budget of $17.9 billion for FY 1999. (See Figure 1.) The Office of National Drug Control Policy reported in April 1999 that state and local governments spent an additional $15.9 billion in FY 1991, an increase of 13 percent over 1990, and there is every reason to believe that state and local expenditures have risen throughout the 1990s.

Those mind‐​boggling amounts have had some effect. Total drug arrests are now more than 1.5 million a year. There are about 400,000 drug offenders in jails and prison now, and over 80 percent of the increase in the federal prison population from 1985 to 1995 was due to drug convictions. Drug offenders constituted 59.6 percent of all federal prisoners in 1996, up from 52.6 percent in 1990. (See figure 2.) (Those in federal prison for violent offenses fell from 18 percent to 12.4 percent of the total, while property offenders fell from 14 percent to 8.4 percent.)

Yet as was the case during Prohibition, all the arrests and incarcerations haven’t stopped the use and abuse of drugs, or the drug trade, or the crime associated with black‐​market transactions. Cocaine and heroin supplies are up; the more our Customs agents interdict, the more smugglers import. In a letter to the Wall Street Journal published on November 12, 1996, Janet Crist of the White House Office of National Drug Policy claimed some success:

“However,” she continued, “there has been no direct effect on either the price or the availability of cocaine on our streets.”

That is hardly a sign of a successful policy. And of course, while crime rates have fallen in the past few years, today’s crime rates look good only by the standards of the recent past; they remain much higher than the levels of the 1950s.

As for discouraging young people from using drugs, the massive federal effort has largely been a dud. Despite the soaring expenditures on antidrug efforts, about half the students in the United States in 1995 tried an illegal drug before they graduated from high school. According to the 1997 National Household Survey on Drug Abuse, 54.1 percent of high school seniors reported some use of an illegal drug at least once during their lifetime, although it should be noted that only 6.4 percent reported use in the month before the survey was conducted. Every year from 1975 to 1995, at least 82 percent of high school seniors have said they find marijuana “fairly easy” or “very easy” to obtain. During that same period, according to federal statistics of dubious reliability, teenage marijuana use fell dramatically and then rose significantly, suggesting that cultural factors have more effect than “the war on drugs.”

The manifest failure of drug prohibition explains why more and more people–from Baltimore mayor Kurt Schmoke to Nobel laureate Milton Friedman, conservative columnist William F. Buckley Jr., and former secretary of state George Shultz–have argued that drug prohibition actually causes more crime and other harms than it prevents.

Intellectual history teaches us that people have a strong incentive to maintain their faith in old paradigms even as the facts become increasingly difficult to explain within that paradigm. But when a paradigm has manifestly failed, we need to think creatively and develop a new paradigm. The paradigm of prohibition has failed. I urge members of Congress and all Americans to have the courage to let go of the old paradigm, to think outside the box, and to develop a new model for dealing with the very real risks of drug and alcohol abuse. If the 106th Congress will subject the federal drug laws to that kind of new thinking, it will recognize that the drug war is not the answer to problems associated with drug use.

Full text of testimony before the House Subcommittee on Criminal Justice, Drug Policy, and Human Resources.