Drug Legalization, Criminalization, and Harm Reduction

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Mr. Chairman, distinguished members of the subcommittee:

Thank you for inviting me to testify before you on the successesand failures of our current policy of drug prohibition, and onpossible alternatives.

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

Perhaps no area more clearly demonstrates the bad consequencesof not following such rules than drug prohibition. The long federalexperiment in prohibition of marijuana, cocaine, heroin, and otherdrugs has given us unprecedented crime and corruption combined witha manifest failure to stop the use of drugs or reduce theiravailability to children.

In the 1920s Congress experimented with the prohibition ofalcohol. On February 20, 1933, a new Congress acknowledged thefailure of alcohol Prohibition and sent the Twenty-First Amendmentto the states. Congress recognized that Prohibition had failed tostop drinking and had increased prison populations and violentcrime. By the end of 1933, national Prohibition was history, thoughin accordance with our federal system many states continued tooutlaw or severely restrict the sale of liquor.

Federal Drug Control Spending, FY 1981 to FY 1999, in Billions
TodayCongress confronts a similarly failed prohibition policy. Futileefforts to enforce prohibition have been pursued even morevigorously in the 1980s and 1990s than they were in the 1920s.Total federal expenditures for the first 10 years of Prohibitionamounted to $88 million - about $733 million in 1993 dollars. Drugenforcement cost about $22 billion in the Reagan years and another$45 billion in the four years of the Bush administration. Thefederal government spent $16 billion on drug control programs in FY1998 and has approved a budget of $17.9 billion for FY 1999. TheOffice of National Drug Control Policy reported in April 1999 thatstate and local governments spent an additional $15.9 billion in FY1991, an increase of 13 percent over 1990, and there is everyreason to believe that state and local expenditures have risenthroughout the 1990s.

Percentage of Drug Offenders in Federal Prisons, 1980-1997
Thosemind-boggling amounts have had some effect. Total drug arrests arenow more than 1.5 million a year. There are about 400,000 drugoffenders in jails and prison now, and over 80 percent of theincrease in the federal prison population from 1985 to 1995 was dueto drug convictions. Drug offenders constituted 59.6 percent of allfederal prisoners in 1996, up from 52.6 percent in 1990. (Those infederal prison for violent offenses fell from 18 percent to 12.4percent of the total, while property offenders fell from 14 percentto 8.4 percent.)

Yet as was the case during Prohibition, all the arrests andincarcerations haven't stopped the use and abuse of drugs, or thedrug trade, or the crime associated with black-market transactions.Cocaine and heroin supplies are up; the more our Customs agentsinterdict, the more smugglers import. In a letter to the WallStreet Journal published on November 12, 1996, Janet Crist of theWhite House Office of National Drug Policy claimed somesuccess:

Other important results [of the Pentagon's anti-drug efforts]include the arrest of virtually the entire Cali drug cartelleadership, the disruption of the Andean air bridge, and thehemispheric drug interdiction effort that has captured about athird of the cocaine produced in South America each year.

"However," she continued, "there has been no direct effect oneither the price or the availability of cocaine on ourstreets."

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

As for discouraging young people from using drugs, the massivefederal effort has largely been a dud. Despite the soaringexpenditures on antidrug efforts, about half the students in theUnited States in 1995 tried an illegal drug before they graduatedfrom high school. According to the 1997 National Household Surveyon Drug Abuse, 54.1 percent of high school seniors reported someuse of an illegal drug at least once during their lifetime,although it should be noted that only 6.4 percent reported use inthe month before the survey was conducted. Every year from 1975 to1995, at least 82 percent of high school seniors have said theyfind marijuana "fairly easy" or "very easy" to obtain. During thatsame period, according to federal statistics of dubiousreliability, teenage marijuana use fell dramatically and then rosesignificantly, suggesting that cultural factors have more effectthan "the war on drugs."

The manifest failure of drug prohibition explains why more andmore people - from Baltimore mayor Kurt Schmoke to Nobel laureateMilton Friedman, conservative columnist William F. Buckley Jr., andformer secretary of state George Shultz - have argued that drugprohibition actually causes more crime and other harms than itprevents.

The Failures of Prohibition

Congress should recognize the failure of prohibition and end thefederal government's war on drugs. First and foremost, the federaldrug laws are constitutionally dubious. As previously noted, thefederal government can only exercise the powers that have beendelegated to it. The Tenth Amendment reserves all other powers tothe states or to the people. However misguided the alcoholprohibitionists turned out to be, they deserve credit for honoringour constitutional system by seeking a constitutional amendmentthat would explicitly authorize a national policy on the sale ofalcohol. Congress never asked the American people for additionalconstitutional powers to declare a war on drug consumers.

Second, drug prohibition creates high levels of crime. Addictsare forced to commit crimes to pay for a habit that would be easilyaffordable if it were legal. Police sources have estimated that asmuch as half the property crime in some major cities is committedby drug users. More dramatically, because drugs are illegal,participants in the drug trade cannot go to court to settledisputes, whether between buyer and seller or between rivalsellers. When black-market contracts are breached, the result isoften some form of violent sanction, which usually leads toretaliation and then open warfare in the streets.

Our capital city, Washington, D.C., has become known as the"murder capital" even though it is the most heavily policed city inthe United States. Make no mistake about it, the annual carnagethat stands behind America's still outrageously high murder rateshas nothing to do with the mind-altering effects of a marijuanacigarette or a crack pipe. It is instead one of the grim and bitterconsequences of an ideological crusade whose proponents will notyet admit defeat.

Third, drug prohibition channels over $40 billion a year intothe criminal underworld. Alcohol prohibition drove reputablecompanies into other industries or out of business altogether,which paved the way for mobsters to make millions through the blackmarket. If drugs were legal, organized crime would stand to losebillions of dollars, and drugs would be sold by legitimatebusinesses in an open marketplace.

Fourth, drug prohibition is a classic example of throwing moneyat a problem. The federal government spends some $16 billion toenforce the drug laws every year - all to no avail. For years drugwar bureaucrats have been tailoring their budget requests to thelatest news reports. When drug use goes up, taxpayers are told thegovernment needs more money so that it can redouble its effortsagainst a rising drug scourge. When drug use goes down, taxpayersare told that it would be a big mistake to curtail spending justwhen progress is being made. Good news or bad, spending levels mustbe maintained or increased.

Fifth, the drug laws are responsible for widespread socialupheaval. "Law and order" advocates too often fail to recognizethat some laws can actually cause societal disorder. A simpleexample will illustrate that phenomenon. Right now our collegecampuses are relatively calm and peaceful, but imagine what wouldhappen if Congress were to institute military conscription in orderto wage a war in Kosovo, Korea, or the Middle East. Campuses acrossthe country would likely erupt in protest - even though Congressobviously did not desire that result. The drug laws happen to havedifferent "disordering" effects. Perhaps the most obvious has beenturning our cities into battlefields and upending the normal socialorder.

Drug prohibition has created a criminal subculture in our innercities. The immense profits involved in a black-market businessmake drug dealing the most lucrative endeavor for many people,especially those who care least about getting on the wrong side ofthe law.

Drug dealers become the most visibly successful people ininner-city communities, the ones with money, and clothes, and cars.Social order is turned upside down when the most successful peoplein a community are criminals. The drug war makes peace andprosperity virtually impossible in inner cities.

Sixth, the drug laws break up families. Too many parents havebeen separated from their children because they were convicted ofmarijuana possession, small-scale sale of drugs, or some othernon-violent offense. Will Foster used marijuana to control the painand swelling associated with his crippling rheumatoid arthritis. Hewas arrested, convicted of marijuana cultivation, and sentenced to93 years in prison, later reduced to 20 years. Are his threechildren better off with a father who uses marijuana medicinally,or a father in jail for 20 years?

And going to jail for drug offenses isn't just for men any more.In 1996, 188,880 women were arrested for violating drug laws. Mostof them did not go to jail, of course, but more than two-thirds ofthe 146,000 women behind bars have children. One of them is BrendaPearson, a heroin addict who managed to maintain a job at asecurities firm in New York. She supplied heroin to an addictfriend, and a Michigan prosecutor had her extradited, prosecuted,and sentenced to 50 to 200 years. We can only hope that her twochildren will remember her when she gets out.

Seventh, drug prohibition leads to civil liberties abuses. Thedemand to win this unwinnable war has led to wiretapping,entrapment, property seizures, and other abuses of Americans'traditional liberties. The saddest cases result in the deaths ofinnocent people: people like Donald Scott, whose home was raided atdawn on the pretext of cultivating marijuana, and who was shot andkilled when he rushed into the living room carrying a gun; orpeople like the Rev. Accelyne Williams, a 75-year-old minister whodied of a heart attack when police burst into his Boston apartmentlooking for drugs - the wrong apartment, as it turned out; orpeople like Esequiel Hernandez, who was out tending his family'sgoats near the Rio Grande just six days after his 18th birthdaywhen he was shot by a Marine patrol looking for drug smugglers. Aswe deliberate the costs and benefits of drug policy, we should keepthose people in mind.

Students of American history will someday ponder the question ofhow today's elected officials could readily admit to the mistakenpolicy of alcohol prohibition in the 1920s but continue the policyof drug prohibition. Indeed, the only historical lesson that recentpresidents and Congresses seem to have drawn from the period ofalcohol prohibition is that government should not try to outlaw thesale of alcohol. One of the broader lessons that they should havelearned is this: prohibition laws should be judged according totheir real-world effects, not their promised benefits.

Intellectual history teaches us that people have a strongincentive to maintain their faith in old paradigms even as thefacts become increasingly difficult to explain within thatparadigm. But when a paradigm has manifestly failed, we need tothink creatively and develop a new paradigm. The paradigm ofprohibition has failed. I urge members of Congress and allAmericans to have the courage to let go of the old paradigm, tothink outside the box, and to develop a new model for dealing withthe very real risks of drug and alcohol abuse. If the 106thCongress will subject the federal drug laws to that kind of newthinking, it will recognize that the drug war is not the answer toproblems associated with drug use.

Respect State Initiatives

In addition to the general critique above, I would like to touchon a few more specific issues. A particularly tragic consequence ofthe stepped-up war on drugs is the refusal to allow sick people touse marijuana as medicine. Prohibitionists insist that marijuana isnot good medicine, or at least that there are legal alternatives tomarijuana that are equally good. Those who believe that individualsshould make their own decisions, not have their decisions made forthem by Washington bureaucracies, would simply say that that's adecision for patients and their doctors to make. But in fact thereis good medical evidence about the therapeutic value of marijuana -despite the difficulty of doing adequate research on an illegaldrug. A recent National Institutes of Health panel concluded thatsmoking marijuana may help treat a number of conditions, includingnausea and pain. It can be particularly effective in improving theappetite of AIDS and cancer patients. The drug could also assistpeople who fail to respond to traditional remedies.

More than 70 percent of U.S. cancer specialists in one surveysaid they would prescribe marijuana if it was legal; nearly halfsaid they had urged their patients to break the law to acquire thedrug. The British Medical Association reports that nearly 70percent of its members believe marijuana should be available fortherapeutic use. Even President George Bush's Office of DrugControl Policy criticized the Department of Health and HumanServices for closing its special medical marijuana program.

Whatever the actual value of medical marijuana, the relevantfact for federal policymakers is that in 1996 the voters ofCalifornia and Arizona authorized physicians licensed in the stateto recommend the use of medical marijuana to seriously ill andterminally ill patients residing in the state without being subjectto civil and criminal penalties.

In response to those referenda, however, the Clintonadministration announced, without any intervening authorizationfrom Congress, that any physician recommending or prescribingmedicinal marihuana under state law would be prosecuted. In theFebruary 11, 1997, Federal Register the Office of National DrugControl Policy announced that federal policy would be as follows:(1) physicians who recommend and prescribe medicinal marijuana topatients in conformity with state law and patients who use suchmarijuana will be prosecuted; (2) physicians who recommend andprescribe medicinal marijuana to patients in conformity with statelaw will be excluded from Medicare and Medicaid; and (3) physicianswho recommend and prescribe medicinal marijuana to patients inconformity with state law will have their scheduled-drug DEAregistrations revoked.

The announced federal policy also encourages state and localenforcement officials to arrest and prosecute physicians suspectedof prescribing or recommending medicinal marijuana and to arrestand prosecute patients who use such marijuana. And adding insult toinjury, the policy also encourages the IRS to issue a revenueruling disallowing any medical deduction for medical marijuanalawfully obtained under state law.

Clearly, this is a blatant effort by the federal government toimpose a national policy on the people in the states in question,people who have already elected a contrary policy. Federalofficials do not agree with the policy the people have elected;they mean to override it, local rule notwithstanding - just as theClinton administration has tried to do in other cases, such as theCalifornia initiatives dealing with racial preferences and statebenefits for immigrants.

Congress and the administration should respect the decisions ofthe voters in Arizona and California; and in Alaska, Nevada,Oregon, and Washington, where voters passed medical marijuanainitiatives in 1998; and in other states where such initiatives maybe proposed, debated, and passed. One of the benefits of a federalrepublic is that different policies may be tried in differentstates. One of the benefits of our Constitution is that it limitsthe power of the federal government to impose one policy on theseveral states.

Repeal Mandatory Minimums

The common law in England and America has always relied onjudges and juries to decide cases and set punishments. Under ourmodern system, of course, many crimes are defined by thelegislature, and appropriate penalties are defined by statute.However, mandatory minimum sentences and rigid sentencingguidelines shift too much power to legislators and regulators whoare not involved in particular cases. They turn judges into clerksand prevent judges from weighing all the facts and circumstances insetting appropriate sentences. In addition, mandatory minimums fornonviolent first-time drug offenders result in sentencesgrotesquely disproportionate to the gravity of the offense.Absurdly, Congress has mandated minimums for drug offenses but notfor murder and other violent crimes, so that a judge has morediscretion in sentencing a murder than a first-time drugoffender.

Rather than extend mandatory minimum sentences to furthercrimes, Congress should repeal mandatory minimums and let judgesperform their traditional function of weighing the facts andsetting appropriate sentences.

Conclusion

Drug abuse is a problem, for those involved in it and for theirfamily and friends. But it is better dealt with as a moral andmedical than as a criminal problem - "a problem for the surgeongeneral, not the attorney general," as Mayor Schmoke puts it.

The United States is a federal republic, and Congress shoulddeal with drug prohibition the way it dealt with alcoholProhibition. The Twenty-First Amendment did not actually legalizethe sale of alcohol; it simply repealed the federal prohibition andreturned to the several states the authority to set alcohol policy.States took the opportunity to design diverse liquor policies thatwere in tune with the preferences of their citizens. After 1933,three states and hundreds of counties continued to practiceprohibition. Other states chose various forms of alcohollegalization.

Congress should withdraw from the war on drugs and let thestates set their own policies with regard to currently illegaldrugs. The states would be well advised to treat marijuana,cocaine, and heroin the way most states now treat alcohol: Itshould be legal for licensed stores to sell such drugs to adults.Drug sales to children, like alcohol sales to children, shouldremain illegal. Driving under the influence of drugs should beillegal.

With such a policy, Congress would acknowledge that our currentdrug policies have failed. It would restore authority to thestates, as the Founders envisioned. It would save taxpayers' money.And it would give the states the power to experiment with drugpolicies and perhaps devise more successful rules.

Repeal of prohibition would take the astronomical profits out ofthe drug business and destroy the drug kingpins that terrorizeparts of our cities. It would reduce crime even more dramaticallythan did the repeal of alcohol prohibition. Not only would there beless crime; reform would also free police to concentrate onrobbery, burglary, and violent crime.

The War on Drugs has lasted longer than Prohibition, longer thanthe War in Vietnam. But there is no light at the end of thistunnel. Prohibition has failed, again, and should be repealed,again.

David Boaz

Subcommittee on Criminal Justice, Drug Policy, and Human Resources
Committee on Government Reform
United States House of Representatives