Drug Legalization, Criminalization, and Harm Reduction

June 16, 1999 • Testimony

Mr. Chairman, distinguished members of the subcommittee:

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

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.

Federal Drug Control Spending, FY 1981 to FY 1999, in BillionsToday 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. 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.

Percentage of Drug Offenders in Federal Prisons, 1980-1997Those 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. (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:

Other important results [of the Pentagon’s anti‐​drug efforts] include the arrest of virtually the entire Cali drug cartel leadership, the disruption of the Andean air bridge, and the hemispheric drug interdiction effort that has captured about a third of the cocaine produced in South America each year.

“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.

The Failures of Prohibition

Congress should recognize the failure of prohibition and end the federal government’s war on drugs. First and foremost, the federal drug laws are constitutionally dubious. As previously noted, the federal government can only exercise the powers that have been delegated to it. The Tenth Amendment reserves all other powers to the states or to the people. However misguided the alcohol prohibitionists turned out to be, they deserve credit for honoring our constitutional system by seeking a constitutional amendment that would explicitly authorize a national policy on the sale of alcohol. Congress never asked the American people for additional constitutional powers to declare a war on drug consumers.

Second, drug prohibition creates high levels of crime. Addicts are forced to commit crimes to pay for a habit that would be easily affordable if it were legal. Police sources have estimated that as much as half the property crime in some major cities is committed by drug users. More dramatically, because drugs are illegal, participants in the drug trade cannot go to court to settle disputes, whether between buyer and seller or between rival sellers. When black‐​market contracts are breached, the result is often some form of violent sanction, which usually leads to retaliation 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 in the United States. Make no mistake about it, the annual carnage that stands behind America’s still outrageously high murder rates has nothing to do with the mind‐​altering effects of a marijuana cigarette or a crack pipe. It is instead one of the grim and bitter consequences of an ideological crusade whose proponents will not yet admit defeat.

Third, drug prohibition channels over $40 billion a year into the criminal underworld. Alcohol prohibition drove reputable companies into other industries or out of business altogether, which paved the way for mobsters to make millions through the black market. If drugs were legal, organized crime would stand to lose billions of dollars, and drugs would be sold by legitimate businesses in an open marketplace.

Fourth, drug prohibition is a classic example of throwing money at a problem. The federal government spends some $16 billion to enforce the drug laws every year — all to no avail. For years drug war bureaucrats have been tailoring their budget requests to the latest news reports. When drug use goes up, taxpayers are told the government needs more money so that it can redouble its efforts against a rising drug scourge. When drug use goes down, taxpayers are told that it would be a big mistake to curtail spending just when progress is being made. Good news or bad, spending levels must be maintained or increased.

Fifth, the drug laws are responsible for widespread social upheaval. “Law and order” advocates too often fail to recognize that some laws can actually cause societal disorder. A simple example will illustrate that phenomenon. Right now our college campuses are relatively calm and peaceful, but imagine what would happen if Congress were to institute military conscription in order to wage a war in Kosovo, Korea, or the Middle East. Campuses across the country would likely erupt in protest — even though Congress obviously did not desire that result. The drug laws happen to have different “disordering” effects. Perhaps the most obvious has been turning our cities into battlefields and upending the normal social order.

Drug prohibition has created a criminal subculture in our inner cities. The immense profits involved in a black‐​market business make drug dealing the most lucrative endeavor for many people, especially those who care least about getting on the wrong side of the law.

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

Sixth, the drug laws break up families. Too many parents have been separated from their children because they were convicted of marijuana possession, small‐​scale sale of drugs, or some other non‐​violent offense. Will Foster used marijuana to control the pain and swelling associated with his crippling rheumatoid arthritis. He was arrested, convicted of marijuana cultivation, and sentenced to 93 years in prison, later reduced to 20 years. Are his three children 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. Most of them did not go to jail, of course, but more than two‐​thirds of the 146,000 women behind bars have children. One of them is Brenda Pearson, a heroin addict who managed to maintain a job at a securities firm in New York. She supplied heroin to an addict friend, and a Michigan prosecutor had her extradited, prosecuted, and sentenced to 50 to 200 years. We can only hope that her two children will remember her when she gets out.

Seventh, drug prohibition leads to civil liberties abuses. The demand 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 of innocent people: people like Donald Scott, whose home was raided at dawn on the pretext of cultivating marijuana, and who was shot and killed when he rushed into the living room carrying a gun; or people like the Rev. Accelyne Williams, a 75‐​year‐​old minister who died of a heart attack when police burst into his Boston apartment looking for drugs — the wrong apartment, as it turned out; or people like Esequiel Hernandez, who was out tending his family’s goats near the Rio Grande just six days after his 18th birthday when he was shot by a Marine patrol looking for drug smugglers. As we deliberate the costs and benefits of drug policy, we should keep those people in mind.

Students of American history will someday ponder the question of how today’s elected officials could readily admit to the mistaken policy of alcohol prohibition in the 1920s but continue the policy of drug prohibition. Indeed, the only historical lesson that recent presidents and Congresses seem to have drawn from the period of alcohol prohibition is that government should not try to outlaw the sale of alcohol. One of the broader lessons that they should have learned is this: prohibition laws should be judged according to their real‐​world effects, not their promised benefits.

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.

Respect State Initiatives

In addition to the general critique above, I would like to touch on a few more specific issues. A particularly tragic consequence of the stepped‐​up war on drugs is the refusal to allow sick people to use marijuana as medicine. Prohibitionists insist that marijuana is not good medicine, or at least that there are legal alternatives to marijuana that are equally good. Those who believe that individuals should make their own decisions, not have their decisions made for them by Washington bureaucracies, would simply say that that’s a decision for patients and their doctors to make. But in fact there is good medical evidence about the therapeutic value of marijuana — despite the difficulty of doing adequate research on an illegal drug. A recent National Institutes of Health panel concluded that smoking marijuana may help treat a number of conditions, including nausea and pain. It can be particularly effective in improving the appetite of AIDS and cancer patients. The drug could also assist people who fail to respond to traditional remedies.

More than 70 percent of U.S. cancer specialists in one survey said they would prescribe marijuana if it was legal; nearly half said they had urged their patients to break the law to acquire the drug. The British Medical Association reports that nearly 70 percent of its members believe marijuana should be available for therapeutic use. Even President George Bush’s Office of Drug Control Policy criticized the Department of Health and Human Services for closing its special medical marijuana program.

Whatever the actual value of medical marijuana, the relevant fact for federal policymakers is that in 1996 the voters of California and Arizona authorized physicians licensed in the state to recommend the use of medical marijuana to seriously ill and terminally ill patients residing in the state without being subject to civil and criminal penalties.

In response to those referenda, however, the Clinton administration announced, without any intervening authorization from Congress, that any physician recommending or prescribing medicinal marihuana under state law would be prosecuted. In the February 11, 1997, Federal Register the Office of National Drug Control Policy announced that federal policy would be as follows: (1) physicians who recommend and prescribe medicinal marijuana to patients in conformity with state law and patients who use such marijuana will be prosecuted; (2) physicians who recommend and prescribe medicinal marijuana to patients in conformity with state law will be excluded from Medicare and Medicaid; and (3) physicians who recommend and prescribe medicinal marijuana to patients in conformity with state law will have their scheduled‐​drug DEA registrations revoked.

The announced federal policy also encourages state and local enforcement officials to arrest and prosecute physicians suspected of prescribing or recommending medicinal marijuana and to arrest and prosecute patients who use such marijuana. And adding insult to injury, the policy also encourages the IRS to issue a revenue ruling disallowing any medical deduction for medical marijuana lawfully obtained under state law.

Clearly, this is a blatant effort by the federal government to impose a national policy on the people in the states in question, people who have already elected a contrary policy. Federal officials do not agree with the policy the people have elected; they mean to override it, local rule notwithstanding — just as the Clinton administration has tried to do in other cases, such as the California initiatives dealing with racial preferences and state benefits for immigrants.

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

Repeal Mandatory Minimums

The common law in England and America has always relied on judges and juries to decide cases and set punishments. Under our modern system, of course, many crimes are defined by the legislature, and appropriate penalties are defined by statute. However, mandatory minimum sentences and rigid sentencing guidelines shift too much power to legislators and regulators who are not involved in particular cases. They turn judges into clerks and prevent judges from weighing all the facts and circumstances in setting appropriate sentences. In addition, mandatory minimums for nonviolent first‐​time drug offenders result in sentences grotesquely disproportionate to the gravity of the offense. Absurdly, Congress has mandated minimums for drug offenses but not for murder and other violent crimes, so that a judge has more discretion in sentencing a murder than a first‐​time drug offender.

Rather than extend mandatory minimum sentences to further crimes, Congress should repeal mandatory minimums and let judges perform their traditional function of weighing the facts and setting appropriate sentences.


Drug abuse is a problem, for those involved in it and for their family and friends. But it is better dealt with as a moral and medical than as a criminal problem — “a problem for the surgeon general, not the attorney general,” as Mayor Schmoke puts it.

The United States is a federal republic, and Congress should deal with drug prohibition the way it dealt with alcohol Prohibition. The Twenty‐​First Amendment did not actually legalize the sale of alcohol; it simply repealed the federal prohibition and returned to the several states the authority to set alcohol policy. States took the opportunity to design diverse liquor policies that were in tune with the preferences of their citizens. After 1933, three states and hundreds of counties continued to practice prohibition. Other states chose various forms of alcohol legalization.

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

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

Repeal of prohibition would take the astronomical profits out of the drug business and destroy the drug kingpins that terrorize parts of our cities. It would reduce crime even more dramatically than did the repeal of alcohol prohibition. Not only would there be less crime; reform would also free police to concentrate on robbery, burglary, and violent crime.

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

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