Attorney General Jeff Sessions may be the only person in America who fails to recognize that the country has fought a losing war on drugs and it is time to end it. The war hath wrecked immense damage in terms of wasted money, fostering the creation of a prison-industrial process that incarcerated millions of people, often with a disparate racial impact. That is why his decision to again prosecute individuals for federal drug charges in states that have legalized marijuana usage is a horrible idea.
Twenty-five years ago I argued in “Rethinking Drug Criminalization Policies,” in 25 Texas Tech Law Review 151 (1993) that the then three decade long war on drugs had failed miserably and that it was time to shift away from a drug policy that criminalizes its use to one which treats it as a public health problem. That thesis was true then, and even more so now.
Richard Nixon launched the “war on drugs” with his presidency in 1968 and coined the phrase “war on drugs” in a 1971 speech. Since Nixon the war on drugs has been a mainstay of Republican if not bipartisan politics. The 1974 New York Rockefeller Drug laws penalized individuals with sentences of 15, 25 years, or even life in prison for possession of small amount of marijuana. Increased mandatory minimum sentences for crimes were ratcheted up for drugs and the move toward “three strikes and you are out laws” in the 1990s were adopted in part as a result of the drive to prosecute drug crimes. All told in the last decade the federal government has annually spent $20-25 billion on drug enforcement with states kicking in an additional $10-15 billion if not more. What has this money purchased?
There is little evidence that drug usage is down. Nearly 40% of high school students have reported using illegal drugs, up from 30% a decade ago. Some studies suggest 30 million or more Americans have used illegal drugs in any given year. Several hundred thousand individuals per year are arrested for mere use or possession of marijuana. Hard core use is not down and in fact in some cases it has stabilized or increased over time. Programs such as DARE show little sign of success, and the “Just say no” campaign that begin with Nancy Reagan also does not seem to have had much impact on drug usage.
But if the war on drugs has done little to decrease demand for drugs, it has had powerful unintended consequences. Interdiction and enforcement has created a significant and profitable market for illegal drugs both in the United States and across the world. Estimates are the marijuana is one of the most profitable cash crops in California and the drug violence in Mexico, resulting in approximately 60,000 deaths in the last eight years, is tied to American demand for drugs. The price of cocaine is now at record lows, courts are jammed with drug dockets, and prison populations have swelled with individuals whose only crimes were minor drug possession. States are now saddled with overcrowded bloated and aging prison populations, lives have been lost due to drug incarceration, and tax dollars that could have been spent on education, roads, or simply saved have been wasted on drug enforcement. On top of which, the war on drugs had a racial impact, jailing more people of color, saddling them with felonies, and then giving states the ability to strip away their civil rights, including the right to vote. Call the war on drugs the new slavery or Jim Crow and one would not be far from the mark.
American politicians never seemed to lose points by ranting against drugs or demanding tougher enforcement. Clearly they were addicted to our drug policies.
Drug criminalization has failed. This is not to say that drug use is not a problem. In some cases it is. But put into perspective, use of alcohol, tobacco, or the consumption of fatty foods and sugary drinks exacerbating obesity and heart disease are far greater problems in this country than the use of illegal drugs. In many cases recreational use of drugs is harmless, in others, such as with medical marijuana, its uses may in fact be beneficial. For others, personal and occasional use of drugs is a matter of privacy. But yes, one can concede that use of illegal drugs–including abuse of prescription drugs which is perhaps the biggest problem–is a public health issue. Lives can be lost to addiction and families broken up through abuse or neglect. Many of us know of friends or family members who lives read like a drug version of Billy Wilder’s 1945 classic The Lost Weekend. These individuals need medical help, not a prison term. Drug policy needs to be decriminalized and shifted to a public health approach. But many oppose decriminalization. Why?
The basis for opposing the use of drugs generally rests on one of two grounds. First, there is the moral claim that drug use is inherently immoral or bad because it alters the mind, debases human nature, or reduces the capacity for autonomy. The second claim for opposing the use of drugs is social, arguing that the use of drugs and drug related activity produces certain social costs in terms of deaths, black marketing, and crime. Another variant of this claim is that drug use diminishes social productivity by sustaining bad work habits, or by generating other social costs including increased health care costs.
Ok, one might concede that use of illegal drugs is bad or that it constitutes a public health problem that needs to be addressed. By having acknowledged this, the question is whether the current practice of drug criminalization and using police resources is the most effective policy to addressing this problem. One argument against the decriminalization approach is the sending signals argument. Specifically one major objection to the strategy proposed here is the argument that it would lead to an increase in drug usage and experimentation. Legalizing drugs would send a signal to individuals that drug usage is permissible and therefore more people would use them.
It is just not clear what impact making drugs legal or illegal has on their usage. Conceivably making them illegal creates a “forbidden fruit” aura around them that encourages their usage that would be abated by legalizing them. The same might be said for tobacco products and teenagers or perhaps for any other products or practices socially shunned. Regardless of the reasons why individuals choose to use drugs, there is little evidence that legalization has resulted in increased usage. In the Netherlands, decriminalization of some drugs has not lead to an increase in usage or in users trading up from soft to harder drugs. Five years after Portugal decriminalized many drugs in 2001, there too was little evidence that it led to increased drug use. Portugal’s drug usage rates remain among the lowest in Europe after legalization, while rates of IV-drug user infection rates and other public health problems dropped. In legalization of medical marijuana in California, the decriminalization might have changed attitudes towards the drug but there was no evidence of change in its use. So far the same is true in Colorado with outright legalized marijuana. There simply is no real evidence that legalization sends a signal that drugs are permissible and therefore more people use them.
The point here again is that the war on drugs has failed. It was a political narrative used by politicians for decades to promote their electoral interests at the expense of public good and taxpayers. The criminal justice-prison industrial complex has gotten addicted to the war on drugs, making billions of dollars off of criminalization of drugs, especially marijuana. If we truly wish to win the war against drugs, whatever that means, jailing people is not the way to do it. It is time to end that narrative and establish a different approach that sees drug usage as a public health issue. The $40 or so billion expended per year on drug enforcement could be better spent on other things. This is a taxpayer issue and maybe in these difficult fiscal times the opportunity is there to rethink drug policy in Minnesota and America.
The consequences of Sessions’ War on Drugs: The Sequel, is an effort to reverse the trend toward rethinking drug decriminalization. His policy will punitively punish those using marijuana for medical purposes, people often chronically if not terminally ill without any other hope. It will also target attorneys, accountants, doctors, nurses, and other professionals who work with the medical marijuana field. It may work cross-purposes to address the opioid crisis, hurting many of those in areas that voted for Trump. And it is simply not clear there are many in the Republican base who support Sessions’ move. It is a retro policy without clear political support or benefit.