Drugs and Crime: Legal Aspects

A broad consensus has emerged that punishments for nonviolent drug offenses are too severe. Many commentators and citizen groups (such as Families Against Mandatory Minimums) argue that the mandatory minimum sentences for drug offenders should be repealed to restore judicial discretion in sentencing. Among other difficulties, these sentences create "cliffs," and thus are alleged to produce the very inequities they were designed to rectify. The mandatory minimum for an offender who sells 500 grams of cocaine, for example, is double that of an otherwise identical offender who sells 499 grams. In addition, sentences are based on the weight of the drugs seized, rather than on the role of the defendant in the distribution scheme.

Many thoughtful and knowledgeable citizens make more radical criticisms, arguing that contemporary drug policy is fatally flawed and should be drastically revised. They allege that drug prohibition is both ineffective and counterproductive. They point to the fact that the billions of dollars expended on law enforcement over dozens of years has failed to achieve a significant reduction in either the demand or the supply of illicit drugs. A few statistics help to tell the story. In 2000, approximately 460,000 drug offenders were incarcerated—about the same number as the entire prison population in 1980. Nearly one in four prisoners in America is behind bars for a nonviolent drug offense. In each year since 1988, more drug offenders than violent criminals have been incarcerated. Nonetheless, about 80 or 90 million living Americans have experimented with illicit drugs at some time in their lives. Every day, about sixty-four thousand Americans try marijuana for the first time. In 1999, approximately 15 million Americans were regular users of illicit drugs. Although this figure is roughly two-thirds of the peak of illicit drug use in 1979, it is comparable to statistics in preceding years. An ongoing effort often likened to a "war" has had little obvious impact on recent trends in drug use. Totalitarian countries like China may have succeeded in reducing its population of addicts from about 40 million (in the end of the 1930s) to almost zero in the span of a single generation. A free society, however, may lack acceptable means to reduce demand further.

Efforts to curb supply have proven no more successful. In 1999, 90 percent of high school seniors reported that marijuana is fairly easy or very easy to obtain; 44 percent say the same about cocaine, and 32 percent say the same about heroin. The street price of most illicit drugs has fallen since 1980—sometimes dramatically—indicating that quantities remain abundant. Even when eradication programs are successful in some countries (such as Peru, Bolivia, and Afghanistan), other countries (like Mexico) simply increase production to fill the void. Sometimes, production moves to the United States; at the outset of the twenty-first century, much and perhaps most of the marijuana consumed in this country is grown domestically. Economic considerations indicate that effective curbs on production are unrealistic. The value of global drug markets exceeds the GNP of 90 percent of countries in the United Nations. Prohibitionists frequently demand to redouble efforts to curtail supplies when the above statistics are cited. Skeptics ask why they should suppose that success is possible tomorrow, when efforts have failed thus far.

Just as importantly, drug prohibitions are said to be counterproductive in many ways. Drug prohibitions have created enormous profits for organized crime, contributed to widespread corruption in law enforcement, increased hypocrisy and mistrust, decreased the purity and safety of drugs, eroded civil liberties, glamorized drugs through the "forbidden fruit" phenomenon, discouraged the use of illicit drugs for legitimate medical purposes, fostered disrespect for law and legal institutions, distorted foreign policy, and placed a lucrative industry beyond the reaches of taxation.

Three counterproductive effects are especially worrisome. First, drug prohibitions have always been enforced more vigorously against minorities. Although whites and blacks are roughly comparable in their rates of drug use, blacks are arrested, prosecuted, and punished for drug offenses far more frequently and harshly than whites. In 2000, about ten million whites and two million blacks were current users of drugs. Even though white drug users outnumber blacks by a 5-to-1 margin, blacks comprise 62.7 percent and whites 36.7 percent of all drug offenders admitted to state prisons. These racial disparities are significantly higher in some states than in others. In Maryland, blacks constitute 90 percent of all drug admissions. In Illinois, the state with the highest rate of black male drug offender admissions to prison, a black man is fiftyseven times more likely to be sent to prison on drug charges than a white man. Some of these disparities result from controversial practices of "racial profiling"—the police practice of stopping, searching, and questioning criminal suspects solely on the basis of their race.

Second, drug prohibitions have a significant impact on women and their families. Between 1990 and 1997, the number of women serving time in prison for drug offenses nearly doubled, compared to a 48 percent increase in the number of men in prison for drug offenses. Forty-four percent of women incarcerated for drug offenses were convicted of mere possession. The impact of drug prohibitions has fallen disproportionately on black women. Black women constitute 6.3 percent of the national adult population and 7 percent of prison drug admissions; white women constitute 43.2 percent of the national adult population but only 5.4 percent of drug admissions. Punishing women is especially harmful to the welfare of their children, who are more likely to become criminals themselves when their mothers are incarcerated.

Finally, drug prohibitions have had a terrible impact on the lives of tens of millions of Americans whose only crime has been the use of drugs. Simple possession was the most serious conviction in 28 percent of drug offenders sentenced to state prison. By 1996, the median sentence imposed for mere possession of a controlled substance in state courts rose to twenty-four months. After release, these individuals are less employable, more likely to be rearrested, and ineligible for many public benefits and services.

Those who defend the status quo are understandably disturbed by the foregoing problems. Still, supporters of prohibitionist policies typically counter that a relaxation in punishment would swell the numbers of drug users and the myriad social pathologies associated with drug use. Criminal justice experts are divided on such issues as whether more or less economic crime would result from less punitive policies. Reduced punishments for sellers would probably decrease the cost of drugs, so users might not need to resort to property offenses to obtain the money to buy drugs. On the other hand, reduced punishments would be likely to increase the number of drug users, thereby expanding the size of the population prone to commit economic crimes. Experts also disagree about the extent of psychopharmacological crime caused by the use of various drugs. Public anxiety about drug use is fueled by the perception that people under the influence of drugs often behave violently and irrationally. Evidence suggests, however, that the effects of drugs on aggression are mediated by individual predispositions, social expectations, and cultural differences. Changes in these psychopharmacological effects are impossible to predict in the event that the criminal justice system became more tolerant of the use of various drugs.

Even apart from economic and psychopharmacological crime, many thinkers in criminal justice regard drug control as crime control. Violent crime has fallen precipitously in the United States throughout the 1990s. The enforcement of petty drug offenses (especially in big cities like New York) has been more vigorous over the same period of time. These two phenomena are likely to be related. The kinds of persons arrested and punished for drug offenses (e.g., young, male, black, willing to defy authority) overlap significantly with the kinds of persons who are likely to commit violent crimes. If drug prohibitions were enforced less vigorously, some predict an eventual increase in the crime rate. Others dispute these allegations.

Significantly, public opinion seems not to regard this dispute as pivotal. About two-thirds of the American public say they would oppose the legalization of cocaine and heroin, even if they could be guaranteed that it would lead to less crime. This finding suggests that public support for punitive policies is more about moral values than about many of the tangible harms that drug use is said to cause. William Bennett and Barry McAffrey—the country's two most prominent "drug czars"—have also characterized drug prohibitions as a moral crusade in several publications from the Office of the National Drug Control Policy.

Perhaps the most hotly contested issue between prohibitionists and their critics is how the failure to punish users would affect the incidence of drug use. Estimates vary wildly. What data are helpful in attempts to answer this question? The recent experience in many European countries may be suggestive. By 1999, the use of marijuana had been decriminalized in many parts of Europe (Italy, Spain, Switzerland, Ireland, and parts of Germany and Austria), and is openly tolerated in the Netherlands. Yet rates of illicit drug use (apart from heroin) are never higher, and usually are much lower, than those in the United States.

Models of drug control should not assume that the only or most effective means to discourage the use of illicit drugs is by punishing offenders. The deterrent efficacy of drug prohibition may be marginal. Approximately seven-eights of frequent users of cocaine or heroin are never arrested. Few nonusers of illicit drugs indicate that they would be willing or eager to experiment if they could be confident that they could escape detection. Significant reductions in the use of licit substances such as tobacco and alcohol have been achieved in the last two decades of the twentieth century without the need to resort to criminal punishment. Public advertising campaigns have helped people recognize the health hazards posed by these substances. In addition, many private companies test employees for illicit drug use. States can also implement licensing, prescription controls, time and place restrictions, taxation, zoning ordinances, bans on advertising, and a host of other measures to discourage use.

Even those who are firmly persuaded that our drug policies are fundamentally flawed disagree about what should replace them. "Harmreduction" has become a popular framework for evaluating alternatives to prohibition. According to this perspective, an ideal drug policy should strive to minimize the sum of harm or disutility caused by drug use and by drug law enforcement. This objective has an obvious plausibility. Experts disagree, however, about which combination of policies is most likely to achieve this goal. Moreover, the supposition that our policies should strive to minimize harm threatens to lose sight of the principles that many believe to be at stake in drug prohibition. The allegation that drug policies are unjust is independent of the foregoing objections, inasmuch as it does not depend on whether drug prohibitions can be made to work, or to produce more good than harm. Of course, arguments of principle are made on both sides of the debate.

Arguments in favor of fundamental change in existing drug policy are difficult to construct in the absence of a detailed argument in support of the status quo to which they can respond. Drug prohibitions have been defended as necessary to protect the young, to reduce crime, to safeguard public health, to prevent moral corruption, and to reverse just about everything that anyone has ever believed to be deficient about contemporary society. There may be no evil that has not been blamed on drugs. A comprehensive argument for radical change must rebut each of these arguments for criminalization.

Little about drug policy seems to be settled at the beginning of the twenty-first century. The waning of the "crack epidemic" of the late 1980s—and the public hysteria that surrounded it—may help to make the political climate more receptive to change. The inevitable development of new drugs—such as those used to increase sexual potency and pleasure—threaten to create problems for existing regulatory schemes. One thing is clear. Ambitious calls to achieve a "drug-free" society are doomed to failure. The use of psychoactive substances to alter consciousness and produce euphoria is pervasive in human history. No known societies (except perhaps that of the Eskimos) have been "drug-free." Some researchers have speculated that the desire to alter consciousness may be an innate, biological characteristic of our species.