War on Drugs Produces the Crime : Since We’re Losing, Why Not Debate the Alternative?

The failure of the Reagan Administration’s vaunted war on drugs is clear. Despite stunning successes by law enforcement and the criminal justice system that have produced too many drug defendants to try and too many convicted drug criminals to imprison, more dangerous drugs are available at ever-cheaper prices. Narco-terrorism is arguably the greatest danger to this hemisphere’s security, and drug-related crime, corruption, disease and youth gang activity are terrifying perils to our internal morality and safety. After about 70 years of unsuccessful federal warring on drugs, let us admit that law enforcement cannot win.

Those who insist on continuing the war using criminal law propose an array of tactics, ranging from the old and foolish, like arresting, trying, and imprisoning petty recreational users, to the new and creative, like urinalysis of those arrested for drug-related crimes followed by mandatory incarceration of user-criminals. Some innovations will make a marginal difference, but the consistent failure of all previous criminalization and law-enforcement proposals should make us profoundly skeptical of any claim that more money or new tactics will produce victory at acceptable cost to the budget and to cherished freedoms.

The drug war is unwinnable for two reasons, neither of which is law enforcement’s fault. First, we are fighting an enemy that large numbers of Americans do not consider their foe. At least 18 million Americans smoke marijuana regularly; an estimated 200,000 Angelenos use cocaine and another 80,000 use intravenous drugs. Moreover, foreign growers and manufacturers consider drugs a staple of their livelihood.

Second, criminalization of drugs paradoxically produces just the crime, corruption, disease and other costs that the war on drugs aims to prevent. Criminalization ensures that a product that many millions of people want will be very costly to users and monstrously profitable to traffickers. Therefore, many users must regularly commit crimes to pay for their drugs and the traffickers will have gargantuan sums to support their own sickening crimes and the corruption that makes the drug trade possible. In the 1920s Prohibition made organized crime powerful, and the present drug traffic threatens to entrench a new, sinister international network of criminals.

Criminalization is a costly approach to social problems that should be used only when its benefits outweigh its costs. The extraordinary costs and failures of criminalizing drugs are so apparent that it is foolish not to debate whether decriminalization might be a better response.

The gains from decriminalization are obvious. The crime, violence, corruption, disease and other problems that criminalization produces would decrease immensely. Narco-terrorists would be out of business, heavy users would no longer have to go on crime sprees to afford drugs, the spread of disease would be inhibited, and

traffickers will lose the money and power necessary to support their violence and to corrupt local, federal, and foreign officials. Most of the billions spent on drug law enforcement can be used for education, research and treatment.

Many opponents of decriminalization grudgingly admit these conclusions, but fear that decriminalization will produce administrative, medical and economic problems that will be even worse than the present mess. For example, decriminalization will undoubtedly fuel some increase in the amount of drug use and abuse. Although decriminalization is not a utopian suggestion and offers no certainty, the ravages of the drug war still suggest that it might be a preferable policy.

First, even if drug use is not criminal, most people will continue to avoid drugs if they understand the dangers. The declining use and abuse of nicotine, a dangerous drug, provide reason for optimism. Furthermore, all drug use is not abuse. Many people will use drugs now considered dangerous on only a limited and recreational basis, much as most drinkers use alcohol. For example, only about one-fifth of heroin users are abusers; the rest are recreational “chippers,” whose use appears to pose little threat to themselves or others. Possible increase in use will not always produce grave social or individual danger.

Related dangers, such as increased traffic accidents or loss in worker productivity, can be contained by careful regulation. Decriminalization does not mean that one must be permitted to drive, to be employed, or to take responsibility for others while on drugs. Criminalizing some drug-related behavior, such as drunk and drugged driving, is necessary. And testing workers who show evidence of intoxication while on the job or who engage in occupations involving responsibility for others is both constitutional and sensible. Workers under the influence of drugs while on the job could be dismissed or forced into treatment.

Crimes committed under the influence of drugs would not be excused, and might receive enhanced penalties in appropriate cases. Distribution of drugs to minors would remain criminal. Selling to kids would not be as profitable for the pushers, and heavy penalties for distributing to children would have wide support and would be easier to enforce if law enforcement were not involved with adult drug use.

The argument for decriminalization is decidedly not permissive or blindly libertarian. Proposing decriminalization does not mean that one favors immoral conduct or the general right of people to do whatever they want. Members of our society do not believe that people have a right to lie, to be cruel, to abuse alcohol and nicotine, or to engage in a host of other behaviors that are immoral or dangerous. We also believe, however, that it is not sound policy to criminalize all immoral behavior. Failure to criminalize conduct does not imply that it is moral. Society condemns lying, cruelty and drug use now and it will continue to do so.

Ultimately, only a shift in culture and attitudes can defeat drug use. Until this occurs, we must adopt the approach that produces the least harm. Decriminalization will produce a regrettable increase in misery for some people and other harms, but an open and tough-minded analysis of the drug problem suggests that ending the war on drugs may reduce the net cost to society. How long will we suffer the misery that prohibiting drug use produces before we will be willing to at least consider decriminalization?