It is generally agreed that the use of recreational drugs is undesirable. The same can be said of many other practices that are not illegal, such as the use of tobacco and the abuse of alcohol. Only the use of drugs is currently criminalized by all levels of government in the United States and is the subject of a “war” to exterminate the practice.
Many scholars and legal authorities who have thought deeply about the validity and appropriateness of that war, about its risks and benefits, have come to the conclusion that the war is not only not worth the effort but is counterproductive and aggravates the problem it is intended to solve. It is of interest in this regard that the United States conducted a 15-year war against alcohol (Prohibition), but abandoned it 66 years ago as a costly, wasteful, socially undesirable, counterproductive failure, and caused formation of more criminal gangs. So we are left with the question. What is wrong with criminalizing drugs and conducting a war? There are a number of answers.
1. The very expensive campaign to reduce the inflow of drugs in to the US is a demonstrable failure. More drugs than ever are coming in. Furthermore, our attempts to limit drug production at the source (e.g. Colombia) have resulted in various counterproductive foreign-policy debacles.
2. The illegality of drugs has led to the evolution of vast structure of gangs and criminal cartels in the US and elsewhere in the world, because of the immense profits to be made from the sale of illegal substances. The structure has helped perpetuate the old Mafia gangs and has led to a flowering of new Mafias of South American, Asian, and Russian origin: This course of events closely parallels the history of alcohol Prohibition, which was the principal stimulus to the evolution of the old Mafia, which did not exist before Prohibition.
3. The fights over turf between drug-dealers and their gangs has led to tremendous proliferation of hand-guns, marked increase in gun-related violence, the death of large numbers of innocent children and adults, and the blighting of large parts of the inner cities, which have become, in essence, war zones.
4. In order to expand their operations, drug dealers actively recruit and “hook” new addicts, the younger the better. These addicts, in turn, recruit others to whom they can sell drugs to support their habits.
5. To support their habits, drug users often have to resort to crimes of all kinds, including burglary, mugging, etc. An extremely high proportion of all persons arrested for violent crimes are found to be drug addicts: the prisons fill up with persons who might well not have committed crimes if not for the constant need for money to buy drugs.
6. Tremendous numbers of arrests are made for mere possession and use of drugs, which has necessitated a vast and expensive expansion of our prison system. Unreasonably long sentences are given for what are essentially victimless “crimes” which causes overfilling of prison, disrupts often poor families, and breeds disrespect for the law.
7. The effects of the drug laws are racist to the core. There is a clear double standard wherein middle- and upper-class drug users, usually white, are given a slap on the wrist while poor users, usually black or Hispanic, are jailed for unreasonably long terms for the same or even lesser offenses. The fact that our prison population is so heavily tilted towards minorities is a direct consequence of this distorted justice.
Against these negative consequences of society’s war against drug use, it is hard to discern any real benefits or justification. Certain things are often cited, but are not very convincing:
1. Use of drugs has undesirable medical consequences. In point of fact, such consequences are hard to document. There are rare kidney problems with heroin and cardiac problems with cocaine, but these pale into insignificance next to the deleterious medical effects of legal “drugs” such as alcohol and tobacco.
2. Drugs breed violence. It is, of course, not the drugs themselves but their illegality that breeds the violence. The enormous sums of money to be made by selling anything illegal fuel the entire violent drug-dealing community.
3. Children have to be protected. Certainly we don’t want children using drugs, but the drug war simply doesn’t work to prevent it. Spending the money on education about drugs would be far more effective.
4. Use of “soft” drugs (e.g. marijuana) leads to use of “hard drugs” (e.g. cocaine and heroin). There is virtually no evidence that this is so. Actually the use of alcohol is more likely to lead to use of hard drugs.
5. When one peels away the façade of unconvincing reasons, there remains a core of Puritan moralizing: “it’s just not right.” The dubious luxury of indulging our feeling of moral superiority does not balance the downside of the war, as described above.
What, then, can we propose:
1. The possession and use of all drugs should be decriminalized. Existing laws that criminalize them should be repealed.
2. Persons currently incarcerated solely for drug possession should be released to education/rehabilitation programs.
3. Drugs should be available by regulated sale, like alcohol, and should be freely prescribable by physicians.
4. Persons who use drugs should be encouraged to join rehabilitation programs that will encourage a drug-free life, but should not be coerced to join them.
5. A broad educational effort should be mounted to dissuade people, especially children, from using drugs, but because it is self-destructive and counterproductive, not because it is illegal.
6. I am gratified that such disparate groups such as the State of Arizona, the Catholic Bishops Conference of New York, California’s Prop 36, and many distinguished active and retired judges have joined in this approach.