Some Musings on the Drug War

The Katrina aftermath exposed to all but the most willfully blind the racial indifferences of our government. But hurricanes don't strike every day, thankfully so. And these injustices go on every day under our noses, unexposed, ignored. One of the most pernicious of which continues to be the so called war on drugs. Some keenly brilliant fellow once said that if the drug laws in this country were as rigorously enforced against middle-classed white kids as they are against the poor and the black, that politicians would no longer be able to countenance supporting the drug war. As long as we're sending to prison people who look like they belong in prison, it all seems to make sense. But were we to ever start sending young Ashey and young Wilson upstate for smoking some hash, we'd come to understand quite quickly how stupid the whole thing is.

In the first place, it's fairly clear that the penal system is a ridiculously poor approach to dealing with the real social costs that do occur due to the use of some drugs. And in fact, it tends to increase and exacerbate those very social costs. Treatment, though a questionable approach to those who don't in earnest want to be rehabilitated of their drug use, at the very least avoids the exacerbation of these social costs, and is more than marginally more effective at solving the problem then prison sentences are. But even if treatment isn't an optimal approach to dealing with drug issues, it's clear that criminalization and the crude bludgeoning it brings has been a complete failure at both preventing drug use and rehabilitating those who do.

If we accept these assertions as true, there remains no compelling justification for even punishing those who violate drug laws. To get at a dessert theory of punishment for a given crime, it seems to me that we need to first examine why we chose to criminalize the underlying behavior. Keeping in mind an inherent liberty man has to do as he will, either under the natural law or a contractarian approach, we as a society do not have the right to criminalize behavior for the good of the individual. We do not have the right as a society to proscribe the private behaviors of the individual as per se evil without more. That is to say that we cannot say someone deserves to be punished, in a retributive sense, for behavior that were it not criminalized we wouldn't say deserves to be punished.

The justification we as a society have for attaching criminal stigma to drug use is a consequentialist one. Drug use produces external social costs that we, as a society, have the right to curtail, not for the good of the offender in a paternalistic sense, but for the good of ourselves as a society. To justify the punishment of such regulation, the punishment must survive this consquentialist approach. That is, the overall good caused by the punishment must exceed the overall harm caused by the punishment. If we're worse off by punishing behavior that harms us, than it doesn't make sense to punish it, unless there are compelling reasons of dessert which are completely absent in this context. The evidence compiled is pretty clear that the penal approach to the drug war has completely failed this consequentialist test. As such, unless we are ruled by a sovereign with the right to demand subservience to his strange whims, the drug war is in some sense illegitimate. We are in fact ruled by such a sovereign, though that sovereign be ourselves.

Which makes the demand to reform these illegitimate drug laws which are the basis for one of the gravest injustices our society knows all the more urgent. Yet it is so very strange that this is an issue that is completely ignored politically. The injustice itself makes it so. As we discussed earlier, the need for reform would be clear to all if it affected affluent whites as it did poor blacks. But this doesn't explain all of it. Certainly, the war in Iraq tends to affect the poor to a much greater degree than it affects the affluent, and opposition to that has been viable. Yet our politics is silent about the war on drugs, which has a similar distribution of effects, and costs taxpayers about $40 billion a year. And yet the social costs, multiply that number. For example, from 1987 to 1998 state spending on corrections increased by 30% while spending on higher education decreased by 18.2%. And state prison budgets are growing twice as fast as spending on public colleges and universities.* Almost every single person with intimate knowledge of our implementation of the drug laws, across party lines, including judges, prosecutors, and law enforcement has concluded that the war on drugs is a monumental and incredibly costly failure, and yet as a political matter, there's a strange silence.

I do not know whether out and out legalization is the best approach to the issue, but I do know that serious reform of our current laws is needed, and I believe that we should encourage our elected officials to make some of these necessary reforms. For example, the higher education drug policy provision forbids loans and federal assistance for college to students convicted of a drug related offense. This ill-conceived provision, produces enormous harm to poor, middle class and predominantly minority students. Discouraging the benefits of a college education to these students seems an acutely designed deliberate stupidity. Ignoring the fact that the children of people the wealthy are unaffected by this provision, college education provides an important opportunity for many of these students to become productive members of society to those most in need of such an opportunity. Putting another obstacle in these students paths is not only foolish, but oppressive.

Since 2000, when this provision took effect, over 160,000 students have been affected, unnecessarily adversely affecting our nation's human capital, hurting the economy and increases the propensity for criminal activity.

Another issue in need of reform is the sentencing practices for drug offenses. An opportunity has recently been presented to Congress by a recent convoluted Supreme Court decision holding that the federal sentencing guidelines are not mandatory, providing a chance to re-examine approaches to federal sentencing, especially in terms of drug laws, including alternative sentences for drug crimes such as rehabilitation, and avoiding the unjustly long sentences of the rigid and harsh federal sentencing system.

Another issue before Congress is federal anti-drug practices, such as the Byrne Justice Assistance Grant program, which has produced corruption in state after state and led to the imprisonment of innocent people. For example in Tulia Texas a few years ago, 15% of the African American population was sentenced to decades in prison based on the uncorroborated testimony of a federal officer with a record of racial impropriety in the enforcement of the law. These defendants were all eventually pardoned. The task forces funded by these programs are prone to corruption and unaccountable to local tax-payers and thus are mired in scandal in many states already, and are in urgent need of reform.

I would encourage my readers to let their Congressman know about these issues and to think more seriously about the grave injustices perpetuated under the guise of the Drug War and force our politicians to address them.


Statistics from Drug Policy Alliance