This was my final paper for Advanced Criminology, the capstone course for my major. Enjoy. Don't plagiarize.
Drug use has been a
century-long concern for American lawmakers. The Harrison Narcotics
Act of 1914 was aimed at the eradication of opiates and heroin. “For
all practical purposes, despite a previous act that forbade the
importation of smoking opium, this was the beginning of all federal
regulation of recreational drug use.” The Marihuana Tax Act of 1937
followed, adding marijuana to the list of restricted substances. Both
acts were ostensibly aimed at taxing the importation and use of the
drugs but in reality were intended to prohibit the drugs. The 1937
act is also notable for misclassifying marijuana as a narcotic
despite the body of scientific evidence which stated that it was not
a narcotic substance. The Narcotics Control Act of 1956 increased the
penalties incurred for possession and sale of illicit drugs. As time
has passed, federal drug laws have become increasingly punitive.
Mandatory minimum sentencing, property seizures, and harsh fines are
characteristic of American policies from the 1970's to present.
(Rowe, 2006).
The prohibition of
drugs in the United States has been an outstanding factor in the
expansion of both the criminal justice system and the prison system.
Drug arrests have increased threefold since 1975, resulting in
ever-larger incarceration rates in both state and federal prisons.
Prison populations have climbed from six hundred thousand in 1975 to
almost two million people in 2008. In addition, prison
sentence-lengths have also increased. Most incarcerated individuals
are small time traffickers; only eleven percent of federal prisoners
are identified as major distributors. (Walker, 2011).
Despite the myriad
laws enacted prohibiting it, illicit drug use is common. 2008 data
from the National Household Survey suggests that twenty million
American citizens have used an illegal substance (which includes
fifteen million users of marijuana). Slightly less than two million
citizens have used cocaine. Two hundred thousand Americans have used
heroin. Roughly half of the American population reports to have used
an illegal drug on at least on occasion in their lifetime. More than
eighty percent of marijuana users report that use of the drug did not
serve as a gateway drug but that consumption of the plant is instead
a recreational activity. (Walker, 2011).
Police enforcement
has been the primary agent utilized for discouraging drug use.
Despite a high volume of arrests, little to no impact has been
realized in curbing drug availability. High school students report
that prohibited drugs like marijuana and cocaine are readily
available to them. Law enforcement agents report similar ease in
procuring drugs. “In short, police officers themselves do not
believe that their intensive antidrug efforts reduce the availability
of drugs. This is a damning indictment of police crackdowns.”
(Walker, 2011).
Criminal law
clearly has a very limited effect on controlling illegal drugs for
which a high demand exists. As long as the demand is present there
will be persons willing to provide the product. Increasing law
enforcement efforts culminate in criminal innovation and may force
drug users to substitute one product for another. As long as the
demand exists, the lure of profits ensure an endless line of
individuals willing to take the risk to supply the product. (Walker,
2011).
Opposition to drug
regulation stretches back for decades. In 1961 the Joint Committee of
the American Bar Association and the American Medical Association
presented a report which stated “drug addiction is primarily a
problem for the physician rather than the policeman, and it should
not be necessary for anyone to violate the criminal law solely
because he is addicted to drugs.” The Drug Abuse Council
recommended in 1980 that trying to eliminate drugs is an unrealistic
policy, instead observing that “adverse social conditions” are
part of the American landscape which cannot be solved through drug
policy. A 1989 report from the Research Advisory Panel for the State
of California noted that drug enforcement “has been manifestly
unsuccessful in that we are now using more and a greater variety of
drugs, legal and illegal.” The report continues, advising
decriminalization policies and cessation of the War on Drugs. (Gray,
2001).
In the face of drug
policy failures, advocacy for decriminalization and/or drug
legalization has been promoted as a possible policy change. A neutral
government study from 1972 entitled U.S. National Commission on
Marihuana and Drug Abuse recommended that marijuana possession
“should no longer be an offense” and that “casual distribution
of small amounts of marijuana for no or 'insignificant' renumeration
not involving profit should no longer be an offense.” The same
study concluded the following year that marijuana should be
completely removed from the narcotics list. By 1980 the Drug Abuse
Council encouraged legislation to “decriminalize at both state and
federal levels for the possession of small amounts of marijuana for
personal use.” (Gray, 2001). A 1994 directive from the American
Civil Liberties Union called for the “full and complete
decriminalization of the use, possession, manufacture and
distribution of drugs.” Public support for drug reform has also
grown, from twenty five percent in 1980 to forty four percent in
2009. (Walker, 2011).
Although sometimes
used interchangeably, legalization and decriminalization are distinct
terms towards a similar end: the removal of criminal sanctions for
the possession or sale of illegal drugs. Legalization is the term
used to describe the legal sale and possession of drugs. Proponents
of legalization may or may not embrace drug regulations similar to
those used by the Food and Drug Administration. Decriminalization
policies typically keep drug use illegal but decline to pursue and
prosecute drug users on an individual level. Much like laws regarding
alcohol and tobacco, advocates for drug reform wish to maintain
prohibition of drug use by minors.
Legalization and
decriminalization reform policies are embraced by members of all
political parties. Libertarians are the most outspoken proponents,
calling for complete and total drug reform. Advocates in the two
primary political parties typically wish to maintain some form of
regulation over drugs.
Decriminalization
proponents cite the legitimacy of the law as one reason to embrace
drug policy reform. “Many people are alienated from the law and the
criminal justice system because they believe the criminalization of
certain kinds of behavior interferes with their personal privacy, or
has bad consequences for the justice system, or both. It is possible
that decriminalization of certain offenses will remove that
alienation and increase respect for the law. As a result, according
to the idea of legitimacy, they may become more law-abiding with
respect to other laws.” (Walker, 2011).
The overreach of
the law is another reason that decriminalization policy is touted as
a viable policy alternative. Supporters of this stance argue that the
law should be aimed at actions that do actual harm and not on
victimless crime such as drug use and sale. The overreach of criminal
law results in several negative consequences. The first is that the
excessive laws place a heavy burden on the justice system. Focusing
on minor offenses leaves fewer resources for more serious criminal
activity. Second, no overwhelming public opinion exists for what
behaviors should be criminalized. While violent crimes, murder, and
property crimes are unanimously viewed as immoral, there are wildly
varying attitudes on drug use. This ties back to the legitimacy of
the law; respect for the law will suffer if law enforcement agents
interfere with behavior that is considered harmless. The third
consequence is the rise of criminal organizations centered on
supplying the demand for illicit goods. Criminal organizations can
further muddle the criminal justice process by corrupting agents of
the law. Lastly, members of both the criminal justice arena and the
healthcare system believe that the problems associated with drug use
are not problems that should be addressed through the justice system
but instead addressed through medical, psychological, and social
services. (Walker, 2011).
A popular
libertarian argument for legalization is that drug laws are a
violation of our civil rights. Although the right to use drugs is not
spelled out explicitly, the Ninth Amendment allows for the various
unnamed rights to which Americans are entitled. The Ninth Amendment
was put in place to protect citizen's freedom and autonomy. The
“widespread availability and use of controlled and illegal drugs
may be viewed as significant support for the claim that a larger
portion of society recognizes the right to use drugs as fundamental.”
Both sexual orientation cases and household privacy cases have been
successfully argued using the Ninth Amendment. The precedent set from
these cases allow for the assertion that the freedom to choose
whether or not to use drugs is a valid argument. That drug use may be
viewed by some people as immoral should not influence actors of the
government to pass laws which impede liberty. “The principle of the
right to privacy is not freedom to do certain acts determined to be
fundamental through some ever-progressing normative lens. It is the
fundamental freedom not to have life choices determined by a
progressively more normalizing state.” (Hardaway, 2003).
Another philosophy
supporting decriminalization is that of harm reduction. Advocates of
harm reduction point out that “some drug use is inevitable, and
that the goal of drug policy should be to reduce the harm associated
with drug use rather than eradicating all drug use through
criminalization.” (Beckett, 2004). Harm reduction is the umbrella
term under which several legalization arguments lie.
One harm reduction
argument for drug policy reform is the reduction of harm to
communities. The deterioration of families and communities is
inevitable given the number of citizens imprisoned for drug charges.
Another community threat is children's access to street drugs.
Legalization advocates point out that alcohol is harder for children
to obtain than illicit drugs. This is because the sale of alcohol is
regulated and sale to minors is enforceable. Street dealers are less
discriminatory regarding who they sell drugs to, for the allure of
profit is too great. The reduction of violence is also an aim of harm
reduction in communities. Drug dealers cannot plead their grievances
to the courts. Since no legitimate way to address their problems
exist, sellers are “left to their own enforcement techniques, which
frequently include intimidation and violence.” The violence
surrounding the drug trade has been in the public spotlight for years
without seeing any effective solution realized. (Gray, 2001).
Stopping the
deterioration of personal health additional rationale for harm
reduction tactics. The criminalization of drug use creates four
critical concerns. The first of these is that drug laws discourage
users from seeking medical attention regarding their hygiene and
well-being. Decriminalizing drug use would allow users to seek
medical attention without fear of reprisal. Secondly, there is no
oversight on the quality of illicit drugs. The strength and purity of
these substances can wreak havoc on a user who has been forced to
resort to obtaining their drugs from unknown sources. Regulation
could solve this problem. Third, communicable diseases can be spread
through intravenous drug users who share needles. Needle exchange
programs would prevent the spread of disease. Lastly, the inflated
price of street drugs forces users to engage in criminal activity
ranging from larceny to prostitution or murder. Regulation could
again be utilized to set prices and reduce crime related to drug use.
(Gray, 2001).
The labeling and
demonization of those involved in the drug trade is further argument
for legalizing drug use. America's policy-makers have shaped the drug
problem into a matter of crime and punishment. Along the way they
have abandoned the human element and have labeled the user as a
societal outcast. Drug users are rational human beings with their own
motivations, just like every other citizen. “Unfortunately, most
Americans have not learned this lesson, and they continue to allow
people who take illegal drugs to be stereotyped, demonized,
prosecuted, and jailed.” (Gray, 2001). A further problem with
demonizing drug users is that they are often portrayed as violent and
dangerous when that is not necessarily the truth. Our current drug
policies force a stark contrast between between the demon 'user' and
the dignified 'non-user' when the reality is that they are two groups
who share a large overlap.
Portuguese policy
changes regarding drug offenses have shown promise. In 2000 the rate
of drug injection among the general population was reported to be as
high as six people per one thousand of the population between the
ages of fifteen and sixty four. HIV cases were also on the rise and
had come to be a major concern of the Portuguese government. “The
judicial system was overloaded with drug users and traffickers.
Fearful of being prosecuted, many users didn't present to health
services.” (Vale de Andrade, 2010).
The Prime Minister
of Portugal prompted a panel to propose a national drug policy
centered not around enforcement but on the concept of harm reduction.
The policy proposed decriminalization of drug use. Enacted in 2000,
the new strategy did not enforce the possession of drug quantities
intended for personal use. The new policy also referred identified
drug users to Drug Addiction Dissuasion Commissions. Following this
reorientation of drug policy, “subsequent public discussion changed
the view of drug users from criminals to people needing help. It also
led to the conclusion that approaches that focus only on abstinence
are not appropriate for every drug user.” (Vale de Andrade, 2010).
The decade that
followed the policy changes displayed marked improvement. In 2005,
the rate of drug injection had dropped down between one to three
users per one thousand people. Deaths associated with drug use had
decreased from one hundred thirty deaths in 2001 to only twenty in
2008. The number of new diagnoses of HIV dropped from over fourteen
hundred in 2000 down to three hundred fifty cases in 2006. (Vale de
Andrade, 2010).
The Dutch
experience in Holland proves that harm reduction tactics combined
with decriminalization is an effective policy. The county has
recognized that drug use is commonplace and their laws reflect that
knowledge. The central aim of Dutch drug policy is “the prevention
and reduction of harm caused by drugs by reducing dangers of their
use both to the community and to the individual.” This policy
recognizes that drug use is a matter of public health, not that of
judicial concern. While the country maintains laws regarding
trafficking, possession of personal-use quantities of drugs is
decriminalized. Marijuana is readily available for purchase at
licensed coffee houses. A distinction is made between between what
the Dutch courts consider 'hard' and 'soft' drugs. 'Hard' drugs are
those which “involve an unacceptable degree of risk” such as
highly addictive substances like opiates and cocaine. Marijuana and
other recreational drugs for which lower risk of addiction occurs
fall under the 'soft' category. (Hardaway, 2003).
Doctors are allowed
to prescribe any drug to addicts in order to facilitate their
recovery from addiction, although methadone is preferred. The goal
for addicts is their continual engagement with society; demonization
and punitive measures are not encouraged. A needle exchange program
is in place for intravenous drug users. The program was based on the
assumption that exchange programs would lead to safer practices among
the drug using population. Increased drug use since the development
of the exchange program has not occurred. (Hardaway, 2003).
Dutch policy
regarding their youth population also display sound rationale. The
sale of drugs to children under sixteen is prohibited and strictly
enforced. Citizens sixteen and older can purchase marijuana in
various forms. Youth-education programs are “devoid of moralizing
messages and value judgments, and focus instead on the need to
rationally calculate the costs versus the benefits of using drugs.”
Comparing their data to that of a study done by the U.S. National
High School Survey, the Dutch claim to have comparatively lower
numbers in both drug use and frequency among youth populations.
Marijuana and cocaine use is nearly three times higher among American
students aged fifteen and below. For those aged seventeen and above,
cocaine use is fourteen times greater in the United States. This data
suggests that the Dutch policies have been successful in creating a
society that is able to discourage hard drug use by combining harm
reduction techniques and above-ground markets for marijuana.
(Hardaway, 2003).
The Dutch data on
adults suggests similar positive results stemming from their
mandates. Holland has a lower usage rate in their adults when
compared to the United States. Hard drug use is down to roughly two
percent of the population. This is remarkable considering that hard
drug use was occurring among fifteen percent of the population in
1979. Also notable is that since cocaine is decriminalized, there is
insignificant crack cocaine use amongst the population. Furthermore,
it should be pointed out that there is a degree of drug tourism
patronizing the country. Numbers suggest that a full third of the
drug using populace within Holland's borders are foreigners. “If
other countries adopted the Dutch approach, the problem, obviously,
would evaporate, since there would be no need for drug users to crowd
into one country” (Gray, 2001.)
Although
there are still federal laws prohibiting illicit drugs, more than a
dozen states have decriminalized marijuana possession. Individual
cities have also adopted this tactic, making possession arrests their
lowest priority or making possession a civil infraction rather than a
criminal violation. Evidence from the states and cities that have
decriminalized marijuana display that the strategy is viable. A
Connecticut study examining the states that had enacted
decriminalization policies found that “(1) expenses for arrest and
prosecution of marijuana possession offenses were significantly
reduced, (2) any increase in the use of
marijuana in those states was less than increased use in those states
that did not decrease their penalties and the largest proportionate
increase occurred in those states with the most severe penalties, and
(3) reducing
the penalties for marijuana has virtually no effect on either choice
or frequency of the use of alcohol or illegal 'harder' drugs such as
cocaine." (Connecticut Law Review Commission, 1997). A survey
among hospital emergency rooms concluded that "in contrast with
marijuana use, rates of other illicit drug use among ER [emergency
room] patients were substantially higher in states that did not
decriminalize marijuana use. The lack of decriminalization might have
encouraged greater use of drugs that are even more dangerous than
marijuana." (Model, 1993).
Virtually any policy we could adopt would be better than the
detrimental policies that are currently in place. Adopting outright
legalization would be a radical change and is unlikely to occur in
the foreseeable future. Regulated and taxed distribution programs,
while speculative, are still viable. The successful Dutch policies
that allow above-ground markets for marijuana indicate that
legalization and decriminalization policies are possible. If for no
other reason, above-ground markets could de-incentivize the drug
market and promote general welfare among our citizens. Starting with
the most realistic recommendations, listed below are several policy
alternatives to be considered.
Medical marijuana is an alternative if outright decriminalization of
the plant cannot be agreed upon. Indeed, a handful of states have
already adopted this policy in opposition to the federal policy. To
enact the policy at the federal level, marijuana would need to be
shifted from a Schedule I drug to a Schedule II substance. This would
allow doctors to prescribe the plant to their patients. “The
viability of marijuana to relieve the symptoms of cancer, AIDS, and
other serious illnesses has been proved, and it is heartless, if not
criminal, to deprive suffering patients the relief that this
substance can bring.” (Gray, 2001).
Legalizing marijuana and hemp could yield several beneficial
effects. Marijuana laws were established through the promotion of
fallacies and fear-mongering. The substance is certainly no more
harmful than alcohol or tobacco. Allowing adults to possess and use
the drug would ease the burden resting on the entire criminal justice
system. Taxation could yield similar returns to that of alcohol and
tobacco sales. Hemp possesses only a tiny fraction of the THC that
marijuana plants contain and is impotent when used as a mind-altering
drug. Harvesting the stalks of the plants could “re-institute a
historically profitable industry. The legalization of hemp will make
a major positive impact on our job market and our environment. At a
time when more and more of our old growth forests are being withdrawn
from logging operations, we can rejuvenate our industries for
paper...and many other products from fast-growing hemp.” (Gray,
2001).
Harm reduction techniques such as needle exchange programs are
beneficial and would be a move in the right direction as well. Needle
exchange programs “have been proven materially to increase the
health of the user while not increasing drug use or abuse. Further,
they have the collateral benefit...of removing them from our streets,
thereby reducing the risk” of injury and disease. (Gray, 2001).
Given the
ineffectiveness of drug laws at the federal level, handing drug
regulation back to individual states is another viable alternative.
There have been massive costs incurred and no beneficial results have
been realized. “We should...simply allow individual states to
regulate it.” While it may create complications regarding the
varying degrees of criminalization between states, this would be “a
minor problem compared with wasting time and resources by trying to
control it on a national level.” (Rowe, 2006).
Citations:
Beckett,
Katherine & Theodore Sasson. 2004. The Politics of Injustice:
Crime and Punishment in America. Second Edition. California:
Sage Publications.
Connecticut Law Review Commission.
1997. Drug Policy in Connecticut and Strategy Options: Report to
the Judiciary Committee of the Connecticut General Assembly.
State Capitol: Hartford.
Gray, [Judge] James P. 2001. Why Our
Drug Laws Have Failed and What We Can Do About It: A Judicial
Indictment of the War on Drugs. Philadelphia: Temple University
Press.
Hardaway, Robert M. 2003. No Price
Too High: Victimless Crimes and the Ninth Amendment.
Connecticut: Praeger Publishers.
Model, Karyn. 1993. The effect of
marijuana decriminalization on hospital emergency room episodes:
1975-1978. Journal of the American Statistical Association
88: 737-747.
Rowe, Thomas C. 2006. Federal
Narcotics Laws and the War on Drugs: Money Down a Rat Hole. New
York: Haworth Press.
Vale de Andrade, Paula. 2010. “Drug
decriminalisation in Portugal.” British Medical Journal 341:
c4554.
Walker, Samuel. 2011. Sense and
Nonsense about Crime, Drugs, and Communities. Seventh Edition.
California: Wadsworth.
