Drug Decriminalization

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.