How Effective is the Current Drug Policy

I am very pleased and honored to join you for this Provost's Thursday Faculty Forum. It is a special pleasure because the academic environment stimulated me to think about the so-called War on Drugs accompanied by memories of my undergraduate days when I was engaged in more wholesome intellectual activities than one encounters in law school.

I had majored in English Literature and Philosophy. Within that vast area, most of my junior and senior classes were in drama and criticism. My delusion of grandeur was that someday I would be the drama critic for the New York Times, but when I was about to graduate, I discovered that there were no openings. One of my professors said, "You might try graduate school, but I doubt you will find any openings at the New York Times even then. A bright boy like you, however, would probably do well in the law. It is a sad fact of life that there is an apparent need for more lawyers than drama critics."

I followed that very practical advice, but today, in a certain fashion, I can engage in my delusion. In Hamlet, Shakespeare teaches us that "Brevity is the soul of wit." I should therefore answer the question, "How Effective Is The Current Drug Policy?" rather tartly with the cryptic statement, "It isn't." I could even be redundant and say, "It isn't at all." At the risk of being verbose, I could say, "It is a colossal failure." To earn my meal today, however, I had best provide you with information rather than opinion or conclusion.

But first, let me return to Shakespeare and my academic proclivities. As a judge, and before that a lawyer, I have learned that courtrooms are not the center of the universe; that most of society functions very well indeed without lawsuits and trials. It is only when established conventions fail that judicial intervention is needed. Civilization is based on individual acceptance of normative behavior. In the simplest of terms, we create laws and people accept them. Those who fail or refuse to submit to law are either sanctioned in some way or excluded from society. (The death penalty is the most extreme form of exclusion.) Without a general assent, however, it is not possible for the law to function.

In 1849 the French writer, Alphonse Karr, wrote, "Plus ça change, plus c'est la meme chose." (The more that changes, the more it's the same thing.) The notion that when the law or policy fails to have general acceptance it fails to be law or policy has been with us as long as mankind has laid claim to civilization. This premise is neither original nor controversial. Shakespeare's Measure For Measure is based on this fundamental concept.

Written when Shakespeare was also creating his major tragedies, Measure For Measure is considered the darkest of his dark comedies. It is a particularly compelling play for me because it is about law and the nature of justice. The story begins with the recognition by its ruler, the Duke, that Vienna is experiencing growing political and moral corruption. Knowing that he bears great responsibility for this sad state of affairs because he has been lax in enforcing the existing laws, the Duke devises a plan to revive the waning discipline of civil authority. He explains his reasons thus:

Even like an o'ergrown lion in a cave,
That goes not out to prey. Now as fond fathers,
Having bound up the threatening twigs of birch,
Only to stick it in their children's sight
For terror, not to use, in time the rod
Becomes more mock'd than fear'd; so our decrees,
Dead to infliction, to themselves are dead,
And liberty plucks justice by the nose,
The baby beats the nurse, and quite athwart
Goes all decorum.

Our present War on Drugs began in 1972 when pot smoking demonstrators against the Viet Nam war mocked all authority, ridiculed Mr. Nixon and challenged the very assumption of his authority. Similarly, the Duke of Vienna, knowing that he had been too lenient for his subjects to accept the institution of harsh enforcement from him, appointed a deputy governor to enforce the laws and created the impression that he had left the city for an extended trip to Poland. Actually, he donned a disguise and remained in Vienna to see what would happen.

Of course the deputy was a strait-laced, moralistic type who had no tolerance for human frailties, save his own. The deputy lusted in his heart, but his first act was to arrest an individual for violating an old statute prohibiting pre-marital intercourse. The statute, of course, hadn't been enforced in years, but the deputy revived it to the amazement and consternation of the entire city -- the penalty was death.

In Measure For Measure, Shakespeare created a world, not unlike our own, as rotten as Denmark but without a tragic figure heroic enough to purge and redeem it. The result was a threatened society supported by comic remedies not at all dissimilar to our present circumstances where so much of public life is a series of vulgar exemplifications of pervasive moral decay. The War on Drugs, much like the Duke of Vienna's deputization of a stringent, puritanical martinet, attempts through stern measures to set the state right. The play and the current policy share yet another irony: Not only is justice not done, it is threatened and mocked. Perfect justice yields to temptation while apparent vice is extenuated by circumstances. In both instances the tendencies toward corruption and excess are blended with what is best and most noble in mankind.

The term "current drug policy" is suggestive of change. What was it before it was current and what will it be? What was current yesterday is supposed to be no longer current today and yet the policy, one emphasizing interdiction, police action and imprisonment with a pious, haughty and complacent nod to treatment and education remains the same. It remains so in spite of all evidence, even the government's own, demonstrating that the policy is foolish and unworkable.

Our current president spoke often on the campaign trail and now in office about the need to treat drug users and decrease the demand for drugs instead of vainly attempting to attack the supply side. His actions, however, belie his words. His nomination of John P. Waters as his new drug czar and the pronouncements of his attorney general, John Ashcroft, that he will escalate the War on Drugs suggest nothing more than a continuation of existing policies pursuing pure folly.

Mr. Walter, by the way, asserts that in his experience, the "biggest single contributor" to drug related crime is not trafficker violence, but violence by people using drugs. By contrast, in 1996 the Institute of Medicine reported that the most prevalent form of cocaine and heroin-related violence is the result of the violent nature of illicit drug selling and distribution. The Report notes further that criminal activity increases significantly during times of narcotic dependence although most are nonviolent property crimes. Marijuana use decreases aggression and threatening behavior. The crimes by drug users are committed in order to pay for drugs in the highly inflated black market. In other words, the crimes are caused by money, not by the pharmacological effects of drug ingestion.

Despite the billions of dollars spent each year by the federal government in drug enforcement programs, less that $1 out of every $100 is spent on research and evaluation. As recently as March 29 of this year the National Research Council of the National Academy of Science and the National Academy of Engineering advised that the nation's ability to evaluate whether the drug policies even work is no better now than it was twenty years ago when the War on Drugs was escalated from bravado to guns and blood.

Between 1981 and 1999 federal expenditures on prohibition and supply reduction activities jumped more than tenfold. No other government activity had similar or even comparable increases. Yet, there is no basis, none at all, to support this policy. Charles F. Manski, Professor of Economics at Northwestern University, and chair of the committee that wrote the National Research Council Report said, "Neither the necessary data systems nor the research infrastructure to gauge the usefulness of drug-control enforcement policies currently exists. It is unconscionable for this country to continue to carry out a public policy of this magnitude and cost without any way of knowing whether, and to what extent, it is having the desired result. Our committee strongly recommends that a substantial, new, and robust research effort be undertaken to examine the various aspects of drug control, so that decision-making on these issues can be better supported by more factual and realistic evidence."

According to the committee report there isn't enough reliable data to know whether any program makes any difference nor even how drug markets operate or how users begin to use drugs or how they decide to increase use or what factors cause them to quit. The government hasn't the faintest idea whether incarceration acts as a deterrent and deliberately ignores some evidence that suggests drug use is increased by imprisonment. Recent non-governmental studies have shown that drug abusers who are subject to involuntary treatment have a significantly higher rate of recidivism than those who have no treatment at all! Moreover, there is no reliable data on overall consumption rates or available supply. Without this information, it is not even possible for the government to determine the economic vitality of illegal drug markets.

"Who would believe," the Nobel Laureate Milton Friedman says, "that a democratic government would pursue for eight decades a failed policy that produced tens of millions of victims and trillions of dollars of illicit profits for drug dealers; cost taxpayers hundreds of billions of dollars; increased crime and destroyed inner cities; fostered wide-spread corruption and violations of human rights - and all with no success in achieving the stated and unattainable objective of a drug-free America."

Without hard, well researched information, it is not even possible to articulate a new or improved policy. All that is left is the frequently expressed inanity that changing our drug policy would "send the wrong message to our children." In this darkest of comedies, the government, even as we speak, hasn't the slightest notion what message our children are presently receiving. Perhaps this is so because our national drug control budget spends 12% on youth drug use, 22% on treatment and 66% on law enforcement.

The federal government does know a few things, however. Since 1972, its own surveys show that there has been a rise in adolescent drug use. Since 1975, the federal government has been asking high school seniors how easy it is for them to obtain marijuana. The research shows that adolescents' access to marijuana is virtually unchanged since the War on Drugs was declared. In 1975, 87% of youths said it was "very easy" or "fairly easy" to obtain marijuana. Twenty-three years, millions of arrests and billions of dollars later, 89.6% of adolescents said it was "easily" obtained. Just what message is the present policy of prohibition and criminalization sending to our children? And what would be wrong with changing it?

I realize that anecdotal information is not too helpful, but a recent experience merits a brief comment. A friend of mine who is in his mid-sixties is undergoing chemotherapy and the treatment is making him very sick. When visited by his son, daughter-in-law and eleven year old grandson, he jokingly said he wished the state would get off its legislative butt and provide chemo patients with some pot. He said he didn't have the faintest idea where he could buy it even if he could get out of bed. The next day his grandson came by himself to visit and handed him three joints of marijuana. The boy said, "Don't worry, Grandpa. I don't use it myself, but if you need any more, just let me know." Are our children sending us the wrong message?

Perhaps we should send a message to our children about the causes of death in the United States. We would have to tell them that tobacco is legal and the leading substance cause of death at 430,700 per year; that alcohol is legal and 110,600 die from it each year; that adverse reactions to legal prescription drugs cause 32,000 fatalities a year; that 30,500 commit suicide; 18,000 are homicide victims; that deaths from all drugs, legal and illicit, amount to 17,000 and that 7,600 people die each year from taking anti-inflammatory drugs such as aspirin. Of course, we don't want to send them the wrong message that the total number of deaths caused by marijuana is ZERO.

Perhaps the message we should be sending our children is that the inmate population of the Federal Bureau of Prisons exceeds 150,000 - the highest number in history. When Richard Nixon left office in 1974, there were fewer than 24,000 federal prisoners. When Ronald Reagan left office in 1989 there were nearly 50,000 and the 100,000 mark was reached in 1997. Sixty percent of the total federal prison population is made up of drug offenders, most of whom are low-level or middle level offenders. Drug kingpins are seldom found in prison populations.

Most of these prisoners are minorities. Indeed, we should tell our children that more African-Americans were imprisoned during the Clinton administration than in all the rest of United States history, but that might be sending our children the wrong message; they might somehow get the idea that drug law enforcement is racist. In both state and federal penal systems, America imprisons 100,000 more persons for drug offenses than the entire European Union imprisons for all offenses. The European Union has 100 million more citizens than the United States. There are 2 million people behind bars in the United States.

It is probably not a good idea to tell our children the truth; that would clearly be sending them the wrong message. How, for example, could they deal with the fact that in 1914 when drugs were available on grocery store shelves and without prescription at the local pharmacy, 1.3% of the population was addicted. In 1979, just before the so-called "War on Drugs" crackdown, the addiction rate was still 1.3%. Today, while billions of dollars are spent to reduce drug use, the addiction rate is still 1.3%.

Local, state and federal governments now spend over $9 billion per year to imprison 458,000 drug offenders. It is the stated national drug policy to imprison all those who possess, sell or use illegal drugs. In order to fulfill this policy, the various local, state and federal governments would have to investigate, arrest, jail, convict and sentence the nine million Americans who smoked marijuana last month, the 1.2 million who ingested cocaine during the same period and the nearly six million who ingested it during the past year. Moreover, the government doesn't even know how many men, women and children took heroin and nonprescribed amphetamines during the same time. Included in these figures, to enforce this policy, government would have to imprison the 50% of high school graduating seniors who admit to having taken some controlled substance during the past three years.

What would be the cost of our current policy if it was succeeding rather than failing? Incarcerating all cocaine users would cost $74 billion, but only after constructing 3.5 million more prison beds at an initial cost of $175 billion. It would cost $365 billion to jail everyone who smoked marijuana last year - five times the total national, state and local spending for all police, courts and prisons combined. To contain this crowd behind walls, we would need a cadre of guards and other prison employees larger than all of our military forces combined.

More costly than money, however, is the price we now pay for this failed policy in terms of the decline in public safety, the breakdown of our criminal justice system, the erosion of our civil liberties and the pervasive public disrespect of the law. Good citizens, who are otherwise law-abiding, ignore or evade drug laws. With literally tens of millions of people using illegal drugs or related to those who do, an ever-increasing part of the population has become cynical about all laws and our legal system and political process in particular.

Much like in the days of that other Prohibition, from 1920 to 1933, when citizens, politicians, children and gangsters met on common ground in speakeasies and paddy wagons and when judges and prosecutors sought the flimsiest of reasons to dismiss cases against those who were franchised, ordinary people today transact purchases with criminals in the black market. When half of the graduating class of high school seniors have violated the drug laws, are any of them or their parents willing to regard themselves as criminals?

Each year since 1989, more people have been sent to prison for drug offenses than for violent crimes. At the same time, only one in five burglaries is reported and only one in 20 reported burglaries ends in arrest. Yet detectives continue to be reassigned from burglary details to investigation of street sales of drugs. The cost for this particular aspect of our national folly is absorbed in significantly increased insurance premiums.

On an even more practical level our current drug policy is doomed to failure. The most fundamental concept of economics is the law of demand, which says that consumers buy less when prices rise. Misunderstanding this basic rule, the drug warriors advance the current policy of interdiction. They claim consumption can be ended by cutting off supply, thereby causing a price increase resulting in little or no demand. In other words, interdiction will cause prices to rise to such a high level that demand will cease.

Well, ignorance isn't really bliss; it is the father of folly and the mother of disaster. The law of demand only applies to one product at a time. Those consumers who buy less of a product when the price rises do not stop buying; they purchase other products. A 1994 National Bureau of Economic Research study found that when the price of marijuana rises, young people drink more beer and that increased consumption directly correlates with an increase in traffic fatalities. A National Institute of Justice study reported a precipitous increase in the use of methamphetamine in Hawaii during 1985-86 following a marijuana crop destruction program.

Making marijuana more difficult to obtain also causes an increase in cocaine consumption and a reduction in the supply of cocaine leads to an increase in heroin consumption. As clearly demonstrated during that other Prohibition, when the supply of beer was reduced, the consumption of hard liquor increased.

Not only does interdiction of one substance increase availability and use of others, a 1992 United States House Judiciary Crime Subcommittee disclosed that interdiction of cocaine actually increased its production and consumption. The study was based on the government's massive efforts to destroy the Medellin Cartel. The result was an increase in cocaine transshipment points from 11 to 25 and an expansion of cocaine processing to as many as 13 more countries. Researchers have also found a statistically significant correlation between higher incarceration rates of drug offenders and greater, not less, drug use.

Using data supplied by the federal Office of National Drug Control Policy, the Kremlin of the Drug Czar, we learn that the price of heroin has dropped, not increased, while its production has risen greatly. The illegal market price of cocaine in 1981 was $275.12 per gram and by 1996 it had dropped to $94.52. No legal, unregulated commodity suffered a similar reduction in price since the yo-yo was replaced by the hoola hoop.

The market prices for illegal drugs follow the same laws of supply and demand that apply to all commodities. The drug war itself, our current national policy, creates an artificially high price and the resulting huge profit margins encourage more drug producers to enter the market. Greater production has created economies of scale with greater incentive for producers and sellers to increase distribution. Lower production costs allow drug cartels to earn the same high profits with lower retail prices. The cartels accommodate for interdiction efforts by over-producing their commodity to account for the relatively minor losses suffered from interdiction and seizure. Because a kilogram of raw opium sells for $90 in Pakistan, but is worth $290,000 in the United States, law enforcement seizures have little, if any, impact on operations or profitability.

As Anthony Lewis observed on April 28 of this year in a New York Times article, the entire interdiction effort is utterly futile. "The effort to stop cocaine exports from Peru," he writes, "has cut the flow from there substantially. But that reduction has been more than made up by a huge increase in coca cultivation and production in Colombia. As Plan Columbia, the military anti-drug program, gets underway there, production is reportedly beginning to shift to Ecuador." Lewis lists the costs to other nations of our current drug policies: the rise of drug gangs, the suffering of peasants from crop eradication, the corruption of governments and increased deaths by violence. "Yet," he notes, "the amount of cocaine and heroin entering the United States is as great as ever."

If our appraisal of American history is honest, we must recognize that our country has succeeded when it has placed faith and trust in the spirit of American enterprise and that it has failed when it has followed the puritanical path. Our highest purposes are achieved when we proceed with the consent of the governed. Our failures occur with force and deception.

American drug policy includes the use of military force in other countries and on our nation's borders. Plan Colombia calls for more than $3.5 billion to be spent on "agricultural" equipment such as Black Hawk helicopters and advisors. Sound familiar? Our current policy includes the threat and use of force on other nations, and the threat of severe economic and diplomatic sanctions even to long-standing allies. In furtherance of that policy, the dissemination of false and misleading data by the government has become commonplace, so, too, has the rejection of efforts to conduct research and evaluate the effectiveness of highly-vaunted programs. The same policy results in ignoring, deriding and distorting facts that would otherwise show more successful alternatives to the present practices of interdiction and criminal sanctions for consumption.

Police agencies still need to protect the public by holding those who cause accidents or commit crimes while under the influence of drugs and alcohol fully accountable for their acts, but we must get them out of the business of financing their operations through the seizure and forfeiture of private property. The costs of law enforcement should be funded from the public fisc by legislators so that we can determine how much the implementation of government policies is costing. In other and harsher words, we need to terminate the symbiotic business relationship that law enforcement has with the illegal drug industry. Each scratches the other's back.

Indeed, the two groups who would suffer most from an elimination of the black market in drugs would be, in nearly equal measure, organized crime and law enforcement. Those who would benefit the most would be the people, especially children, who have never before tried drugs because there would be no economic incentive to turn them into customers. Those who are already addicted or abusing drugs or who will no matter what law obtains can be treated rather than imprisoned at a cost of one-seventh the amount needed to imprison them.

One of the longest and most cherished traditions of this nation is that the military is subservient to the civilian government, and that military might shall never be engaged in domestic matters. It is the American version of the Rubicon. For as long as we have been free, we have disavowed the existence of a national police force. We have insisted that law enforcement is the business of local police agencies. Federal grants and financing of multi-level government task forces coupled with military assistance and the use of military intelligence in domestic matters seriously jeopardize local control of police action. The federal government is presently deeply involved in domestic drug law enforcement. This policy must change for no reason less important than the freedom of all individuals.

There is an understandable temptation for state officials to shape their policies and programs to conform to federal grant requirements. What the Constitution prohibits the federal government from doing as an exercise of delegated power it does indirectly in numerous areas of endeavor, including the drug war, by placing conditions on federal grants. In many instances state governments have abdicated lawful control in the grab for federal funds.

Alexis de Tocqueville called our states and communities the "laboratories of democracy," where experiments in self-government could take place and the success of one could be substituted for the failure of another. Our federally directed drug control policy has closed these laboratories. The consequence is that as a free people we continue to pursue but one path - the path of folly.

In order to deal successfully with drug abuse, this nation must abandon its failed policies and rhetoric of misinformation. We must permit the several states to resume their role as laboratories of democracy in which policies and programs suitable to their individual needs and conditions can be implemented. It is essential, not merely for the promulgation of a rational drug policy, but also for the restoration of a viable state of freedom.

I suggest that federal drug law should be severely cut back. The importing of illegal drugs should continue to be a federal crime and the regulation of manufacturing drugs for distribution in interstate commerce should likewise be a federal concern, but the several states should regulate sales and decide what activities are criminal, such as selling or inducing minors to take drugs and which drugs, if any, should be prohibited. In sum, the policy should be to end the black market, end the free-booting financing of law enforcement by forfeiture and treat those drug and alcohol abusers who want to be treated.

At the present time, our national drug policy, just as the policy in Measure For Measure is inconsistent with the nature of justice, abusive of the nature of authority and ignorant of the compelling force of forgiveness. Our drug laws, indeed, are more mocked than feared. It is perhaps best to close these comments with reference to the source of the title, Measure For Measure. The text in the Gospel According To Matthew reads, " With what measure ye mete, it shall be measured to you again."