essay in drug laws

The Wider Impact of Drug Legalization on the Criminal Justice System

by aseneviratne | Mar 16, 2021 | All , Criminal Justice Reform , Public Health

This paper will discuss the effect of legalizing possession of all drugs on the criminal justice system. This paper will begin with a brief history of the modern War on Drugs to establish why drug possession should not be a criminal matter. Discussion of the impact of legalization will primarily focus on reduction in caseload and the resulting benefits.

The modern War on Drugs began during the Nixon presidency with the passage of the Controlled Substances Act of 1970 (“CSA”), which established federal regulatory power over the manufacture, importation, possession, use, and distribution of certain substances. [1] The CSA was ostensibly a public health response to the growing heroin epidemic in the mid-1960s. [2] In 1973, Nixon created the Drug Enforcement Agency (“DEA”) to carry out enforcement of the CSA. [3]

The War on Drugs expanded into a system of mass incarceration under the Comprehensive Crime Control Act of 1984, which increased criminal penalties associated with cannabis possession and established mandatory minimum sentences. [4] From 1980 to 1997, “the number of [individuals incarcerated] for nonviolent drug law offenses [jumped] from 50,000 . . . to over 400,000.” [5] “By 1991, the United States had surpassed the former Soviet Union and South Africa as having the largest prison population in the world.” [6] The racial impact from the ‘Tough on Crime’ approach reared its ugly head as “the sentences of black inmates were 41% longer than that of whites.” [7]

Most critically, the War on Drugs has been ineffective in deterring drug use. [8] In 2000, law enforcement seized over 4.4 million tablets of ecstasy, an increase from 350,000 tablets just two years prior. [9] From 2010 to 2015, the lifetime prevalence of 8th graders who have used illicit drugs consistently hovered around 20%. [10] Over that same period, the number of drug-induced deaths increased from 40,393 to 55,403. [11]

In light of the racial bias stemming from the War on Drugs as well as its failure to achieve its supposed intended purpose, drug possession is a worthy candidate for exploration into forms of treatment outside of the criminal realm. [12]

Legalization v. Decriminalization

For the purposes of this paper, assume that legalization means that the possession, sale, and manufacturing of all drugs would be regulated similarly to alcohol or cigarettes. At the outset, it is important to note why legalization is preferable to decriminalization. Decriminalization of drug possession simply means that possession is not a criminal offense. [13] In 2001, Portugal decriminalized all drugs, and the public health benefits have been palpable. [14] Under a system of decriminalization, however, the manufacturing and sale of drugs is still criminal. [15] As a result, the drug market is still propped up and supplied by drug cartels, just as it is in a system of prohibition. [16] Legalization goes further than decriminalization by legalizing drug production. [17] Allowing companies to manufacture drugs removes the viability of the black market drug trade, such as in Mexico where one cartel alone “had annual earnings calculated to be as high as $3 billion.” [18] In 2018, the DEA spent over $445 million on international enforcement to decrease the impact of these cartels in the United States. [19] Legalization treats the cause of the disease, and the consequent reduction in symptoms would decrease the need for these yearly international enforcement expenditures.

Court Decluttering

In 2017, there were 1,632,921 drug related violations in the U.S., of which 85.4% were for possession; an average of 3,820 possession arrests per day. [20] Under a system of legalization, American courts would no longer be inundated with this entire class of offense. The benefits of legalization on the courts are multifaceted: for the drug possessor, who is no longer a victim of the fruitless War on Drugs; for the judge, who enjoys greater flexibility with a decluttered docket; and most importantly, for the public defender, who can take advantage of the much-needed decrease in workload to provide better counsel to clients. [21]

In 2016, Louisiana had an estimated annual workload of 147,220 total cases to be divided among its 363 public defenders. [22] This meant that “the Louisiana public defense system [could only] handle 21 percent of [its] workload in compliance with [state] guidelines.” [23]

“Unsurprisingly, excessive workloads diminish the quality of legal representation.” [24] With such an enormous caseload, public defenders do not have the time available to conduct basic defense tasks necessary for a trial, creating an incentive for guilty pleas. [25] Guilty pleas based on time constraint rather than merit render “an ethical and constitutional plea bargain . . . impossible.” [26]

Given the sheer number of drug arrests, legalization would likely drastically reduce the public defense system’s case load. [27] With this caseload reduction, public defenders would be able to work towards closing the gap between the actual and necessary amount of time devoted to each client. [28] With more time to evaluate each case, public defenders can more effectively assess the appropriateness of a plea deal on the merits, rather than time constraints. [29] The increased legitimacy and efficiency of the public defense system resulting from legalization will likely lead to broader indirect benefits for all public defense clients, no matter what crime they are accused of. [30 ]

An argument against legalization posits that these reductions in public defense caseload would be offset by an increase in crime, such as petty crime and driving under the influence, due to legalization. [31] This line of reasoning rests on the assumption that if there are no criminal penalties for drug possession or use, then the number of drug users will increase. [32] With more people using drugs, more people will become addicts, who are more prone to committing crimes. [33]

The assumption that the absence of criminal sanctions entails more people using drugs is unsound, as under Portugal’s system of decriminalization, “in almost every category of drug, and for drug usage overall, the lifetime prevalence rates . . . were higher” prior to decriminalization. [34] Cocaine usage in Portugal was significantly lower than usage in the United States, which was head and shoulders above the rest of the world. [35] The heroin usage rate in Portugal from 1999 to 2005 actually decreased from 2.5% to 1.8% among those in the 16-18 age group. [36] Decreased drug use does not necessarily follow from from punitive state response, just as increased drug use does not necessarily follow from rehabilitative state response. [37] If the pool of drug users remains consistent after legalization, then pool of criminal drug users would likely remain consistent as well.

Still, even assuming that the number of drug addicts would increase post-legalization, leading to an increase in the number of petty crime and driving under the influence (“DUI”) cases, these cases differ quantitatively and qualitatively from possession and crimes currently associated with the black market for drugs.

Quantitatively, the increased caseload for petty crime and driving under the influence would still be significantly less the number of possession charges the system currently deals with. [38] Further, under the current system of prohibition, courts and society at large must deal with violent crimes associated with the black market for narcotics: in 2016, 11.2% of all federal prisoners held in state correctional facilities were incarcerated for drug trafficking and drug offenses other than possession. [39] Under a system of legalization, the profitability of the black market is greatly reduced, which would likely result in these arguably more serious crimes becoming less prevalent and further decreasing the caseload related to drugs despite a potential increase in petty crime and driving under the influence cases. [40]

Qualitatively, DUIs directly present significant and real risks of harm to other members of society in a way that drug possession does not. “In 2016, 10,497 people died in alcohol-impaired driving crashes, accounting for 28% of all traffic-related deaths in the United States.” [41] Given the increased culpability and blameworthiness of these crimes, it is not a waste of the public defense system resources to criminalize DUI and bear the associated costs of doing so; rather, these are precisely the crimes which fall under the purview of the criminal justice system. [42]

In conclusion, the War on Drugs has disproportionately impacted minorities [43] and has not effectively reduced drug consumption and usage. [44] In light of this, the United States should take steps to legalize drug possession and emulate the success of other nations who have treated drug use as public health matter, instead a criminal one. [45] Further, the benefits of legalization extend beyond drug users. [46] Globally, legalization helps to curtail the influence of cartels. [47] Domestically, legalization frees up the criminal justice system, permitting more efficient and legitimate legal representation for all individuals. [48]

[1] See Controlled Substances Act of 1970, 21 U.S.C. § 811.

[2] See Pub. Broadcasting Serv., Interview Dr. Robert DuPont , FRONTLINE: DRUG WARS, https://www.pbs.org/wgbh/pages/frontline/shows/drugs/interviews/dupont.html (last visited Mar. 20, 2020).

[3] See History , DRUG ENF’T AGENCY, dea.gov/history (last visited Jun. 29, 2020).

[4] See Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, 98 Stat. 1976.

[5] A Brief History of the Drug War , DRUG POL’Y ALL., https://www.drugpolicy.org/issues/brief-history-drug-war, (last visited Mar. 23, 2020).

[6] Charles Ogletree, Getting Tough on Crime: Does It Work? 38 Boston B. J. 9, 27 (1994).

[8] See Ross C. Anderson, We Are All Casualties of Friendly Fire in the War on Drugs , 13 Utah B.J. 10, 11 (2000).

[9] Id. at 11.

[10] See OFFICE OF NAT’L DRUG CONTROL POL’Y, NATIONAL DRUG CONTROL STRATEGY: PERFORMANCE REPORTING SYSTEM REPORT 27 (2016); What is Prevalence? NAT’L INST. MENTAL HEALTH (Nov. 2017), https://www.nimh.nih.gov/health/statistics/what-is-prevalence.shtml (explaining that “[l]ifetime prevalence is the proportion of a population who, at some point in life has ever had the characteristic.”).

[11] Id. at 12.

[12] See Anderson, supra note 8, at 11.

[13] See GLENN GREENWALD, DRUG DECRIMINALIZATION IN PORTUGAL: LESSONS FOR CREATING FAIR AND SUCCESSFUL DRUG POLICIES 2 (2009), https://www.cato.org/publications/white-paper/drug-decriminalization-portugal-lessons-creating-fair-successful-drug-policies.

[14] See id. at 14-15 (explaining that since decriminalization, Portugal has experienced a slight decline in drug use, a significant decline in drug related pathologies such as HIV, and a substantial increase in use of treatment programs).

[15] See i d. at 2.

[16] See German Lopez, What People Get Wrong About Prohibition , VOX (Oct. 19, 2015), https://www.vox.com/2015/10/19/9566935/prohibition-myths-misconceptions-facts.

[17] See GREENWALD, supra note 13, at 2.

[18] JUNE S. BEITTEL, CONG. RSCH. SERV., R41576, MEXICO: ORGANIZED CRIME AND DRUG TRAFFICKING ORGANIZATIONS 19 (2019).

[19] DRUG ENF’T ADMIN., FY 2019 BUDGET REQUEST, 4 (2018).

[20] See 2017 Crime in the United States: Persons Arrested , FED. BUREAU INVESTIGATION: UNIFORM CRIME REPORTING, https://ucr.fbi.gov/crime-in-the-u.s/2017/crime-in-the-u.s.-2017/topic-pages/persons-arrested (last visited Aug. 15, 2020).

[21] See Lisa C. Wood et al., Meet-and-Plead: The Inevitable Consequence of Crushing Defender Workloads , 42 LITIG. 20, 23 (2016).

[22] See A.B.A. & POSTLETHWAITE & NETTERVILLE, THE LOUISIANA PROJECT: A STUDY OF THE LOUISIANA DEFENDER SYSTEM AND ATTORNEY WORKLOAD STANDARDS 2 (2017).

[24] Wood et al., supra note 21, at 23.

[25] See id.

[27] See id. at 26.

[28] See id .

[29] See id .

[30] See id.

[31] See Paul Stares, Drug Legalization?: Time for a Real Debate , BROOKINGS INST. (Mar. 1, 1996), https://www.brookings.edu/articles/drug-legalization-time-for-a-real-debate/.

[32] See id.

[33] See id.

[34] GREENWALD, supra note 13, at 14-15 (emphasis added).

[35] See id. at 22-24.

[36] Id. at 14.

[37] See Stares, supra note 31 .

[38] See 2016 Crime in the United States: Table 18 , FED. BUREAU INVESTIGATION: UNIFORM CRIME REPORTING, https://ucr.fbi.gov/crime-in-the-u.s/2016/crime-in-the-u.s.-2016/topic-pages/tables/table-18 (last visited Aug. 15 2020) (illustrating that arrests for drug abuse violations are nearly eight times as high as arrests for burglary – a petty crime that is often related to drugs).

[39 ] JENNIFER BRONSON & E. ANN CARSON, BUREAU OF JUSTICE STATISTICS, NCJ 252156 , PRISONERS IN 2017 21 (2019).

[40] See Lopez, supra note 16 .

[41] Impaired Driving: Get the Facts, CENTERS FOR DISEASE CONTROL AND PREVENTION ( Aug. 24, 2020, 12:00 AM), https://www.cdc.gov/motorvehiclesafety/impaired_driving/impaired-drv_factsheet.html.

[42] See Janine Geske, Achieving the Goals of Criminal Justice: A Role for Restorative Justice , 30 Quinnipiac L. Rev. 527, 530-31 (2012).

[43] See Anderson, supra note 8, at 11 .

[44] See id.

[45] See GREENWALD, supra note 13, at 14-15.

[46] See Stares, supra note 31.

[47] See i d.

[48] See Wood et al., supra note 21, at 23, 26; s ee also Lopez, supra note 16.

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Race, Mass Incarceration, and the Disastrous War on Drugs

Unravelling decades of racially biased anti-drug policies is a monumental project.

• Nkechi Taifa
• Cutting Jail & Prison Populations
• Social & Economic Harm

This essay is part of the  Brennan Center’s series  examining  the punitive excess that has come to define America’s criminal legal system .

I have a long view of the criminal punishment system, having been in the trenches for nearly 40 years as an activist, lobbyist, legislative counsel, legal scholar, and policy analyst. So I was hardly surprised when Richard Nixon’s domestic policy advisor  John Ehrlichman  revealed in a 1994 interview that the “War on Drugs” had begun as a racially motivated crusade to criminalize Blacks and the anti-war left.

“We knew we couldn’t make it illegal to be either against the war or blacks, but by getting the public to associate the hippies with marijuana and blacks with heroin and then criminalizing them both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night in the evening news. Did we know we were lying about the drugs? Of course we did,” Ehrlichman said.

Before the War on Drugs, explicit discrimination — and for decades, overtly racist lynching — were the primary weapons in the subjugation of Black people. Then mass incarceration, the gradual progeny of a number of congressional bills, made it so much easier. Most notably, the 1984  Comprehensive Crime Control and Safe Streets Act  eliminated parole in the federal system, resulting in an upsurge of  geriatric prisoners . Then the 1986  Anti-Drug Abuse Act  established mandatory minimum sentencing schemes, including the infamous 100-to-1 ratio between crack and powder cocaine sentences.  Its expansion  in 1988 added an overly broad definition of conspiracy to the mix. These laws flooded the federal system with people convicted of low-level and nonviolent drug offenses.

During the early 1990s, I walked the halls of Congress lobbying against various omnibus crime bills, which culminated in the granddaddy of them all — the  Violent Crime Control and Safe Streets Act  of 1994. This bill featured the largest expansion of the federal death penalty in modern times, the gutting of habeas corpus, the evisceration of the exclusionary rule, the trying of 13-year-olds as adults, and 100,000 new cops on the streets, which led to an explosion in racial profiling. It also included the elimination of Pell educational grants for prisoners, the implementation of the federal three strikes law, and monetary incentives to states to enact “truth-in-sentencing” laws, which subsidized an astronomical rise in prison construction across the country, lengthened the amount of time to be served, and solidified a mentality of meanness.

The prevailing narrative at the time was “tough on crime.” It was a narrative that caused then-candidate Bill Clinton to leave his presidential campaign trail to oversee the execution of a mentally challenged man in Arkansas. It was the same narrative that brought about the crack–powder cocaine disparity, supported the transfer of youth to adult courts, and popularized the myth of the Black child as “superpredator.”

With the proliferation of mandatory minimum sentences during the height of the War on Drugs, unnecessarily lengthy prison terms were robotically meted out with callous abandon. Shockingly severe sentences for drug offenses — 10, 20, 30 years, even life imprisonment — hardly raised an eyebrow. Traumatizing sentences that snatched parents from children and loved ones, destabilizing families and communities, became commonplace.

Such punishments should offend our society’s standard of decency. Why haven’t they? Most flabbergasting to me was the Supreme Court’s 1991  decision  asserting that mandatory life imprisonment for a first-time drug offense was not cruel and unusual punishment. The rationale was ludicrous. The Court actually held that although the punishment was cruel, it was not unusual.

The twisted logic reminded me of another Supreme Court  case  that had been decided a few years earlier. There, the Court allowed the execution of a man — despite overwhelming evidence of racial bias — because of fear that the floodgates would be opened to racial challenges in other aspects of criminal sentencing as well. Essentially, this ruling found that lengthy sentences in such cases are cruel, but they are usual. In other words, systemic racism exists, but because that is the norm, it is therefore constitutional.

In many instances, laws today are facially neutral and do not appear to discriminate intentionally. But the disparate treatment often built into our legal institutions allows discrimination to occur without the need of overt action. These laws look fair but nevertheless have a racially discriminatory impact that is structurally embedded in many police departments, prosecutor’s offices, and courtrooms.

Since the late 1980s, a combination of federal law enforcement policies, prosecutorial practices, and legislation resulted in Black people being disproportionately arrested, convicted, and imprisoned for possession and distribution of crack cocaine. Five grams of crack cocaine — the weight of a couple packs of sugar — was, for sentencing purposes, deemed the equivalent of 500 grams of powder cocaine; both resulted in the same five-year sentence. Although household surveys from the National Institute for Drug Abuse have revealed larger numbers of documented white crack cocaine users, the overwhelming number of arrests nonetheless came from Black communities who were disproportionately impacted by the facially neutral, yet illogically harsh, crack penalties.

For the system to be just, the public must be confident that at every stage of the process — from the initial investigation of crimes by police to the prosecution and punishment of those crimes — people in like circumstances are treated the same. Today, however, as yesterday, the criminal legal system strays far from that ideal, causing African Americans to often question, is it justice or “just-us?”

Fortunately, the tough-on-crime chorus that arose from the War on Drugs is disappearing and a new narrative is developing. I sensed the beginning of this with the 2008  Second Chance Reentry  bill and 2010  Fair Sentencing Act , which reduced the disparity between crack and powder cocaine. I smiled when the 2012 Supreme Court ruling in  Miller v. Alabama  came out, which held that mandatory life sentences without parole for children violated the Eighth Amendment’s prohibition against cruel and unusual punishment. In 2013, I was delighted when Attorney General Eric Holder announced his  Smart on Crime  policies, focusing federal prosecutions on large-scale drug traffickers rather than bit players. The following year, I applauded President Obama’s executive  clemency initiative  to provide relief for many people serving inordinately lengthy mandatory-minimum sentences. Despite its failure to become law, I celebrated the  Sentencing Reform and Corrections Act  of 2015, a carefully negotiated bipartisan bill passed out of the Senate Judiciary Committee in 2015; a few years later some of its provisions were incorporated as part of the 2018  First Step Act . All of these reforms would have been unthinkable when I first embarked on criminal legal system reform.

But all of this is not enough. We have experienced nearly five decades of destructive mass incarceration. There must be an end to the racist policies and severe sentences the War on Drugs brought us. We must not be content with piecemeal reform and baby-step progress.

Indeed, rather than steps, it is time for leaps and bounds. End all mandatory minimum sentences and invest in a health-centered approach to substance use disorders. Demand a second-look process with the presumption of release for those serving life-without-parole drug sentences. Make sentences retroactive where laws have changed. Support categorical clemencies to rectify past injustices.

It is time for bold action. We must not be satisfied with the norm, but work toward institutionalizing the demand for a standard of decency that values transformative change.

Nkechi Taifa is president of The Taifa Group LLC, convener of the Justice Roundtable, and author of the memoir,  Black Power, Black Lawyer: My Audacious Quest for Justice.

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The War On Drugs: 50 Years Later

After 50 years of the war on drugs, 'what good is it doing for us'.

During the War on Drugs, the Brownsville neighborhood in New York City saw some of the highest rates of incarceration in the U.S., as Black and Hispanic men were sent to prison for lengthy prison sentences, often for low-level, nonviolent drug crimes. Spencer Platt/Getty Images hide caption

During the War on Drugs, the Brownsville neighborhood in New York City saw some of the highest rates of incarceration in the U.S., as Black and Hispanic men were sent to prison for lengthy prison sentences, often for low-level, nonviolent drug crimes.

When Aaron Hinton walked through the housing project in Brownsville on a recent summer afternoon, he voiced love and pride for this tightknit, but troubled working-class neighborhood in New York City where he grew up.

He pointed to a community garden, the lush plots of vegetables and flowers tended by volunteers, and to the library where he has led after-school programs for kids.

But he also expressed deep rage and sorrow over the scars left by the nation's 50-year-long War on Drugs. "What good is it doing for us?" Hinton asked.

Revisiting Two Cities At The Front Line Of The War On Drugs

Critics Say Chauvin Defense 'Weaponized' Stigma For Black Americans With Addiction

As the United States' harsh approach to drug use and addiction hits the half-century milestone, this question is being asked by a growing number of lawmakers, public health experts and community leaders.

In many parts of the U.S., some of the most severe policies implemented during the drug war are being scaled back or scrapped altogether.

Hinton, a 37-year-old community organizer and activist, said the reckoning is long overdue. He described watching Black men like himself get caught up in drugs year after year and swept into the nation's burgeoning prison system.

"They're spending so much money on these prisons to keep kids locked up," Hinton said, shaking his head. "They don't even spend a fraction of that money sending them to college or some kind of school."

Aaron Hinton, a 37-year-old veteran activist and community organizer, said it's clear Brownsville needed help coping with the cocaine, heroin and other drug-related crime that took root here in the 1970s and 1980s. His own family was devastated by addiction. Brian Mann hide caption

Aaron Hinton, a 37-year-old veteran activist and community organizer, said it's clear Brownsville needed help coping with the cocaine, heroin and other drug-related crime that took root here in the 1970s and 1980s. His own family was devastated by addiction.

Hinton has lived his whole life under the drug war. He said Brownsville needed help coping with cocaine, heroin and drug-related crime that took root here in the 1970s and 1980s.

His own family was scarred by addiction.

"I've known my mom to be a drug user my whole entire life," Hinton said. "She chose to run the streets and left me with my great-grandmother."

Four years ago, his mom overdosed and died after taking prescription painkillers, part of the opioid epidemic that has killed hundreds of thousands of Americans.

Hinton said her death sealed his belief that tough drug war policies and aggressive police tactics would never make his family or his community safer.

The nation pivots (slowly) as evidence mounts against the drug war

During months of interviews for this project, NPR found a growing consensus across the political spectrum — including among some in law enforcement — that the drug war simply didn't work.

"We have been involved in the failed War on Drugs for so very long," said retired Maj. Neill Franklin, a veteran with the Baltimore City Police and the Maryland State Police who led drug task forces for years.

He now believes the response to drugs should be handled by doctors and therapists, not cops and prison guards. "It does not belong in our wheelhouse," Franklin said during a press conference this week.

Aaron Hinton has lived his whole life under the drug war. He has watched many Black men like himself get caught up in drugs year after year, swept into the nation's criminal justice system. Brian Mann/NPR hide caption

Aaron Hinton has lived his whole life under the drug war. He has watched many Black men like himself get caught up in drugs year after year, swept into the nation's criminal justice system.

Some prosecutors have also condemned the drug war model, describing it as ineffective and racially biased.

"Over the last 50 years, we've unfortunately seen the 'War on Drugs' be used as an excuse to declare war on people of color, on poor Americans and so many other marginalized groups," said New York Attorney General Letitia James in a statement sent to NPR.

On Tuesday, two House Democrats introduced legislation that would decriminalize all drugs in the U.S., shifting the national response to a public health model. The measure appears to have zero chance of passage.

But in much of the country, disillusionment with the drug war has already led to repeal of some of the most punitive policies, including mandatory lengthy prison sentences for nonviolent drug users.

In recent years, voters and politicians in 17 states — including red-leaning Alaska and Montana — and the District of Columbia have backed the legalization of recreational marijuana , the most popular illicit drug, a trend that once seemed impossible.

Last November, Oregon became the first state to decriminalize small quantities of all drugs , including heroin and methamphetamines.

Many critics say the course correction is too modest and too slow.

"The war on drugs was an absolute miscalculation of human behavior," said Kassandra Frederique, who heads the Drug Policy Alliance, a national group that advocates for total drug decriminalization.

She said the criminal justice model failed to address the underlying need for jobs, health care and safe housing that spur addiction.

Indeed, much of the drug war's architecture remains intact. Federal spending on drugs — much of it devoted to interdiction — is expected to top $37 billion this year.

The Coronavirus Crisis

Drug overdose deaths spiked to 88,000 during the pandemic, white house says.

The U.S. still incarcerates more people than any other nation, with nearly half of the inmates in federal prison held on drug charges .

But the nation has seen a significant decline in state and federal inmate populations, down by a quarter from the peak of 1.6 million in 2009 to roughly 1.2 million last year .

There has also been substantial growth in public funding for health care and treatment for people who use drugs, due in large part to passage of the Affordable Care Act .

"The best outcomes come when you treat the substance use disorder [as a medical condition] as opposed to criminalizing that person and putting them in jail or prison," said Dr. Nora Volkow, who has been head of the National Institute of Drug Abuse since 2003.

Volkow said data shows clearly that the decision half a century ago to punish Americans who struggle with addiction was "devastating ... not just to them but actually to their families."

From a bipartisan War on Drugs to Black Lives Matter

Wounds left by the drug war go far beyond the roughly 20.3 million people who have a substance use disorder .

The campaign — which by some estimates cost more than $1 trillion — also exacerbated racial divisions and infringed on civil liberties in ways that transformed American society.

Frederique, with the Drug Policy Alliance, said the Black Lives Matter movement was inspired in part by cases that revealed a dangerous attitude toward drugs among police.

In Derek Chauvin's murder trial, the former officer's defense claimed aggressive police tactics were justified because of small amounts of fentanyl in George Floyd's body. Critics described the argument as an attempt to "weaponize" Floyd's substance use disorder and jurors found Chauvin guilty.

Breonna Taylor, meanwhile, was shot and killed by police in her home during a drug raid . She wasn't a suspect in the case.

"We need to end the drug war not just for our loved ones that are struggling with addiction, but we need to remove the excuse that that is why law enforcement gets to invade our space ... or kill us," Frederique said.

The United States has waged aggressive campaigns against substance use before, most notably during alcohol Prohibition in the 1920s and 1930s.

The modern drug war began with a symbolic address to the nation by President Richard Nixon on June 17, 1971.

Speaking from the White House, Nixon declared the federal government would now treat drug addiction as "public enemy No. 1," suggesting substance use might be vanquished once and for all.

"In order to fight and defeat this enemy," Nixon said, "it is necessary to wage a new all-out offensive."

President Richard Nixon's speech on June 17, 1971, marked the symbolic start of the modern drug war. In the decades that followed Democrats and Republicans embraced ever-tougher laws penalizing people with addiction.

Studies show from the outset drug laws were implemented with a stark racial bias , leading to unprecedented levels of mass incarceration for Black and brown men .

As recently as 2018, Black men were nearly six times more likely than white men to be locked up in state or federal correctional facilities, according to the U.S. Justice Department .

Researchers have long concluded the pattern has far-reaching impacts on Black families, making it harder to find employment and housing, while also preventing many people of color with drug records from voting .

In a 1994 interview published in Harper's Magazine , Nixon adviser John Ehrlichman suggested racial animus was among the motives shaping the drug war.

"We knew we couldn't make it illegal to be either against the [Vietnam] War or Black," Ehrlichman said. "But by getting the public to associate the hippies with marijuana and Blacks with heroin, and then criminalizing both heavily, we could disrupt those communities."

Despite those concerns, Democrats and Republicans partnered on the drug war decade after decade, approving ever-more-severe laws, creating new state and federal bureaucracies to interdict drugs, and funding new armies of police and federal agents.

At times, the fight on America's streets resembled an actual war, especially in poor communities and communities of color.

Police units carried out drug raids with military-style hardware that included body armor, assault weapons and tanks equipped with battering rams.

President Richard Nixon explaining aspects of the special message sent to the Congress on June 17, 1971, asking for an extra $155 million for a new program to combat the use of drugs. He labeled drug abuse "a national emergency." Harvey Georges/AP hide caption

President Richard Nixon explaining aspects of the special message sent to the Congress on June 17, 1971, asking for an extra $155 million for a new program to combat the use of drugs. He labeled drug abuse "a national emergency."

"What we need is another D-Day, not another Vietnam, not another limited war fought on the cheap," declared then-Sen. Joe Biden, D-Del., in 1989.

Biden, who chaired the influential Senate Judiciary Committee, later co-authored the controversial 1994 crime bill that helped fund a vast new complex of state and federal prisons, which remains the largest in the world.

On the campaign trail in 2020, Biden stopped short of repudiating his past drug policy ideas but said he now believes no American should be incarcerated for addiction. He also endorsed national decriminalization of marijuana.

While few policy experts believe the drug war will come to a conclusive end any time soon, the end of bipartisan backing for punitive drug laws is a significant development.

More drugs bring more deaths and more doubts

Adding to pressure for change is the fact that despite a half-century of interdiction, America's streets are flooded with more potent and dangerous drugs than ever before — primarily methamphetamines and the synthetic opioid fentanyl.

"Back in the day, when we would see 5, 10 kilograms of meth, that would make you a hero if you made a seizure like that," said Matthew Donahue, the head of operations at the Drug Enforcement Administration.

As U.S. Corporations Face Reckoning Over Prescription Opioids, CEOs Keep Cashing In

"Now it's common for us to see 100-, 200- and 300-kilogram seizures of meth," he added. "It doesn't make a dent to the price."

Efforts to disrupt illegal drug supplies suffered yet another major blow last year after Mexican officials repudiated drug war tactics and began blocking most interdiction efforts south of the U.S.-Mexico border.

"It's a national health threat, it's a national safety threat," Donahue told NPR.

Last year, drug overdoses hit a devastating new record of 90,000 deaths , according to preliminary data from the Centers for Disease Control and Prevention.

The drug war failed to stop the opioid epidemic

Critics say the effectiveness of the drug war model has been called into question for another reason: the nation's prescription opioid epidemic.

Beginning in the late 1990s, some of the nation's largest drug companies and pharmacy chains invested heavily in the opioid business.

State and federal regulators and law enforcement failed to intervene as communities were flooded with legally manufactured painkillers, including Oxycontin.

"They were utterly failing to take into account diversion," said West Virginia Republican Attorney General Patrick Morrisey, who sued the DEA for not curbing opioid production quotas sooner.

"It's as close to a criminal act as you can find," Morrisey said.

Courtney Hessler, a reporter for The (Huntington) Herald-Dispatch in West Virgina, has covered the opioid epidemic. As a child she wound up in foster care after her mother became addicted to opioids. "You know there's thousands of children that grew up the way that I did. These people want answers," Hessler told NPR. Brian Mann/NPR hide caption

Courtney Hessler, a reporter for The (Huntington) Herald-Dispatch in West Virgina, has covered the opioid epidemic. As a child she wound up in foster care after her mother became addicted to opioids. "You know there's thousands of children that grew up the way that I did. These people want answers," Hessler told NPR.

One of the epicenters of the prescription opioid epidemic was Huntington, a small city in West Virginia along the Ohio River hit hard by the loss of factory and coal jobs.

"It was pretty bad. Eighty-one million opioid pills over an eight-year period came into this area," said Courtney Hessler, a reporter with The (Huntington) Herald-Dispatch.

Public health officials say 1 in 10 residents in the area still battle addiction. Hessler herself wound up in foster care after her mother struggled with opioids.

In recent months, she has reported on a landmark opioid trial that will test who — if anyone — will be held accountable for drug policies that failed to keep families and communities safe.

"I think it's important. You know there's thousands of children that grew up the way that I did," Hessler said. "These people want answers."

A needle disposal box at the Cabell-Huntington Health Department sits in the front parking lot in 2019 in Huntington, W.Va. The city is experiencing a surge in HIV cases related to intravenous drug use following a recent opioid crisis in the state. Ricky Carioti/The Washington Post via Getty Images hide caption

A needle disposal box at the Cabell-Huntington Health Department sits in the front parking lot in 2019 in Huntington, W.Va. The city is experiencing a surge in HIV cases related to intravenous drug use following a recent opioid crisis in the state.

During dozens of interviews, community leaders told NPR that places like Huntington, W.Va., and Brownsville, N.Y., will recover from the drug war and rebuild.

They predicted many parts of the country will accelerate the shift toward a public health model for addiction: treating drug users more often like patients with a chronic illness and less often as criminals.

But ending wars is hard and stigma surrounding drug use, heightened by a half-century of punitive policies, remains deeply entrenched. Aaron Hinton, the activist in Brownsville, said it may take decades to unwind the harm done to his neighborhood.

"It's one step forward, two steps back," Hinton said. "But I remain hopeful. Why? Because what else am I going to do?"

• opioid epidemic
• public health
• war on drugs
• drug policy

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Drug Legalization and Decriminalization Beliefs Among Substance-Using and Non-using Individuals

Associated data, objectives:.

There has been advocacy for legalization of abusable substances, but systematic data on societal beliefs regarding such legalization are limited. People who use substances may have unique beliefs about legalization, and this study assessed whether they would be in favor of drug legalization/decriminalization. It was hypothesized that those who use particular drugs (especially marijuana) would support its legalization/decriminalization, but that this would not be the case across all classes (especially opioids and stimulants).

A nationwide sample of 506 adults were surveyed online to assess demographic characteristics, substance misuse, and beliefs regarding drug legalization/decriminalization. Legalization/decriminalization beliefs for specific drugs were assessed on an 11-point scale (0=strongly disagree; 10=strongly agree).

For persons with opioid misuse (15.4%), when asked about their agreement with: “heroin should be legalized,” the mean score was 4.6 (SEE= 0.4; neutral). For persons with stimulant misuse (12.1%), when asked about their agreement with: “cocaine should be legalized,” the score was 4.2(0.5). However, for persons with marijuana misuse (34.0%), when asked about their agreement with: “medical marijuana should be legalized” the score was 8.2 (0.3; indicating agreement), and for “recreational marijuana” the score was also 8.2(0.3).

Conclusions:

These results suggest that persons who used marijuana strongly support the legalization of both recreational and medical marijuana, whereas persons who primarily have opioid or stimulant misuse have less strongly held beliefs about legalization of substances within those respective categories. By including those who misuse drugs, these data assist in framing discussions of drug legalization and have the potential to inform drug policy considerations.

1.0. Introduction

Substance use is a major concern in both the United States (US) and abroad, with important consequences related not only to morbidity and mortality, but legal and economic concerns as well. In 2010, the Global Burden of Diseases, Injuries, and Risk Factors Study found that mental illness was the leading cause of years living with disability worldwide, with illicit substance use disorders (SUDs) and alcohol use disorders (AUDs) accounting for 11% and 10% of disability-adjusted life years within that category, respectively ( Whiteford et al., 2013 ). The 2016 National Survey on Drug Use and Health (NSDUH) estimates that 7.8% of adults in the US had a SUD during that year ( Center for Behavioral Health Statistics and Quality, 2017 ).

While much drug use remains illegal, there are growing efforts to legalize and/or decriminalize certain drug classes (such as marijuana and heroin), despite international drug treaties prohibiting the non-medical use of marijuana, cocaine, amphetamines, and heroin ( Hall, 2017 ). This is related, in part, to evidence that drugs such as marijuana or heroin, which had been previously categorized as having no medicinal value, may have potential medical benefit. These efforts are also premised upon the experiences of countries like Portugal, which decriminalized all illicit drugs in 2001 and reported subsequent decreases in drug-related societal problems, as well as support for legalizing drugs like marijuana for non-medical use in countries such as Canada and Uruguay ( Room, 2014 ; Goncalves et al., 2015 ; Cox, 2018 ). Several European countries and Canada have now endorsed the use of medicinal injectable and oral heroin (diacetylmorphine or diamorphine) as an effective medication for heroin use disorder among persons who are not otherwise responding to treatments ( Ayanga et al., 2016 ).

The US is beginning to demonstrate varied support for drug legalization and decriminalization. For instance, although not formally supported by the US federal government, eight states and the District of Columbia have legalized recreational marijuana, and twenty-nine states have legalized medicinal marijuana. However, systematic data on the opinions of Americans regarding the legalization/decriminalization of marijuana are lacking, and attitudes regarding the legalization/decriminalization of other substances are even sparser. Data show that the public’s opinions about marijuana seem to have changed over time ( Carliner et al., 2017 ), with 12% of the public supporting legalization in 1969 (based on survey data), compared with 61% per an online poll conducted in 2017 ( Geiger, 2018 ). Another recent online poll of registered US voters found that a modest majority (68%) was in support of legalization of marijuana for medical purposes, with 52% supporting its legalization for recreational purposes. However, this sample was vastly opposed to the legalization and decriminalization of other drugs (including cocaine, heroin, and methamphetamine), for both medical and recreational purposes ( Lopez, 2016 ).

Opinions about drug legalization/decriminalization can differ based on whether a person has a personal history of substance use and as a function of demographic and ideological characteristics (such a religious or political preference); these associations have only been evaluated in a few studies. The first such study was conducted in 2002 among 188 out-of-treatment persons who used substances, and persons who did not use substances, from low income, high drug-use sections of a US urban setting (Houston, TX), and reported that persons who used substances (marijuana, heroin, cocaine, or methamphetamine) were more likely to support the legalization of marijuana (68% in favor) than persons who did not use substances (33%), while each group showed little support for the legalization of heroin (12% vs. 8%) or cocaine (14% vs. 8%, respectively; Trevino and Richard, 2002 ). More recently, an online poll reported that Americans identifying as Democrats were more likely to be in favor of marijuana legalization (69%) than Republicans (43%). Also, white mainline Protestants were more in favor of marijuana legalization (64%) than white evangelical Protestants (38%) or Catholics (52%), while those who were not affiliated with any religion showed the highest support (78%; Geiger, 2018 ).

These polls have various limitations, and have not focused upon the attitudes and beliefs of people who use drugs. This population may have unique beliefs about legalization and/or decriminalization of a drug - either their drug of choice, or illicit drugs more broadly. The direct experience of using a drug might predispose a person to support more ready availability of that drug or, conversely, might make a person more cautious about decreasing barriers to its use. Survey data have demonstrated that opinions on drug legalization/decriminalization can differ based on the person’s belief system, such as varying as a function of political or religious affiliation. Persons who are generally more conservative may not be in favor of legalizing or decriminalizing substances. Surprisingly, there is little information on attitudes regarding legalization/decriminalization of drugs that systematically evaluates these domains. This study aimed to address this gap by surveying both persons who used substances and persons who did not use substances about their opinions regarding legalization and decriminalization of drugs, and to also evaluate whether differences in these attitudes were associated with different religious and political affiliations, or the lack thereof, as a secondary outcome. It was hypothesized that individuals who use marijuana would support the legalization and decriminalization of that drug, but that this would not be the case for heroin or cocaine among persons who used opioids or stimulants, respectively.

2.0. Methods

2.1. participants.

The sample was recruited online between July and November 2017. Participants (N=506) were registered as “workers” on the Amazon Mechanical Turk (AMT) platform ( Paolacci et al., 2010 ; Bartneck et al., 2015 ), which is an online forum where workers can anonymously complete tasks (such as surveys) assigned by “requestors” for a wage. Workers receive requestor approval ratings based on the quality of their work and completion time, which serves as an index of credibility and reliability ( Peer et al., 2014 ). To take the present survey, workers had to have an average requestor approval rating of 90% (as a quality control measure) and be located in the US. A short screening survey was given to ensure that participants were at least 18 years old, and it included other demographic questions, such as sex and race, to distract from the subject of the survey. The screening survey also limited the number of persons per category of primary substance used (including no use) using quotas, with a goal of obtaining at least 60 people in each primary substance category. A total of 2,672 persons attempted the screening survey, and 545 persons completed the primary survey. Those who were not eligible to continue on to the primary survey received $0.10 for completing the screening survey. After providing consent by agreeing to participate in the survey, those who answered questions in the primary survey received a bonus of two dollars, for a total of $2.10. The following quality control questions were included: 1) “Have you taken this survey before?” and 2) “Is there any reason for which we should not use your responses? For instance, you weren’t paying attention, you did not answer honestly, you had major computer issues, etc.” Those who answered “yes” to either of these questions were not included. The survey was hosted on Qualtrics (Provo, UT). The Johns Hopkins University Institutional Review Board approved the use of AMT for this survey research.

2.2. Measures

Demographic and drug use characteristics:.

Primary survey questions included demographic information such as education level, employment status, and income, as well as characteristics related to religious and political affiliations and whether the participant or someone close to them had ever experienced legal consequences related to substance use ( Table 1 ). Participants were asked whether they identified with a particular religion and to choose which major political party they identified with most among a list of the most common options; the options “none” and “other” were also provided. Additionally, participants were provided a list of substances and asked which they had used in the past year (including a write-in “other” option); for each substance they reported using, they were then asked to characterize use based on the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) SUD criteria ( American Psychiatric Association, 2013 ). Answering “yes” to two or more symptoms was operationalized as meeting criteria for a SUD for that substance. Participants who indicated using more than one substance in the past year were asked to identify which substance they would consider their primary substance; this was the basis upon which they were categorized for the remainder of the survey analyses.

Participant demographic data (N=506) 1

Decriminalization and Legalization Questions:

Participants were provided with definitions of legalization and decriminalization, and were then asked to rate their level of agreement with statements about legalization and decriminalization of heroin, cocaine, medical marijuana, and recreational marijuana on an 11-point scale with 0 representing “strongly disagree,” and 10 representing “strongly agree.” Some statements were worded in support of legalization/decriminalization of the substance while others were worded against legalization/decriminalization, to ensure participants were maintaining attention. Responses to the latter were reverse coded for consistency in reporting.

2.3. Statistical analyses

Participants were categorized into groups based on their self-reported primary substance used in the past year, with heroin and prescription painkiller misuse (taking pills other than how they were prescribed) collapsed into the “opioids” group; cocaine, methamphetamines, prescription stimulant misuse, or other stimulant use collapsed into the “stimulants” group; marijuana products, including synthetics, making up the “marijuana” group; any alcohol use included in the “alcohol” group; and no substance use in the “none” group. The degree to which demographic characteristics were associated with ratings for decriminalization/legalization was also assessed. Some demographic characteristics with multiple subgroups were dichotomized given limited numbers in some subgroups, including marital status (never married vs. ever married), race (minority vs. Caucasian), employment status (employed full time vs. other), education level (associates degree vs. less education), household income (less than or equal to $45,000 vs. more than $45,000) and political affiliation (Democrat vs. other).

Opinions on drug legalization and decriminalization as a function of primary substance used served as the primary analyses, while all others were secondary analyses. Categorical data, including demographics and SUD categorization were analyzed with chi-square analyses. Continuous data, such as age and drug legalization/decriminalization ratings, were analyzed with ANOVA or ANCOVA as appropriate. ANCOVAs controlled for those demographic variables that were significantly different among groups and showed a significant relationship with the outcome measure (see Table 2 ). Between-group planned comparisons of drug legalization/decriminalization ratings were compared between the primary substance categories, and then as a function of the group for whom the rating was deemed most relevant (e.g., ratings for heroin among persons who primarily used opioids, for cocaine among persons who primarily used stimulants, and for medical/recreational marijuana among persons who primarily used marijuana). Analyses used Type III sums of squares and planned comparisons among the primary substance use groups, and Pearson’s correlations to evaluate the relationship between legalization/decriminalization ratings. The primary outcome variables (legalization and decriminalization ratings) were not normally distributed. For the analyses in which we needed to control for certain demographic variables, ANCOVA were used as the main analyses, based on support for analyzing Likert data with parametric statistics ( Lubke and Muthén, 2004 ; De Winter and Dodou, 2010 ). The analyses by primary substance were significant when analyzed with Kruskal-Wallis tests, indicating that parametric and nonparametric statistics are approximately equivalent for these data. There were minor exceptions among the secondary analyses, but not the primary analyses. All analyses were performed in SPSS version 24.0. Statistical tests were considered significant at the p < 0.05 level.

Level of agreement with statements as a function of primary substance used 1

3.0. Results

3.1. participant characteristics.

A total of 506 participants completed the survey ( Table 1 ). Over the time of enrollment, the screening process targeted participants to ensure there were at least 60 subjects for each primary substance category. The final population had a mean age of 33.6 years old and was 53.0% male, 45.5% single (never married), and 25.9% racial minority (i.e., not Caucasian). Sixty-two percent of participants were employed full-time, 59.1% had at least an Associate’s degree, and 50.4% had a yearly household income of $45,000 or less. Among the total population, 36.4% of persons had experienced a legal consequence related to substance use among themselves or someone close to them. This was significantly more common among persons who used opioids (35.9%), stimulants (39.3%), marijuana (43.0%), or alcohol (36.4%), compared to those without substance use (19.5%). Participants were located in 43 states and the District of Columbia. For those persons who self-reported a primary substance used in the past year (N=429; 84.8%), a substantial proportion within each substance category reported symptoms meeting criteria for a SUD, including OUD (33/78; 42.3% of persons with opioid misuse), stimulant use disorder (25/61; 41.0%), marijuana use disorder (35/172; 20.3%), and AUD (39/118; 33.1%).

3.2. Preference for drug legalization and decriminalization of specific drug categories ( Table 2 )

3.2.1. heroin.

Overall, participants were not in favor of legalizing heroin (mean 3.8/10 for the total sample). However, persons whose primary substance was an opioid tended to have higher ratings (reflecting more positive attitudes) towards legalizing heroin (4.6/10) than persons who were classified as having primarily stimulant (3.3/10) or alcohol (3.4/10) use, as well as persons with no past-year substance use (3.4/10). The ratings of those with primary opioid misuse were similar to the ratings of persons with primary marijuana misuse with respect to attitudes towards heroin legalization (4.2/10). Ratings among all groups for decriminalization of heroin were even lower (total mean 2.9/10) indicating general lack of support. Persons who primarily misused opioids rated heroin decriminalization at 3.1 on average, which was not significantly different from other groups.

3.2.2. Cocaine

Similarly, the total sample of 506 persons was not in favor of cocaine legalization (3.8/10) or decriminalization (3.3/10). Persons with stimulant misuse rated cocaine legalization (4.2/10) and decriminalization (3.5/10) in a comparably low manner. Those who primarily used marijuana rated their agreement with cocaine decriminalization significantly higher (4.4/10), compared to those with primary alcohol use (2.8/10) and those with no use (2.8/10).

3.2.3. Marijuana

The total group of 506 participants was generally more in favor of the legalization and decriminalization of both medical (means for legalization = 7.2/10 and for decriminalization = 8.3/10) and recreational marijuana (legalization = 7.2/10 and decriminalization = 7.4/10), compared to legalization or decriminalization of heroin and cocaine. When examining the specific substance use groups, persons without any past-year substance use had lower ratings regarding legalization and decriminalization of marijuana, compared to other primary substance use groups. Conversely, persons with primary marijuana use had higher ratings for marijuana legalization (medical and recreational both = 8.2/10) and decriminalization (medical = 9.2/10 and recreational = 8.4/10).

3.3. Ratings as a function of primary substance used

This study hypothesized that respondents who identified a particular substance as their primary substance of use over the past year might be more inclined to see that substance legalized and/or decriminalized (particularly for marijuana). Results demonstrated that participants categorized as having primary opioid or stimulant misuse rated legalization and decriminalization of heroin and cocaine, respectively, at significantly lower values (indicating less endorsement) when compared to how those with primary marijuana use rated legalization and decriminalization of both medical and recreational marijuana (see corresponding cells of Table 2 ).

3.4. Religious characteristics

Whether persons identified with a particular religion or not proved to be an important variable among demographic characteristics, as well as legalization/decriminalization ratings (with religion serving as a covariate for those analyses). Thirty percent of participants identified with a religion. A significantly lower proportion of persons who used marijuana (21.5%) identified with a religion, compared to those who primarily used alcohol (37.3%), stimulants (36.1%), or no substances (37.7%). Similarly, those who identified with a religion were significantly less likely to report primary marijuana use (23.7%) than those who did not (38.6%). However, those persons who identified with a religion and used substances were significantly more likely to endorse 2 or more criteria on the DSM-5 SUD checklist (37.8%) than those who used substances but did not identify with a particular religion (27.8%).

There were statistically significant, though weak, negative correlations between identifying with a religion, and all drug legalization/decriminalization ratings (see Supplemental Table 1 ). Participants with a self-reported religious affiliation had significantly lower mean legalization/decriminalization ratings compared to those without any religious affiliation ( Figure 1a ).

Mean drug legalization/decriminalization ratings as a function of (a) religious or (b) political affiliation 1

1 Scales rated from 0–10, with 0 being strongly disagree and 10 being strongly agree. Unadjusted mean differences between groups were assessed with one-way ANOVA, with Tukey’s post hoc comparisons among political groups. Asterisks indicate p < 0.05 (b). Error bars indicate standard error of the mean (SEM). Asterisks indicate p < 0.05 when comparing persons who identify as republicans to those who identify as Democrats or have no political affiliation. Abbreviations: L- legalization, D- decriminalization, MMJ- medical marijuana, RMJ- recreational marijuana

3.5. Political characteristics

Political party affiliation (or the lack thereof) was also a significant factor among the demographic makeup of this population, their substance use, and opinions on drug legalization/decriminalization (making it a covariate for these analyses). The majority of persons surveyed (88.7%) were registered to vote. Fifty-one percent of participants identified with the Democratic Party, and the proportion of persons who used marijuana and identified as Democrats (60.5%) was significantly higher than those who primarily used alcohol (44.1%) or no substances (42.9%). Those who identified as Democrats were significantly more likely to use marijuana (40%) compared to non-Democrats (27.6%). Among those persons whose primary substance was alcohol, Democrats were significantly less likely to have an alcohol use disorder (12.7%) compared to non-Democrats (19.1%). Persons who identified as Republicans had significantly lower legalization/decriminalization ratings for each substance compared to those who identified as Democrats and those without any political affiliation (see Figure 1b ).

3.6. Ratings as a function of having a DSM-5 SUD vs. no SUD within primary drug categories

It is also possible that people with a more severe pattern of use (i.e., a SUD) would be more supportive of legalizing and/or decriminalizing the substance they use. However, there were no differences in ratings for legalization and decriminalization for any substance when comparing persons who use a substance but did not fulfill the DSM-5 SUD criteria, with those within that substance category who did meet the DSM-5 SUD criteria (data not shown).

3.7. Correlation of medical marijuana ratings to ratings of other substances

The use of medical marijuana is becoming more acceptable across the US, and it is possible that people who support the legalization/decriminalization of medical marijuana may also be open to supporting the legalization/decriminalization of other substances. We found a significant, though at times weak, positive correlation between how much participants agreed that medical marijuana should be decriminalized with ratings on heroin decriminalization (r=0.13, p=0.003), cocaine decriminalization (r= 0.15, p=0.001), recreational marijuana legalization (r=0.37, p=0.000) and recreational marijuana decriminalization (r=0.39, p=0.000). There was a significant, positive correlation between how participants rated medical marijuana legalization, and decriminalization of cocaine (r=0.09, p=0.038), legalization of recreational marijuana (r=0.43, p=0.000) and decriminalization of recreational marijuana (r=0.28, p=0.000).

4.0. Discussion

The current study provides new insights into opinions regarding the legalization and decriminalization of heroin, cocaine and marijuana. This study is unique in examining attitudes as a function of past year drug use, and hypothesized that persons who used substances would have differing drug legalization/decriminalization ratings for their self-reported primary substance, especially when comparing persons who primarily used marijuana to those who primarily used opioids and stimulants. Our hypothesis was supported by these findings, as persons who primarily used marijuana rated both the legalization and decriminalization of this drug favorably, but persons who primarily used opioids and simulants rated their support for both the legalization and decriminalization of heroin and cocaine relatively low, respectively. We found that overall most respondents were in favor of the legalization and decriminalization of marijuana (both medical and recreational), but not heroin and cocaine. These findings are consistent with the limited data that is currently known about opinions on marijuana legalization and decriminalization ( Lopez, 2016 ; Carliner et al., 2017 ; Geiger, 2018 ) as well as, heroin and cocaine ( Trevino and Richard, 2002 ; Geiger, 2018 ), though this is the first hypothesis-driven study of its kind since recent changes in marijuana laws have been made. Of note, while the concepts of legalization and decriminalization are fundamentally different, and were asked about separately in our survey, we found that they tended to track together (i.e. for each drug the mean ratings were either low, or below five, as in the case of heroin and cocaine, or above 5, as in the case of both recreational and medical marijuana). Thus, we will discuss the attitudes about both together.

These findings are particularly important because persons who misuse legal or illicit substances often have had interactions with the legal system, which may influence their attitudes and beliefs. Over a third of our participants had experienced legal consequences related to substance use themselves or through someone close to them. Data from the 2002–2008 NSDUH survey provides corroborating evidence of this relationship between drug use and legal consequences by showing that among those who had past year illicit drug dependence or abuse, 18% and 36% had been arrested once or more than once that year, respectively. Within the subsample of NSDUH respondents reporting past year alcohol dependence or abuse, these values increased to 38% and 52%, respectively ( Lattimore et al., 2014 ). The estimated prevalence of SUDs among incarcerated persons, while largely varied across studies, is substantial within both female (30–60%) and male (10–48%) prisoners ( Gerstein and Harwood, 1990 ; Mason et al., 1997 ; Lo and Stephens, 2000 ; Fazel et al., 2006 ). The high prevalence and comorbidity with SUDs indicates that legal issues are a significant factor in the current climate of substance use in the US.

The majority of our participants were not in favor of legalizing nor decriminalizing heroin and cocaine, even if they or someone they knew had suffered legal consequences related to substance use, or if they themselves met criteria for a SUD. These findings suggest that this population would not support policy changes related to heroin and cocaine legalization/decriminalization, which may reflect their own experiences, making them more cautious about increasing availability of these drugs. This sample was generally supportive of legalization and decriminalization of both medical and recreational marijuana. However, persons without any substance use in the last 12 months had significantly lower ratings than other groups, and were mainly neutral about marijuana legalization/decriminalization. The exception was that persons with no primary substance use had a higher rating on decriminalization of medical marijuana (mean 7.1/10) compared with their other ratings, perhaps because this was the most conservative marijuana option given. Interestingly, there was a positive relationship between agreement with decriminalizing medical marijuana, and decriminalizing heroin, cocaine, and recreational marijuana among our total population, suggesting an openness to minimizing criminal consequences associated with medical marijuana tracked with openness to the same for other drugs.

Understanding attitudes and associated characteristics towards drug legalization and decriminalization is important, especially in the currently changing social landscape, as several states in the US have passed laws legalizing and/or decriminalizing marijuana. For example, a study involving persons who voted on the initiative to legalize marijuana in Washington state reported that once marijuana stores began to open, persons who previously voted against the initiative were more likely to change their vote, if given the chance, compared to those who had voted in support of it ( Subbaraman and Kerr, 2016 ). Given the current changing environment, it is timely to determine whether persons continue to support legalization/decriminalization of marijuana and, more broadly, whether they would support legalization/decriminalization of other illicit drugs. Additionally, with other countries conducting research on heroin as a treatment for OUD ( Ayanga et al., 2016 ), it is important to consider how this may be perceived in the US and whether attitudes vary as a function of demographic and/or ideological beliefs.

There are several limitations to this work. The use of an online survey through AMT involves some selection bias, and resulted in a population which, while diverse, is not completely representative of the US population as a whole though it is demographically consistent with other studies involving AMT workers ( Chandler and Shapiro, 2016 ). Additional studies conducted within a representative sample of the US population would be helpful to determine the impact of demographic characteristics, as well as legal status of marijuana in the state of residence, on perceptions of drug decriminalization/legalization. The fact that self-reported substance use was not verified, and was from an anonymous population, is another limitation, in addition to the fact that all persons who used opioids or stimulants were grouped together, due to small numbers, instead of being able to assess those who used heroin and cocaine, specifically. We were also unable to look at how the use of multiple substances (especially those with primary use of alcohol, a legal substance, in addition to illegal substances) affected attitudes toward drug legalization/decriminalization.

This study appears to be the first to systematically study opinions of persons from across the US who use substances, and those who do not, about the legalization and decriminalization of multiple substances, and results have relevance for current and future policies. Legalization/decriminalization of marijuana was supported, but not in the case of other drugs, despite changes in apparent attitudes in other countries. As more information is learned about potential health benefits of certain substances that may drive policy changes in favor of their legalization/decriminalization, it is critical that persons who are directly affected by any policy changes (i.e. those who use substances) be included in these discussions to provide their unique perspectives. Studies among persons in SUD treatment, or those with varying SUD severity, are also warranted, as they may prove even more insightful to inform policies on legalization/decriminalization and the use of currently illicit drugs as treatment for SUDs. It is also important to monitor and track the evolution in changes in attitudes and beliefs over time. These nuances may impact public health messaging and the ability to target certain groups.

Supplementary Material

Supplemental table, conflict of interest and source of funding:.

This work was supported by internal funding from the Johns Hopkins University School of Medicine. No conflicts declared.

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SLS’s George Fisher Discusses His New Book About Drugs, Morality, and Race

• April 2, 2024
• George Fisher; Q&A with Professor Richard Thompson Ford
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Stanford Law School’s George Fisher has spent decades exploring the history of criminal law and criminal institutions, including the regulation of alcohol and drugs. His latest book, Beware Euphoria: The Moral Roots and Racial Myths of Today’s War on Drugs , takes a deep historical dive into the surprising link between America’s drug wars and ancient religious strictures against non-procreative sex and drunkenness. Among a host of other issues, Beware Euphoria explores how early drug laws in the United States were passed primarily to shield white people from the snares of moral degradation and addiction. A former Massachusetts assistant attorney general and assistant district attorney, Fisher is the Judge John Crown Professor of law and the faculty co-director of the Criminal Prosecution Clinic at Stanford Law School.

On a recent edition of the Stanford Legal podcast, Fisher sat down with co-host Richard Thompson Ford, the George E. Osborne Professor of Law, to talk about his book, including his take on why our culture broadly accepts alcohol, but rejects other mind-altering substances. The following is an edited excerpt of the full interview, which can be found here . (For more, read the recent Stanford Lawyer article about Beware Euphoria .)

Ford: I know this book has been a real labor of love for you. You’ve worked on the topic for many years. Why did you undertake this project? 

I started as a Massachusetts prosecutor and back in the late 1980s and early 1990s, drugs were at the center of everything in the criminal system. There were drug prosecutions themselves, of course, which consumed an awful lot of our energy and a lot of the system’s energy. Then there were all the spinoff crimes—the theft-related crimes that people were addicted to drugs committed to generate the money to pay for those drugs. It was hard to be inside the system and not wonder what the system would be like without all of those drug-related prosecutions, as well as how we got here and why. 

Ford: There’s a common narrative today that mass incarceration was largely driven by the war on drugs and that the war on drugs was a result of racism. There’s the famous quote by President Nixon’s aide, John Ehrlichman, who said, we wanted to go after the hippies and Black people, so we tied the hippies to marijuana, we tied the Black people to heroin, and then we went after them. What does your book tell us about that argument?  

Mass incarceration is driven by drugs, but not as substantially as people sometimes think. It’s true that in the federal prison system, almost 50 percent of the population are people convicted of drug-related crimes. But the federal system is only about 10 percent of our prison system. In the states, drug-related crimes account for fewer than 20 percent of the people who are imprisoned. Most of the people in prison in the United States today are there for crimes of violence. But the mass incarceration narrative has largely prompted the unwinding of the old drug war. Ever since Michelle Alexander’s book came out in 2010, The New Jim Crow , the focus on mass incarceration and the racially disproportionate ways in which the drug laws are punished, has been enormously influential in breaking down support for the old war on drugs.

The war on drugs is often traced to the Nixon years. That quote you cited from John Ehrlichman was certainly memorable, and no doubt Nixon himself was virulently anti-drug and was probably a racist too, but the drug laws actually took a dip in severity during the Nixon years. They had been more severe before and they became more severe after. The drug war I study in this book is not the Nixon drug war, not even the Rockefeller-Eisenhower drug war of the ’50s, but the drug war of the late 19th century. The early anti-drug laws were laws about whites. They were enforced against those who sold to whites, and especially to young whites and to white women. The driving force was to protect the moral integrity of respectable whites, especially youth and women. It didn’t matter who the sellers were. The early laws against cocaine were largely directed against white pharmacists. So it’s really only in the 20th century that the drug war began to focus on people of color. 

Ford : So to the extent there’s racism involved in the early drug laws, it was that lawmakers didn’t care about the people of color. They cared about whites and the effect that drugs would have on corrupting white people, correct?

Yes, it was the racism of indifference. We see that most clearly in the early laws against opium dens. The first shot in the American war on drugs was fired in 1875 when the San Francisco Board of Supervisors enacted the country’s first ordinance against the opium dens, which was the country’s first law against any mind-altering drug other than alcohol. That law was written in race-neutral terms, but was characterized in the press as being the “San Francisco ordinance against white people in opium dens.” Those were the words that were used, not only in San Francisco, but when other anti-opium den laws were enacted in cities and states across the West. The police very self-consciously did not go after opium dens that were kept by the Chinese for the use of Chinese patrons. 

Ford: Why opium, later marijuana, but not alcohol, which is clearly also a powerful mind altering drug?

The moral lineage of the drug war goes back to early Christian notions of the wrongfulness of non-procreative sex. Those notions actually trace back earlier, but they were expressed in a very vivid and memorable way by the early Christian fathers who argued, with regard to non-procreative sex, that the sin of such sex was in the way it robs us of our reason —the faculty that most links humans with God. Our heads are up high, closest to the heavens, and we try to erect reason as the emperor over the temptations of the lower parts of our body, certainly our sexual organs, but also our stomachs and the appetitive parts of our character.

The notion was that sex was prototypically an instance in which the mind capitulates to the appetites of the lower members. That notion was expressed in almost unaltered form a millennium and a half later when Puritan theorists began to argue about the wrongfulness of drunkenness. From there, it’s a very short step to imagining the moral denunciation of pleasure-inducing drugs. I know it sounds simplistic, but the striking thing is how thick the evidence is that these threads carry forth from the early Christian times in a more or less unbroken fashion to the late 19th century when drugs first began to be banned. 

Alcohol is generally approved only when used in a non-intoxicating way. Imagine the same drug we know today as alcohol—but imagine that the only form of administration of that drug is a single swallow that carries the same punch as 10 shots of vodka, so one could not drink without getting drunk. Would that drug have been legal all these years? I think the answer to that is pretty clearly no. Alcohol is perceived as a drug that can be used in a non-intoxicating way, and it is seen as serving a lot of good, among them easing reasoned intellectual conversation, which is reason-enhancing, not reason-depriving. 

Ford: I’m wondering what you make of what’s happening with marijuana today. We’re slowly, it seems, moving in the direction of complete legalization?

The first state that banned cannabis was Massachusetts and four of the first 10 were in New England. It was once again, a story about morality and the protection of youth. But with all of those early state laws, I think with one exception, when they banned cannabis in the early part of the 20th century, they all preserved medical use as lawful. Doctors could continue to prescribe cannabis for a very narrow class of ailments. The striking departure, and the one part of the drug war that does trace particularly to the Nixon era, was the 1970 Controlled Substances Act, which classified cannabis as a Schedule I drug with no recognized medical use.  That part was out of line with the whole history of drug and alcohol prohibition, where medical uses have been preserved in both the drug and alcohol realms—and not just cannabis, but also cocaine and the opiates.

So when states began to legalize medical cannabis use, that simply returned us to the old historical status quo. But it was revolutionary wh en Colorado and Washington and other West Coast states began to legalize recreational cannabis use. The interesting part of that story is what triggered it: We go back again to Michelle Alexander’s book, The New Jim Crow,   and the way it brought to a wide audience conversations that had existed largely in the academic world about how the drug war was being weaponized against communities of color. That argument has the catalyst for legalization. The majority of jurisdictions that have legalized cannabis use for recreational purposes have also enacted equity provisions so that the licensing of cannabis dispensaries has been directed predominantly toward those communities hardest hit by the war on drugs, meaning those communities where there has been a higher proportion than elsewhere of cannabis-related arrests. Licenses for cannabis dispensaries have been allocated disproportionately to people who were prosecuted and convicted and imprisoned for cannabis-related crimes during the earlier drug war.

Ford: Now that cannabis use is effectively legal in many states, one of the consequences is that the potency of marijuana being sold, whether on the streets or in the legal dispensaries, has gotten much greater, correct? 

I predict that unless those marketing cannabis become savvier about the way they market it, including in terms of the potency, there will be a backlash. That’s exactly the message that will trigger the old moral notions, which are no longer springing from religious authority, but rather from the notions of mind clarity, and the problems with checking out and escaping from reality. We see that in Oregon, where the legislature just this week voted to undo the decriminalization provisions that had been enacted only a couple years ago, during a time when people thought that the war on drugs was truly coming to an end. I think the war on drugs in every realm except for cannabis is still vigorous. And in the realm of cannabis, I would not be shocked if the liberalization trend we’ve been watching stalls at the point where we are now.

Listen to the Stanford Legal Podcast

A former Massachusetts assistant attorney general and assistant district attorney, George Fisher is one of the nation’s top scholars of criminal law and evidence. In his scholarship he explores, through meticulous archival research, the history of criminal law and criminal institutions from prisons to juries, from plea bargaining to the regulation of alcohol and drugs. His publications include an acclaimed casebook on evidence and a history of plea bargaining in America. Professor Fisher is the faculty co-director of the Criminal Prosecution Clinic at the law school and a four-time winner of the John Bingham Hurlbut Award for Excellence in Teaching at Stanford Law School. Before joining the Stanford Law School faculty in 1995, he was a clinical professor at Boston College Law School, an assistant attorney general in the Civil Rights Division of the Massachusetts Attorney General’s Office, and an assistant district attorney for Middlesex County, Massachusetts. Early in his career Professor Fisher clerked for Judge Stephen G. Breyer (BA ’59) of the U.S. Court of Appeals for the First Circuit.

number 59 • Spring 2024

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This is Your Constitution on Drugs

Ilya shapiro, summer 2020.

Can something be legal and illegal at the same time? That may sound impossible, but it has increasingly become reality for cannabis in the United States. As more and more states legalize marijuana while Congress stands pat and the executive branch works out enforcement complexities, people across the country are asking themselves: What is this magical Schrödinger's weed?

The answer lies not in the nature of marijuana itself, but in America's system of dual sovereignty, which divides powers between the federal and state governments. When two overlapping sovereigns have policymaking authority, their laws and enforcement policies are bound to clash at times. Indeed, marijuana regulation is not the only policy area where state and federal laws have come into conflict, either historically or in recent years. States today are increasingly reasserting sovereignty in areas as diverse as health care, gun control, and immigration. Given the near inevitability of separate sovereigns' adopting contradictory laws, the real question is not whether conflicts will occur, but which law takes precedent when they do.

The Constitution's Supremacy Clause, which states that federal law trumps any state law to the contrary, appears to resolve the matter in favor of the federal government. Yet the answer is not so simple. The Supreme Court recognizes two limits on federal supremacy. First, the federal policy in question must have a valid constitutional basis, because the national government's powers are enumerated and thus limited. And second, even in areas where Congress can properly enact law, the Tenth Amendment prevents the federal government from using the states as instruments of governance.

The Supreme Court reiterated this latter limit — known as the "anti-commandeering" principle — as recently as the 2018 case of Murphy v. NCAA , a challenge to New Jersey's legalization of sports betting in the face of federal law that purported to stop states from taking such legislative action. Put simply, the doctrine asserts that Congress cannot compel the states to carry out federal law. In the marijuana context, a federal ban can only be implemented, practically speaking, through the greater law-enforcement resources of the states, as the federal government is responsible for just 1% of the 800,000 annual marijuana arrests. Meanwhile, an appropriations rider prevents the Justice Department from using federal funds to prosecute those who use medical marijuana in the 33 states (and the District of Columbia) where this activity is lawful. In any case, even in the shadow of the federal ban, state-level marijuana legalization has flourished, indicating that federal supremacy has its limits.

As for Congress's authority to prohibit the cultivation and use of marijuana in the first place — the first limit on federal supremacy noted above — the culprit is the Commerce Clause. More specifically, the authority derives from the Supreme Court's expansive interpretation of Congress's Article I, Section 8 power to regulate commerce "among the several States." This interpretation stems from the 1942 case Wickard v. Filburn , in which the Court ruled that Congress could regulate the wheat a farmer grew for noncommercial purposes because, in the aggregate, growing wheat affects interstate commerce.

Despite this flimsy rationale for allowing Congress's lawmaking reach to extend beyond trade among the states, the decision remains good law. Moving from wheat to weed, the Court declined the opportunity to push back on Wickard 63 years later, instead holding in Gonzales v. Raich that prohibiting the private cultivation and use of marijuana was still within the scope of the Commerce Clause; these, too, are economic activities that, in the aggregate, affect interstate commerce. It further held that banning the growth of marijuana for medical use — permitted in California, where the case originated — was a permissible way for the federal government to prevent access to marijuana for other uses.

The vote in Raich was 6-3. Justice John Paul Stevens wrote for the majority, with the other three liberal justices and Justice Anthony Kennedy joining his opinion. Meanwhile, Justice Antonin Scalia wrote a concurring opinion asserting that Congress can regulate noneconomic intrastate activities where failing to do so would undermine a broader regulation of interstate commerce. He grounded his concurrence in the Necessary and Proper Clause, which gives Congress the power "[t]o make all Laws which shall be necessary and proper for carrying into Execution" its enumerated powers.

Since Scalia had voted with the pro-federalism majorities that held unconstitutional Congress's creation of gun-free school zones ( United States v. Lopez in 1995) and a cause of action for victims of gender-motivated violence ( United States v. Morrison in 2000), Raich became known as the late justice's "drug-war exception" to the Constitution. To paraphrase Justice Clarence Thomas's Raich dissent, growing pot in one's own backyard for private use is emphatically not a form of interstate commerce. What's more, Thomas observed, "if the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce but because it is inextricably bound up with interstate commerce), then Congress' Article I powers — as expanded by the Necessary and Proper Clause — have no meaningful limits."

Ironically, the excessive regulation of commerce was one of the complaints the colonists laid at the feet of George III in the Declaration of Independence. Even if the founders had contemplated an expansive Commerce Clause that allowed for a federal police force and prison system to prosecute and punish local, often noncommercial, behavior, is it possible they understood the clause to allow for nearly half of federal prisoners to be imprisoned on drug charges? After all, when drawing up the list of crimes that had to be dealt with nationally, the framers chose just four: treason, piracy, counterfeiting, and crimes against the law of nations.

But this essay isn't just about marijuana federalism or the growth of federal power since the New Deal. Those are just gateways to a broader discussion of how drug policy — including at the state level, where most of the action is — has perverted constitutional understandings, undermining the idea that the federal government is one of limited powers, but also weakening our rights and freedoms more broadly. We are in the midst of a war on drugs that is at war with the Constitution. Indeed, the drug war has altered our constitutional consciousness.

THE PHILOSOPHICAL ROOTS OF THE WAR ON DRUGS

Our analysis starts at the Constitution's preamble. This introductory statement declares:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

While rhetorically powerful, the preamble has no direct legal effect; as Joseph Story wrote in his Commentaries on the Constitution of the United States , the "true office" of the preamble is "to expound the nature and extent and application of the powers actually conferred by the Constitution, and not substantively to create them." Similarly, the General Welfare Clause — which echoes the preamble's reference to the "general Welfare" in opening the enumeration of legislative powers in Article I, Section 8 — does not grant Congress a general power to pass whatever laws it wants. Indeed, the idea that the clause justifies any legislation that gains a congressional majority — as opposed to limiting federal reach to truly national issues — emerged during the progressive era. After 1937's so-called "switch in time that saved nine," no legislation would be invalidated on federalism grounds until Lopez in 1995.

Yet promoting the general welfare is ostensibly the underlying justification for federal drug regulation. Consider the Controlled Substances Act (CSA), the statute that first established federal drug policy in 1971. The CSA reads, "The illegal importation, manufacture, distribution, and possession and improper use of controlled substances have a substantial and detrimental effect on the health and general welfare of the American people." According to this statement, federal lawmakers clearly thought (and still think) they have the power to decide which assortments of chemicals Americans can and cannot put into their bodies, based on whether consuming such chemicals is good or bad for the nation's general welfare.

President Richard Nixon agreed. When he signed the CSA, he said he wanted to help "save the lives of hundreds of thousands of our young people who otherwise would become hooked on drugs and be physically, mentally and morally destroyed." That may be a noble cause — especially for those who believe drug use is not only unhealthy but immoral — yet neither the president nor Congress is empowered to act as an arbiter or enforcer of morality in this way. As Justice Kennedy announced in one of the few clear-cut rules he articulated — with respect to both the LGBT community ( Lawrence v. Texas in 2003) and religious believers ( Masterpiece Cakeshop v. Colorado Civil Rights Commission in 2018) — moral disapproval is not a sufficient basis for government action.

It appears that the General Welfare Clause serves as the philosophical justification for federal drug legislation, but it does not suffice as a legal justification. To find the latter, one must look to Congress's powers as enumerated in Article I of the Constitution.

CONGRESS'S ENUMERATED POWERS

We begin our analysis of the Constitution's enforceable provisions in the drug-war context with Article I, Section 8. This section contains a list of Congress's enumerated powers, those powers that the Constitution expressly delegates to the federal legislature. The war on drugs has touched on, and at times twisted beyond recognition, our understanding of several of these provisions.

As discussed above, Congress has the express constitutional authority "[t]o regulate Commerce...among the several States." Setting aside Wickard and its progeny — through which Congress has extended its presence far beyond any limit set by this clause — the fledgling marijuana industry has also brought to light the harm caused by Congress's absence in the interstate-commerce realm. Interestingly, the Commerce Clause does not just authorize Congress to regulate interstate commerce; it has also been read to ensure the free flow of goods and services across state lines. This "dormant" Commerce Clause prohibits states from discriminating against out-of-state commercial interests or otherwise attempting to regulate conduct beyond their borders. Yet the federal ban on transporting marijuana across state lines means that businesses in the industry must vertically integrate all commerce within balkanized state marketplaces where marijuana is legal, leading to inefficiencies and by-design state protectionism. In other words, states that have legalized marijuana must show preference to in-state growers and sellers by default. When Congress gets around to modernizing federal cannabis law, it will need to ensure that, for residents of those states that legalize marijuana, trade among them is free, fair, and regular.

Also as mentioned above, the Constitution lists four federal crimes — counterfeiting, treason, piracy, and violations of the law of nations. The original federal code expanded that list to approximately 30 crimes, focusing solely on those offenses worthy of national attention. By the early 1980s — just after the drug war was declared — the number of federal criminal offenses stood at around 3,000. Today, researchers estimate that 5,000 federal statutes include criminal penalties. This number doesn't even include the penalties contained in an estimated 300,000 federal regulations. While the number of federal crimes had certainly risen between 1789 and 1980, the drug war has triggered nothing short of an explosion in these numbers.

Article I, Section 8 also contains a Postal Clause, which delegates to Congress the power "[t]o establish Post Offices." The skyrocketing number of mail- and wire-fraud crimes in the federal criminal code — the intersection of the Postal and Commerce Clauses — can in significant part be traced to the war on drugs. And that war has also affected the privacy of our mail. In the 1878 case Ex parte Jackson , the Supreme Court held that "[n]o law of Congress can place in the hands of officials connected with the postal service any authority to invade the secrecy of letters and such sealed packages in the mail." Yet with the Anti-Drug Abuse Act of 1988, Congress granted the U.S. Postal Service the authority to inspect any packages it thinks might contain drugs using dogs, scanning technology, and inferences akin to what the police use in establishing probable cause.

The next clause grants Congress the power to secure "for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." In other words, Congress can protect inventors' intellectual property by granting them patents, which gives them incentive to pursue new and potentially beneficial research. But because certain drugs are illegal at the federal level, most narcotics-related inventions cannot benefit from patent protection. Instead, the development of pharmaceuticals using illicit narcotics is contingent on executive-branch decisions regarding which drugs to prohibit and which research projects to allow. This gives the president, not Congress, authority over intellectual property.

Meanwhile, Article I, Section 8 could not be more clear in vesting Congress, not the executive, with the power to declare war. But it was President Nixon who first declared war on drugs. The phrase itself was initially just a rhetorical label, but it has since come to involve the extensive use of military force both within the United States and abroad. A prime example is Operation Just Cause — the 1989 invasion of Panama — where combating drug trafficking was one of President George Bush's stated goals. During the operation, nearly 26,000 American servicemen invaded Panama without any congressional declaration of war.

Then there's the Posse Comitatus Act, which deals with the government enlistment of civilians in law-enforcement tasks. The Act generally prevents the use of armed forces for domestic law enforcement but carves out an exception for military support of civilian agencies engaged in "drug interdiction and counter-drug activities." President Donald Trump invoked an exception to the Act in his 2019 emergency declaration regarding the southern border, which re-apportioned Defense Department funds to the construction of a wall between the United States and Mexico. The president justified his decision in part by pointing to the southern border as a "major entry point for...illicit narcotics."

The power "[t]o exercise exclusive Legislation" over the District of Columbia belongs to Congress as well, though in 1973, Congress granted the district home rule. D.C. is now largely governed by a mayor and city council, but Congress retains authority over the district's budget and can block any laws the council passes. This unique arrangement has had unusual consequences for marijuana policy. In 2014, D.C. residents passed Initiative 71, which legalized marijuana for recreational use. Congress then stepped in to prevent the district from regulating or taxing the drug. The result puts marijuana in a sort of legal limbo: Although people can legally possess and use marijuana in the nation's capital, it remains illegal to purchase it there.

In addition to exceeding the powers enumerated in Article I, Section 8, federal drug laws also allow the executive branch to bypass the legislative process, violating the separation of powers. For instance, the attorney general — in reality, bureaucrats at the Justice Department, the Food and Drug Administration, and the Drug Enforcement Administration — can add substances to the CSA schedules, in effect establishing new criminal offenses, without legislative or judicial review. Substances can also be de-scheduled or reclassified, thereby abolishing offenses or changing associated penalties and collateral consequences without congressional input.

In sum, there's no dispute that Congress has the constitutional authority to tax drugs, to borrow money to fund anti-drug programs, to regulate or restrict the interstate and international drug trade, and to otherwise exercise its Article I, Section 8 powers — in addition to passing all laws "necessary and proper" for carrying out these listed powers. But the source of its authority to prohibit the production, possession, sale, or use of drugs — at least within the states — remains questionable at best. The drug war has distorted our understanding of much of the Constitution, and that's even before we consider the Bill of Rights.

THE BILL OF RIGHTS

Although originally an afterthought, the Bill of Rights — comprising the first ten amendments to the Constitution — has come to represent America's enduring commitment to liberty. Yet here again, the war on drugs has chipped away at some of Americans' most cherished freedoms.

The First Amendment begins with the religion clauses, which bar Congress from interfering with the free exercise of religion and establishing a national religion. (Both clauses, like almost all Bill of Rights provisions, have also been applied to the states through the 14th Amendment.) Regarding the former, ongoing controversies over Obamacare's contraceptive mandate have thrust into prominence an unusual case called Employment Division v. Smith (1990). In that case, Native American employees of a drug-rehabilitation clinic were fired and rendered ineligible for unemployment insurance after they ingested peyote for religious purposes. The Supreme Court upheld that result, holding that neutral laws of general applicability — like Oregon's zero-tolerance drug policy — do not violate the right of religious exercise. Many, however, characterize the decision as undermining the Free Exercise Clause, even if it was written by Justice Scalia.

In response to public backlash against Smith , the House unanimously, and the Senate by a vote of 97-3, passed the Religious Freedom Restoration Act (RFRA), to ensure that courts would apply the highest level of scrutiny to laws that interfere with Americans' free exercise of religion. After the Supreme Court invalidated RFRA's application to the states in City of Boerne v. Flores (1997), 21 states adopted their own versions of the law, and state courts have added RFRA-like provisions in 10 others. As scholarly and public debate over Smith continues, the case itself would not have come about if Oregon hadn't adopted a zero-tolerance drug policy; even Prohibition-era laws allowed the production, sale, and use of sacramental wine.

There could also be an Establishment Clause problem with the drug war, because many diversion programs — which allow people to avoid being jailed for low-level drug crimes — require completing a 12-step program akin to Alcoholics Anonymous. It turns out that most of these programs require people to turn themselves over to God, ask God to cure them of moral defects, and otherwise share in a spiritual awakening. Several federal appeals courts have declared such coerced participation in religious activity by prisoners, parolees, and probationers unconstitutional.

In addition to protecting religious expression, the First Amendment also prohibits laws that interfere with the freedom of speech. Yet government actors appear all-too-ready to ignore this clause in situations involving drugs. In 2004, for instance, the American Civil Liberties Union and several drug-policy groups sued the U.S. Department of Transportation when the Washington Metropolitan Area Transit Authority (WMATA) refused to place an ad saying that "marijuana laws waste billions of taxpayer dollars to lock up non-violent Americans." Following the government's loss at trial, then-solicitor general and perennial appellate superstar Paul Clement refused to defend WMATA or congressional efforts to block similar ads nationwide, saying that he lacked a viable argument.

Public school students are also afforded expressive rights under the First Amendment; as Justice Abe Fortas declared in Tinker v. Des Moines Independent Community School District (1969), students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Unless, of course, it involves speech that alludes to illicit drugs. In Morse v. Frederick (2007), the Supreme Court upheld the suspension of a high-school student who displayed a banner reading "Bong Hits 4 Jesus" across the street from his school during the 2002 Olympic torch relay. Nobody really knows what the banner meant (if anything), but it could be interpreted as promoting drug use. A majority of the Court held that suppressing this kind of speech was a necessary part of the school's mission. In doing so, as Justice Stevens pointed out in dissent, the majority abandoned the general rule that speech advocating dangerous or unlawful activity could only be punished if it is likely to "incite imminent lawless action."

The First Amendment also preserves the right to assemble peacefully, yet many local ordinances targeting drug-gang activity throw the status of this right into question. A particularly egregious example occurred in the 1997 case of People ex rel. Gallo v. Acuna , where the California Supreme Court held that an injunction prohibiting suspected gang members from "[s]tanding, sitting, walking, driving, gathering or appearing anywhere in public view" with other suspected gang members did not violate the freedom of association.

The final clause of the First Amendment protects Americans' right "to petition the Government for a redress of grievances." Somehow, this message did not reach Washington state. In the run-up to a marijuana ballot measure that voters eventually approved, state police harassed and arrested activists collecting signatures to support legalization. Likewise, in Nevada, once it became clear that proponents of a similar measure would gather the requisite 10% of the population's signatures for approval, the government changed the rules and called for an additional 30,000 signatures. Fortunately, a judge set aside the new requirement, but the fact this case came about shows how far some officials will go to fight the drug war.

The Second Amendment prohibits the government from infringing the people's right to bear arms. But considering the fact that anyone convicted in any court of any offense where the potential — not actual — sentence is more than a year in prison cannot use a firearm, large swathes of Americans are forbidden from exercising this right. Moreover, anyone who is an unlawful user of, or is addicted to, any controlled substance cannot possess firearms or ammunition. This issue has come to the forefront recently in Hawaii, as the state both requires the registration of all firearms and allows the use of marijuana for medicinal purposes. Aside from the Second Amendment concerns such measures raise, the ban on firearms possession for those who use drugs reaches staggering levels of hypocrisy considering that Bill Clinton, Barack Obama, and George W. Bush have admitted to using illicit substances. But because they were never convicted, they were allowed to control the most powerful military in history — including its nuclear arsenal.

The war on drugs' biggest constitutional impact is undeniably in the area of criminal procedure, which implicates the Fourth Amendment. This amendment preserves the public's right against unreasonable searches and seizures. In Criminal Procedure  — a leading law-school casebook by Joseph Cook, Paul Marcus, and Melanie Wilson — 12 of 18 cases on probable cause, and 20 of 27 on warrantless searches and seizures, involve drugs. In most of these cases, the Court has whittled away or otherwise made exceptions to the Fourth Amendment.

Take the various exceptions to the amendment's warrant requirement for searches, many of which the Supreme Court either created or greatly expanded in cases arising from drug crimes. Typically, the Fourth Amendment guarantees protection from warrantless searches in places where people have a reasonable expectation of privacy. According to the amendment's text, these areas include one's person and one's home. Yet in United States v. Robinson (1973), the Court held it reasonable for police to search a person in custody not just for weapons that might pose a threat to the police, but for any contraband, even without reasonable suspicion that the person is carrying drugs. Ten years earlier, in Ker v. California , the Court established the imminent-destruction-of-evidence exception to the warrant requirement, which allows police to break into suspects' homes without knocking to prevent the destruction of narcotics or other contraband. And in 1984, the Court held in Oliver v. United States that landowners have no reasonable expectation of privacy in their land even if it is hidden from public view by a fence or other obstruction. In that case, police were acting on a tip that the landowner was growing marijuana on his property.

The Supreme Court has also read the Fourth Amendment to extend to one's automobile. Yet United States v. Ross (1982) all but did away with the amendment's warrant requirement in many circumstances involving vehicles by holding that if police have probable cause to believe that a car contains drugs, they can search it without a warrant. And in 1976, South Dakota v. Opperman authorized inventory searches of towed and impounded vehicles even without probable cause.

In terms of seizures of persons, otherwise known as "detentions," the Fourth Amendment forbids such action without probable cause — at least according to the text. Yet in United States v. Sokolow , the Supreme Court upheld the Drug Enforcement Administration's use of a "drug courier profile" to detain people at airports. Courier profiles — which vary based on the professional experiences of a given group of law enforcement officers — comprise a list of behavioral traits that tend to distinguish travelers carrying illicit drugs. Such traits include appearing nervous, making a phone call shortly after arriving, having little or no luggage, having a significant amount of luggage, using public transit, and paying cash for a ticket (the case was decided in 1989). In certain police departments, the list also includes activities like departing the plane first, last, or somewhere in between. The profile varies among agencies and transit hubs without any sort of consistency.

Warrantless seizures and searches can also take place in schools. A particularly egregious example occurred in Safford Unified School District v. Redding (2009), when the Supreme Court ruled that two school staff members who forced a 13-year-old girl to remove her clothes and shake out her underwear because they thought she was hiding contraband — ibuprofen (Advil) — could not be held liable for their actions. The Court found that the search was unreasonable but not obviously unconstitutional, meaning that the school employees were protected by the doctrine of qualified immunity. That is, the Court felt it was not clear that strip-searching a young girl to look for headache pills violated her rights. Why? Because until this case, several lower courts had upheld these types of searches based on schools' zero-tolerance drug policies.

The Fifth Amendment also preserves people's rights in the criminal-procedure context. Among the most crucial of these is the right to due process, which affords protection from government deprivations of one's life, liberty, and property without due process of law. At minimum, due process requires notice of the charges and an opportunity to be heard before a neutral judge. The practice of civil asset forfeiture, which often coincides with suspected drug activity, calls into question the government's commitment to upholding due process.

Civil forfeiture laws allow police to seize people's property without a hearing or even notice, much less a finding of guilt. In theory, the practice is authorized based on the property's suspected connection with criminal activity. Yet asset-forfeiture statutes frequently fail to distinguish between illicit proceeds from criminal activity and property that belongs to criminals or their family members but has no connection to any crime. (Incidentally, this implicates not only due process, but the Fifth Amendment's Takings Clause, which protects against government seizure of property without just compensation.) The burden of proving the forfeiture illegitimate is placed on either the owner or, oddly enough, the inanimate object itself. What's more, police are allowed to keep most of the proceeds acquired from the sale of seized property, creating a perverse incentive for officers to initiate forfeiture proceedings. Suffice it to say, most of the property forfeited under such laws is acquired pursuant to a narcotics investigation.

The courts have yet to outline a standard for the right to trial "without unnecessary delay" under the Sixth Amendment, but wait times for trial frequently exceed any reasonable interpretation of that phrase. In New York City, the average wait time for all criminal jury trials in 2011 was 414 days, up from 274 just 10 years earlier. The average wait time for a murder trial in 2011 was over 750 days. These numbers have only grown. And though not all crimes are drug-related, non-violent drug offenses are responsible for a substantial portion of all arrests. If these cases were eliminated, the entire system would move more quickly.

The massive number of people arrested and charged with drug offenses affects not only how long defendants have to wait for trial, but also the quality of their legal representation, which implicates the Sixth Amendment's right to assistance of counsel. The Bureau of Justice Statistics (BJS) estimates that more than three-quarters of indigent prisoners across the country are represented by a public defender. Thanks in large part to the drug war, public defenders' caseloads have increased dramatically since the 1970s, now far exceeding the maximum caseloads that the National Advisory Commission on Criminal Justice Standards and Goals recommended in 1973. What's more, public defenders are at a severe disadvantage when it comes to financial resources: A 2007 study of indigent defendants in Tennessee found that public defenders in these cases had less than half the funding of prosecutors (and this doesn't account for the free resources that the prosecutors can access, like crime labs and the police themselves). Citing BJS statistics, a 2011 meta-study found that spending in constant dollars per indigent defendant began to decrease rapidly in the early 1980s, which is right when the drug war kicked into high gear and the number of indigent defendants started to skyrocket. The decline in time and resources devoted to the defense of indigent defendants — many of whom are arrested on drug-related charges — is yet another undesirable consequence of the drug war that undermines Americans' constitutional rights.

The war on drugs has implications not only for the criminal-procedure protections of the Fourth, Fifth, and Sixth Amendments, but for the Eighth Amendment as well. The latter prohibits "excessive fines" and "cruel and unusual punishment," both of which have been interpreted to demand proportionality between sentence and offense. The Supreme Court applied the Excessive Fines Clause against the states just last year in Timbs v. Indiana . The plaintiff in that case, Tyson Timbs, had sold $400 worth of heroin to undercover police. He pleaded guilty and was sentenced to home-detention and probation. The state also ordered him to forfeit his $42,000 Land Rover, which he had acquired with funds from an inheritance, not proceeds from a crime. The vehicle was worth more than four times the maximum fine for his charge. An Indiana trial court found the forfeiture amount "excessive" and "grossly disproportional to the gravity of the Defendant's offense." Meanwhile, in South Carolina last year, a judge ruled that that state's civil forfeiture laws ran afoul of the Excessive Fines Clause.

Further on the subject of disproportionate punishment, in 2010, the average mandatory minimum for drug offenders was 132 months. That 11-year average sentence is equivalent to the sentence for a Class C felony, which covers voluntary manslaughter, bank robbery, and selling a person into slavery. The U.S. Sentencing Commission likes to brag that, with relief, the average sentence for drug offenders is reduced to 61 months, but this is not something to be proud of, either. Other offenses that carry a maximum sentence of less than 61 months include domestic assault, assault of a child with substantial bodily injury, female genital mutilation, and incitement of genocide.

Jurisdictions with habitual-offender laws — where the sentences imposed have no relationship to the severity of the crime — can inflict punishments for drug offenses that are outrageously disproportionate to the wrong committed. California is probably the worst offender: Under its three-strikes law, certain non-violent felony drug offenses can count as a third strike if the first two offenses were considered violent or serious. Committing three strikes can earn a defendant 25 years to life in prison. Non-violent possession offenses represent the archetypal victimless crime, so the harm caused to society is an abstraction at best. Yet even if the law should prevent people from harming themselves, one still has to ask which option is worse for a person's health and life prospects: smoking marijuana, or spending serious time in prison.

These excessive sentence lengths for drug-related offenses, coupled with the ramping up of drug-war enforcement efforts, are at least partially responsible for the grim conditions in many of our nation's prisons. Again, California provides a useful example. The state's prisons were built to hold 80,000 inmates; a decade ago, they held double that number. Because of this overcrowding, California was unable to provide inmates with adequate and timely medical care, and resorted to throwing the ill into "administrative segregation." One guard testified that up to 50 prisoners at a time would be held in a 12-by-20 foot cage for up to five hours while awaiting medical care, which works out to 4.8 square feet per person. By way of comparison, during the transatlantic slave trade, experts estimate that each slave had about six square feet. In Brown v. Plata (2011), the Supreme Court held that the unsanitary conditions created by overcrowding in California's prisons constituted cruel and unusual punishment in violation of the Eighth Amendment.

THE POST-CIVIL WAR AMENDMENTS

Between 1791 — when the Bill of Rights was ratified — and 1864, the Constitution was amended only twice. Then between 1865 and 1870, the 13th, 14th, and 15th Amendments were adopted in the wake of the Civil War. Collectively, these amendments abolished slavery, guaranteed constitutional rights against state action, and extended the right to vote to all citizens without regard to color or previous status as a slave. Yet despite these efforts to extend the blessings of liberty to all Americans, campaigns to prohibit or end drug use have had decidedly racial overtones.

For instance, the 14th Amendment promises equal protection of the laws, but in 1875, San Francisco passed an ordinance banning opium dens — probably the first narcotics prohibition in America — out of concern that Chinese proprietors were using them to lure white women. Early marijuana regulations targeted supposed Mexican lawlessness. And alcohol-prohibition campaigns, culminating in the 18th Amendment in 1919, were partly motivated by animus toward German Americans.

Even discounting racial motives, the enforcement of modern drug laws yields disproportionate results among different races. While marijuana-usage levels are relatively constant across racial groups, African Americans are nearly four times more likely to be arrested for possession than whites — a disparity that has only increased in the last 20 years. Stop-and-frisks — also known as Terry stops, where police pat down a suspect for weapons — have a racial dimension, too. Of the 685,000 people stopped by the New York Police Department in 2011 alone, 87% were black or Latino, even though the white individuals stopped were twice as likely to be found with a weapon. (Of the total number stopped, about 88% were innocent of any crime.)

While the 15th Amendment expanded the franchise to all male citizens regardless of color in 1870, tens of thousands of African Americans continue to be disenfranchised today due to the war on drugs. This is because they make up 40% of the nation's prisoners serving time for drug-related offenses, and many states restrict the voting rights of those with criminal records. Currently, 16 states and the District of Columbia restrict voting rights only during incarceration, and nearly half the states add restrictions during probation and parole. In some states, the restoration of voting rights post-confinement or supervision depends on certain conditions or individual petitions. And in three states — Iowa, Kentucky, and Virginia — a felony conviction means permanent disenfranchisement (although governors in Kentucky and Virginia have sought to relax or otherwise sidestep these bans in recent years). There are valid reasons for prohibiting felons from voting until and unless they've paid their debt to society — Maine and Vermont are real outliers in allowing them to vote from prison  — but it is hardly reasonable to deny these kinds of rights to non-violent drug offenders.

THE RULE OF LAW

The war on drugs has been fought largely with laws that were beyond Congress's powers to enact. Although it took a constitutional amendment to allow Congress to prohibit alcohol nationwide, the prohibition of now-illicit substances under the CSA took place without any such amendment. This is perhaps mainly a commentary on the Supreme Court's expansive reading of the Commerce Clause, but it should give pause to anyone who takes the Constitution seriously.

Beyond the modern drug war's legally dubious initiation, the strained legal interpretations and yawning exceptions officials have made to sustain the effort continue to warp our constitutional system. In prosecuting and expanding the war on drugs, the federal government has racked up colossal amounts of debt, fostered state protectionism, adopted countless new federal crimes, and invaded foreign countries without congressional authorization. Meanwhile, government actors at all levels have undermined Americans' freedoms of expression and religious exercise, deprived citizens of their rights to vote and bear arms, authorized warrantless searches and seizures of property without due process, and thrown tens of thousands of people — disproportionately racial minorities — into overcrowded prisons for sentences that are out of step with the crimes they've committed. These actions have changed our understanding of such foundational principles as limited government, federalism, and the separation of powers, all while casting doubt on America's commitment to the rule of law.

The Declaration of Independence may have affirmed Americans' unalienable rights to life, liberty, and the pursuit of happiness, but the drug war has undercut those rights at every turn. That fact does not argue for any particular reform, but it does demand that we consider the ongoing constitutional costs when we decide where to go from here.

Ilya Shapiro is director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute and publisher of the Cato Supreme Court Review . He is also the author of Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court , due out from Regnery in September.

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Understanding the Demand for Illegal Drugs (2010)

Chapter: 1 introduction, 1 introduction.

A merica’s problem with illegal drugs seems to be declining, and it is certainly less in the news than it was 20 years ago. Surveys have shown a decline in the number of users dependent on expensive drugs (Office of National Drug Control Policy, 2001), an aging of the population in treatment (Trunzo and Henderson, 2007), and a decline in the violence related to drug markets (Pollack et al., 2010). Still, research indicates that illegal drugs remain a concern for the majority of Americans (Caulkins and Mennefee, 2009; Gallup Poll, 2009).

There is virtually no disagreement that the trafficking in and use of cocaine, heroin, and methamphetamine continue to cause great harm to the nation, particularly to vulnerable minority communities in the major cities. In contrast, there is disagreement about marijuana use, which remains a part of adolescent development for about half of the nation’s youth. The disagreement concerns the amount, source, and nature of the harms from marijuana. Some note, for example, that most of those who use marijuana use it only occasionally and neither incur nor cause harms and that marijuana dependence is a much less serious problem than dependence on alcohol or cocaine. Others emphasize the evidence of a potential for triggering psychosis (Arseneault et al., 2004) and the strengthening evidence for a gateway effect (i.e., an opening to the use of other drugs) (Fergusson et al., 2006). The uncertainty of the causal mechanism is reflected in the fact that the gateway studies cannot disentangle the effect of the drug itself from its status as an illegal good (Babor et al., 2010).

The federal government probably spends $20 billion per year on a wide array of interventions to try to reduce drug consumption in the United States, from crop eradication in Colombia to mass media prevention programs aimed at preteens and their parents. 1 State and local governments spend comparable amounts, mostly for law enforcement aimed at suppressing drug markets. 2 Yet the available evidence, reviewed in detail in this report, shows that drugs are just as cheap and available as they have ever been.

Though fewer young people are starting to use drugs than in some previous years, for each successive birth cohort that turns 21, approximately half have experimented with illegal drugs. The number of people who are dependent on cocaine, heroin, and methamphetamine is probably declining modestly, 3 and drug-related violence has appears to have declined sharply. 4 At the same time, injecting drug use is still a major vector for HIV transmission, and drug markets blight parts of many U.S. cities.

The declines in drug use that have occurred in recent years are probably mostly the natural working out of old epidemics. Policy measures— whether they involve prevention, treatment, or enforcement—have met with little success at the population level (see Chapter 4 ). Moreover, research on prevention has produced little evidence of any targeted interventions that make a substantial difference in initiation to drugs when implemented on a large scale. For treatment programs, there is a large body of evidence of effectiveness and cost-effectiveness (reviewed in Babor et al., 2010), but the supply of treatment facilities is inadequate and,

perversely, not enough of those who need treatment are persuaded to seek it (see Chapter 4 ). Efforts to raise the price of drugs through interdiction and other enforcement programs have not had the intended effects: the prices of cocaine and heroin have declined for more than 25 years, with only occasional upward blips that rarely last more than 9 months (Walsh, 2009).

STUDY PROJECT AND GOALS

Given the persistence of drug demand in the face of lengthy and expensive efforts to control the markets, the National Institute of Justice asked the National Research Council (NRC) to undertake a study of current research on the demand for drugs in order to help better focus national efforts to reduce that demand. In response to that request, the NRC formed the Committee on Understanding and Controlling the Demand for Illegal Drugs. The committee convened a workshop of leading researchers in October 2007 and held two follow-up meetings to prepare this report. The statement of task for this project is as follows:

An ad hoc committee will conduct a workshop-based study that will identify and describe what is known about the nature and scope of markets for illegal drugs and the characteristics of drug users. The study will include exploration of research issues associated with drug demand and what is needed to learn more about what drives demand in the United States. The committee will specifically address the following issues:

What is known about the nature and scope of illegal drug markets and differences in various markets for popular drugs?

What is known about the characteristics of consumers in different markets and why the market remains robust despite the risks associated with buying and selling?

What issues can be identified for future research? Possibilities include the respective roles of dependence, heavy use, and recreational use in fueling the market; responses that could be developed to address different types of users; the dynamics associated with the apparent failure of policy interventions to delay or inhibit the onset of illegal drug use for a large proportion of the population; and the effects of enforcement on demand reduction.

Drawing on commissioned papers and presentations and discussions at a public workshop that it will plan and hold, the committee will prepare a report on the nature and operations of the illegal drug market in the United States and the research issues identified as having potential for informing policies to reduce the demand for illegal drugs.

The committee drew on economic models and their supporting data, as well as other research, as one part of the evidentiary base for this

report. However, the context for and content of this report were informed as well by the general discussion and the presentations in the workshop. The committee was not able to fully address task 2 because research in that area is not strong enough to give an accurate description of consumers across different markets nor to address the questions about why markets remain robust despite the risks associated with buying and selling. The discussion at the workshop underscored the point that neither the available ethnographic research nor the limited longitudinal research on drug-seeking behavior is strong enough to inform these questions related to task 2. With regard to task 3, the committee benefitted considerably from the paper by Jody Sindelar that was presented at the workshop and its discussion by workshop participants.

This study was intended to complement Informing America’s Policy on Illegal Drugs: What We Don’t Know Keeps Hurting Us (National Research Council, 2001) by giving more attention to the sources of demand and assessing the potential of demand-side interventions to make a substantial difference to the nation’s drug problems. This report therefore refers to supply-side considerations only to the extent necessary to understand demand.

The charge to the committee was extremely broad. It could have included reviewing the literature on such topics as characteristics of substance users, etiology of initiation of use, etiology of dependence, drug use prevention programs, and drug treatments. Two considerations led to narrowing the focus of our work. The first was substantive. Each of the topics just noted involves a very large field of well-developed research, and each has been reviewed elsewhere. Moreover, each of these areas of inquiry is currently expanding as a result of new research initiatives 5 and new technologies (e.g., neuroimaging, genetics). The second consideration was practical: given the available resources, we could not undertake a complete review of the entire field.

Thus, we decided to focus our work and this report tightly on demand models in the field of economics and to evaluate the data needs for advancing this relatively undeveloped area of investigation. That is, this area has a relatively shorter history of accumulated findings than the more clinical, biological, and epidemiological areas of drug research. Yet it is arguably better situated to inform government policy at the national level. A report on economic models and supporting data seemed to us more timely than a report on drug consumers and drug interventions.

The rest of this chapter briefly lays out some concepts that provide a basis for understanding the committee’s work and the rest of the report.

Chapter 2 presents the economic framework that seems most useful for studying the phenomenon of drug demand. It emphasizes the importance of understanding the responsiveness of demand and supply to price, which is the intermediate variable targeted by the principal government programs in the United States, namely, drug law enforcement. Chapter 3 then examines changes in the consumption of drugs and assesses the various indicators that are available to measure that consumption. Chapter 4 turns to the program type that most focuses specifically on reducing drug demand, the treatment of dependent users. It considers how well these programs work and how the treatment system might be expanded to further reduce consumption. Finally, Chapter 5 presents our recommendations for how the data and research base might be built to improve understanding of the demand for drugs and policies to reduce it.

PROGRAM CONCEPTS

A standard approach to considering drug policy is to divide programs into supply side and demand side. This approach accepts that drugs, as commodities, albeit illegal ones, are sold in markets. Supply-side programs aim to reduce drug consumption by making it more expensive to purchase drugs through increasing costs to producers and distributors. Demand-side programs try to lower consumption by reducing the number of people who, at a given price, seek to buy drugs; the amount that the average user wishes to consume; or the nonmonetary costs of obtaining the drugs. This approach has value, but it also raises questions.

The value of this framework is that it allows systematic evaluation of programs. A successful supply-side program will raise the price of drugs, as well as reduce the quantity available, while a demand-side program will lower both the number of users and the quantity consumed, as well as eventually reducing the price. As noted above, this report is primarily focused on improving understanding of the sources of demand.

There are two basic objections to this approach. First, some programs have both demand- and supply-side effects. Since many dealers are themselves heavy users, drug treatment will reduce supply, just as incarceration of drug dealers lowers demand. Second, there is a collection of programs that do not attempt to reduce demand or supply; rather, their goal is to reduce the damage that drug use and drug markets cause society, which are generally referred to as “harm-reduction” programs (Iversen, 2005; National Institute on Drug Abuse, 2010). 6 Nonetheless, the classifi-

cation of interventions into demand reduction and supply reduction is a very helpful heuristic for policy purposes, as well as being written into the legislation under which the Office of National Drug Control Policy operates.

What determines the demand for drugs? Clearly, many different factors play a role: cultural, economic, and social influences are all important. At the individual level, a rich set of correlates have been explored, either in large-scale cross-sectional surveys (such as the National Survey on Drug Use and Health and the National Household Survey on Drug Abuse) or in small-scale longitudinal studies (see, e.g., Wills et al., 2005). Below we briefly summarize the complex findings of those studies.

Less has been done at the population level. It is known that rich western countries differ substantially in the extent of drug use, in ways that do not seem to reflect policy differences. For example, despite the relatively easy access to marijuana in the Netherlands, that nation has a prevalence rate that is in the middle of the pack for Europe, while Britain, despite what may be characterized as a pragmatic and relatively evidence-oriented drug policy, has Europe’s highest rates of cocaine and heroin addiction (European Monitoring Center for Drugs and Drug Addiction, 2007). There is only minimal empirical research that has attempted to explain those differences. Similarly, there is very little known about why epidemics of drug use occur at specific times. In the United States, for example, there is no known reason for the sudden spread of methamphetamine from its long-term West Coast concentration to the Midwest that began in the early 1990s. There are only the most speculative conjectures as to the proximate causes.

A DYNAMIC AND HETEROGENEOUS PROCESS

The committee’s starting point is that drug use is a dynamic phenomenon, both at the individual and community levels. In the United States there is a well-established progression of use of substances for individuals, starting with alcohol or cigarettes (or both) and proceeding through marijuana (at least until recently) possibly to more dangerous and expensive drugs (see, e.g., Golub and Johnson, 2001). Such a progression seems to be a common feature of drug use, although the exact sequence might not apply in other countries and may change over time. For example, cigarettes may lose their status as a gateway drug because of new restrictions on their use. 7 Recently, abuse of prescription drugs has emerged as a possible gateway, with high prevalence rates reported for youth aged 18-25;

however, because of limited economic research on this phenomenon, this report’s focus is on completely illegal drugs.

At the population level, there are epidemics, in which, like a fashion good, a new drug becomes popular rapidly in part because of its novelty and then, often just as rapidly, loses its appeal to those who have not tried it. For addictive substances (including marijuana but not hallucinogens, such as LSD), that leaves behind a cohort of users who experimented with the drug and then became habituated to it.

An important and underappreciated element of the demand for illegal drugs is its variation in many dimensions. For example, the demand for marijuana may be much more responsive to price changes than the demand for heroin because fewer of those who use marijuana are drug dependent (Iversen, 2005; National Institute on Drug Abuse, 2010). Users who are employed, married, and not poor may be more likely to desist than users of the same drug who are unemployed, not part of an intact household, and poor. There may be differences in the characteristics of demand associated with when the specific drug first became available in a particular community, that is, whether it is early or late in a national drug “epidemic.”

There are also unexplained long-term differences in the drug patterns in cities that are close to each other. In Washington, DC, in 1987 half of all those arrested for a criminal offense (not just for drugs) tested positive for phencyclidine, while in Baltimore, 35 miles away, the drug was almost unknown. Although the Washington rate had fallen to approximately 10 percent in 2009 (District of Columbia Pretrial Services Agency, 2009), it remains far higher than in other cities. More recently, the spread of methamphetamine has shown the same unevenness: in San Antonio only 2.3 percent of arrestees tested positive for methamphetamine in 2002; in Phoenix, the figure was 31.2 percent (National Institute of Justice, 2003). These differences had existed for more than 10 years.

The implication of this heterogeneity is that programs that work for a particular drug, user type, place, or period may be much less effective under other circumstances, which substantially complicates any research task. It is hard to know how general are findings on, say, the effectiveness of a prevention program aimed at methamphetamine use by adolescents in a city where the drug has no history. Will this program also be effective for trying to prevent cocaine use among young adults in cities that have long histories of that drug?

This report does not claim to provide the answers to such ambitious questions. It does intend, however, to equip policy officials and the public to understand what is known and what needs to be done to provide a more sound base for answering them.

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Pollack, H., P. Reuter., and P. Sevigny. (2010). If Drug Treatment Works So Well, Why Are So Many Drug Users in Prison? Paper presented at the meeting of the National Bureau of Economic Research on Making Crime Control Pay: Cost-Effective Alternatives to Incarceration, July, Berkeley, CA. Available: http://www.nber.org/chapters/c12098.pdf [accessed August 2010].

Trunzo, D., and L. Henderson. (2007). Older Adult Admissions to Substance Abuse Treatment: Findings from the Treatment Episode Data Set . Paper presented at the meeting of the American Public Health Association, November 6, Washington, DC. Available: http://apha.confex.com/apha/135am/techprogram/paper_160959.htm [accessed August 2010].

Walsh, J. (2009). Lowering Expectations: Supply Control and the Resilient Cocaine Market. Available: http://www.eluniversal.com.mx/graficos/pdf09/wolareportcocaine.pdf [accessed August 2010].

Wills, T., C. Walker, and J. Resko. (2005). Longitudinal studies of drug use and abuse. In Z. Slobada (Ed.), Epidemiology of Drug Abuse (pp. 177-192). New York: Springer.

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Despite efforts to reduce drug consumption in the United States over the past 35 years, drugs are just as cheap and available as they have ever been. Cocaine, heroin, and methamphetamines continue to cause great harm in the country, particularly in minority communities in the major cities. Marijuana use remains a part of adolescent development for about half of the country's young people, although there is controversy about the extent of its harm.

Given the persistence of drug demand in the face of lengthy and expensive efforts to control the markets, the National Institute of Justice asked the National Research Council to undertake a study of current research on the demand for drugs in order to help better focus national efforts to reduce that demand.

This study complements the 2003 book, Informing America's Policy on Illegal Drugs by giving more attention to the sources of demand and assessing the potential of demand-side interventions to make a substantial difference to the nation's drug problems. Understanding the Demand for Illegal Drugs therefore focuses tightly on demand models in the field of economics and evaluates the data needs for advancing this relatively undeveloped area of investigation.

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Home — Essay Samples — Nursing & Health — Drugs — Drug Controls, Laws And Reforms, And Their Impact

Drug Controls, Laws and Reforms, and Their Impact

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Decriminalisation or legalisation: injecting evidence in the drug law reform debate

Professor & Specialist in Drug Policy, UNSW Sydney

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Alison Ritter receives funding from the NHMRC, the ARC and The Colonial Foundation Trust. She was a participant in the Australia 21 Roundtable held in January, 2012.

UNSW Sydney provides funding as a member of The Conversation AU.

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We should all be concerned about our laws on illegal drugs because they affect all of us – people who use drugs; who have family members using drugs; health professionals seeing people for drug-related problems; ambulance and police officers in the front line of drug harms; and all of us who pay high insurance premiums because drug-related crime is extensive.

Drug-related offences also take up the lion’s share of the work of police, courts and prisons. But what can we do? Some people feel that we should legalise drugs – treat them like alcohol and tobacco, as regulated products. And legalisation doesn’t necessarily need to apply for every illegal drug.

Why legalise?

One of the arguments for legalisation is that it would eliminate (or at least significantly reduce) the illegal black market and criminal networks associated with the drug trade. Other arguments include moving the problem away from police and the criminal justice system and concentrating responses within health.

Governments could accrue taxation revenue from illegal drugs as they currently do from gambling, alcohol and tobacco. A regulated government monopoly could secure direct income; our research suggests this may be as high as $600 million a year for a regulated cannabis market in New South Wales.

The strongest argument against legalisation is that it would result in significant increases in drug use. We know that currently legal drugs, such as alcohol and tobacco, are widely consumed and associated with an extensive economic burden to society – including hospital admissions, alcoholism treatment programs and public nuisance. So why create an environment where this may also come to pass for currently illegal drugs?

The moral argument against legalisation suggests the use of illegal drugs is amoral, anti-social and otherwise not acceptable in today’s society. The concern is that legalisation would “send the wrong message”.

Unfortunately, there’s no direct research evidence on legalisation because no country has legalised drugs yet. But suppositions can be made about the extent of cost-savings to society.

Indeed, some of our research on a regulated legal cannabis market suggests that there may not be the significant savings under a legalisation regime that some commentators have argued. But these are hypothetical exercises.

• Decriminalisation

An alternative to legalisation is decriminalisation. Experts don’t agree on the terminology and there’s much confusion. But, in essence, decriminalisation refers to a reduction of legal penalties. This can be done either by changing them to civil penalties, such as fines, or by diverting drug use offenders away from a criminal conviction and into education or treatment options (also known as “diversion”).

Decriminalisation largely applies to drug use and possession offences, not to the sale or supply of drugs. Arguments in favour of decriminalisation include its focus on drug users rather than drug suppliers. The idea is to provide users with a more humane and sensible response to their drug use.

Decriminalisation has the potential to reduce the burden on police and the criminal justice system. It also removes the negative consequences (including stigma) associated with criminal convictions for drug use.

One argument against decriminalisation is that it doesn’t address the black market and criminal networks of drug selling. There are also concerns that it may lead to increased drug use but this assumes that current criminal penalties operate as a deterrent for some people.

The moral arguments noted above also apply to decriminalisation – lesser penalties may suggest that society approves of drug use.

Many countries, including Australia, have decriminalised cannabis use: measures include providing diversion programs (all Australian states and territories), and moving from criminal penalties to civil penalties (such as fines in South Australia, Australian Capital Territory and the Northern Territory).

Our team’s research on Portugal suggests that drug use rates don’t rise under decriminalisation, and there are measurable savings to the criminal justice system.

In Australia also, there hasn’t been a rise in cannabis use rates despite states and territories introducing civil penalties for users. And research on diverting drug use offenders away from a criminal conviction and into treatment has shown that these individuals are just as likely to succeed in treatment as those who attend voluntarily.

At the same time, research has also noted a negative side effect to the way in which decriminalisation currently operates in Australia – “net widening” - whereby more people are swept up into the criminal justice system than would have occurred otherwise under full prohibition because discretion by police is less likely and/or they do not fulfil their obligations.

Despite the largely supportive evidence base, politicians appear reluctant to proceed along the decriminalisation path. Some commentators have speculated that this is because of public opinion – decriminalisation is regarded as an unpopular policy choice .

But public opinion is largely in support of decriminalisation, where it concerns cannabis (though not decriminalisation for other illegal drugs). In the last national survey , more than 80% of Australians supported decriminalisation options for cannabis. The other reason for equivocal policy support, I believe, is a lack of clarity about the issues.

There’s poor understanding about the different models of decriminalisation and some basic confusion exists. Many people equate decriminalisation with legalisation, but as detailed above, they are very different in policy, intent and action.

Decriminalisation is also sometimes incorrectly confused with harm reduction services, such as injecting centres or prescribed heroin programs.

The Australia21 Report released last week to stimulate informed public debate is an important step foward. In order for the debate to progress, we need clarity of terms, and dispassionate presentation of what evidence we have. Every policy has both risks and benefits and we need to talk about these.

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How will drug legalization affect America's communities of color?

Despite electoral successes, it remains unclear how the new measures will affect those who have been disproportionately targeted in the war on drugs

From the Pacific Northwest to the deep south, drug legalization won big nationwide on election day in America.

Under the first state law of its kind, people in Oregon soon won’t be arrested for possessing small amounts of drugs including heroin, meth and cocaine. In New Jersey, Arizona, South Dakota and Montana, voters joined 11 other states and the District of Columbia in legalizing recreational marijuana. Washington DC passed an initiative to make mushrooms and other natural psychedelics the lowest possible enforcement priority. Even Mississippi legalized medical marijuana.

After months of global protests over racism in policing, advocates behind many of these campaigns focused their messaging on racial disparities in drug-law enforcement. In New Jersey, a social media ad explaining how a marijuana arrest could ruin someone’s life centered images of young Black men and women. Activists in Oregon pointed to a statewide study that found drug convictions for Black and Native people would drop by nearly 95% under the state’s decriminalization law.

Yet despite these electoral successes, it remains unclear what effect the new measures will have for communities of color, who have long been disproportionately targeted in the war on drugs. Even as many states move toward legalization, drug-related violations remain the most frequent cause for arrest in the US. Nearly 40% of those arrests are for marijuana possession alone, according to federal data from 2018. Black people make up 27% of drug arrests, but only 13% of the country.

Even in states that have already enacted more lax drug laws, racial disparities in enforcement didn’t disappear. An April study from the ACLU found that “in every state that has legalized or decriminalized marijuana possession, Black people are still more likely to be arrested for possession than white people.” Being caught with large amounts of marijuana, selling it, using it in a school zone, or underage use is still illegal in states that have legalized. In states like Maine and Vermont, according to the ACLU, racial disparities in weed arrests worsened after legalization passed. Disparities improved in California and Nevada.

Some opponents of legalization say this increase in arrests is the result of the continued criminalization of black markets that still exist outside of the heavily regulated legal market. And they believe the potential for more widespread drug abuse under legalization, in the form of crimes like DUIs, can lead to more interactions with police – especially for people of color.

Kevin Sabet, a former White House Office of National Drug Control Policy adviser, thinks that if the goal is to end racial disparities, states should continue focusing on decriminalization. “It’s a false dichotomy to think that you either have to arrest someone and lock them up, or you need to be in bed with big tobacco and have edibles,” he said. “Oregon already had a decent system for referring drug users [from jail time].”

But even if people aren’t serving long sentences for simple drug possession, the impact of an arrest or a criminal conviction can follow them for years, legalization supporters say. And for repeat offenders, a drug conviction can mean a longer sentence for any future offense.

“They own you after that,” said Bobby Byrd, a volunteer with Yes on 110 in Oregon who struggled to find a place to live, get promoted, and get licensed to become a drug counselor because of his felony cocaine conviction. “People need help, not punishment. Punishment didn’t help me; it just slowed me down in my life and made me have to work 20 times harder.”

In South Dakota, which legalized marijuana last week, weed arrests have increased significantly since 2007, and the racial disparities for Indigenous people are especially stark. Native Americans are 10% of the state population, but were nearly 20% of marijuana possession arrests in 2018. They are nearly a third of the state prison population.

Campaign organizers for decriminalization say they’ll have to stay vigilant against the over-policing of communities of color. “The reality is that systems of oppression always find different ways of incarcerating Black and Brown folks,” said Kayse Jama, executive director of Unite Oregon, a social justice organization. “I think [the new law] is a good step forward; it’s one tool we want to remove from their toolbox. But we also understand that [law enforcement] will continue to target our community.”

Jama also noted the importance of decriminalization for immigrants, who will be less likely to face deportation or other federal immigration consequences over state-level drug crimes. So far in fiscal year 2020, over 600 people have been deported from the US, whose most serious conviction was marijuana possession.

There’s also the question of whether Black communities can profit from the cannabis industry in states legalizing for the first time. Many states prohibit people with felony convictions from working for or owning dispensaries – convictions that are disproportionately saddled on people of color.

Crucial to undoing this dynamic is ensuring that people who have already been prosecuted for marijuana can be released from jail or expunge their record. While expungement was not part of the initial ballot proposal in South Dakota, Melissa Mentele, executive director of New Approach South Dakota, said her group would push for such a policy through the state legislature.

“Expungement is everything,” Mentele said. “It’s not just passing a law – you have people’s lives in your hands.”

Organizers in Oregon also said they planned on addressing expungement and sentencing reductions in the upcoming legislative session. At least 15 states have passed laws making it easier to wipe marijuana-related crimes from people’s records.

Applying the new law retroactively could be especially significant in New Jersey, which has some of the highest arrest rates for marijiuana – locking up an average of more than 600 people every week in 2019 for pot sales and possession.

But in a state where the economic impact of a new legal weed industry could be as high as $6bn , it has been a challenge to put racial justice at the center of the conversation when some supporters of legalization see it as either a new business opportunity or tax revenue generator.

“In 2014, we saw a version of a bill come through that didn’t even have the word expungement in it,” said Amol Sinha, the campaign chairman of NJ CAN 2020, which backed the new measure, and the executive director of the American Civil Liberties Union of New Jersey.

After a 2019 bill failed to pass the New Jersey state senate, the question to amend the constitution and legalize weed was passed to the voters. The ACLU led the campaign for the ballot measure, spending more than $300,000 . “It was a huge, strategic investment,” said Sinha. “We led with racial justice every step of the way … And that is what resonated with voters.”

Now it’s up to legislators to write the law, and it remains to be seen how much of the racial equity message will be baked into the new legislation. But Assemblyman Jamel Holley of district 20, a Democrat who was instrumental in writing the old marijuana bill and is helping shepherd the new one, said he is committed to delivering upon the demands of the voters.

“[We can’t] have big conglomerates take over this [marijuana] industry, but at the same time have individuals who look like me have a record and can’t get a job or housing,” said Holley, who is Black. “My sole focus is that we repair the harms of the past.”

Before the ballot measure had even passed, Holley called for the state to immediately dismiss all marijuana-related court cases, suspend all marijuana arrests, and implement an expedited expungement process.

These kinds of actions illustrate that politicians are catching up to voters in seeing legalization as a racial justice issue, not just a revenue question, said Alex Vitale, author of The End of Policing and a sociology professor at Brooklyn College.

“One thing we’ve seen from the measures that have passed and the exit polling data is that the electorate is more progressive than the candidates,” Vitale said. “The American public seems very open to a total rethink on the drug war and economic justice.”

This article was published in partnership with the Marshall Project , a nonprofit news organization covering the US criminal justice system. Sign up for their newsletter , or follow the Marshall Project on Facebook or Twitter

• US elections 2020
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Essay on Drug Laws

Write an essay of 1,000-1,250 words explaining the impact of social norms and shifting morality specifically on drug control legislation.

How did shifting morality (to include media coverage/public moral panic) affect the nation’s response to drug control between the passing of the Controlled Substances Act of 1970 and the “War on Drugs” started by the Nixon administration. Why do you think the nation’s opioid abuse and overdose is at historically high levels, yet marijuana has been legalized for recreational use in eight states? How might shifting societal values have influenced this trend? Be sure to cite three to five relevant scholarly sources in support of your content. Use only sources found at the GCU Library, government websites or those provided in Class Resources.

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Oregon Is Recriminalizing Drugs. Here’s What Portland Learned.

Oregon’s governor has signed a measure to reimpose criminal penalties for hard drugs. Mayor Ted Wheeler of Portland talks about why the experiment “failed.”

By Mike Baker

Reporting from Portland, Ore.

When Oregon embarked on a landmark plan three years ago to decriminalize hard drugs , it wagered that a focus on treatment over punishment would create a new model for drug policy around the country.

But after a deluge of overdose deaths and frequent chaos in the streets of Portland, Gov. Tina Kotek signed into law on Monday a measure to restore criminal penalties for drug possession . It brought to an end a key portion of one of the nation’s most ambitious attempts to find alternatives other than jail for drug users, embodied in a 2020 voter initiative known as Measure 110 .

The rollback has supporters among a wide range of public officials, including Mayor Ted Wheeler of Portland, who found himself presiding over a series of crises since taking office in 2016. They included surging unsheltered homelessness, turbulent street protests, an exodus of downtown businesses, record numbers of homicides , the rapid spread of fentanyl and soaring overdose deaths .

Over the past year, Mr. Wheeler has set out to restore order. He has battled in court to ban daytime camping and tried to establish mass shelter locations (known in Portland as TASS sites) for those without housing. After initially supporting budget cuts to the police department , he has pushed to increase the law enforcement presence in the city and to crack down on crime.

And he concluded that it was time to restore criminal penalties for hard drug possession. Under the new law, people caught with small amounts of drugs like fentanyl and methamphetamine could face up to 180 days in jail, although lawmakers also built in a series of offramps that allow people in many cases to get treatment instead of confinement.

Mr. Wheeler sat down with The New York Times recently to discuss the shift on drug policy and his city’s future. Here are excerpts from the interview, edited and condensed for length and clarity.

There’s concern that bringing back criminal penalties is going back to the war on drugs. Is that what’s happening?

The war on drugs didn’t work. And so I hope the answer to that question is ‘no.’ And I hope this isn’t an excuse for people to turn their backs on the hard work of building a mental health system. We’re doing that, and we’re doing it at the very local level. At our TASS sites, we actually went out and we contracted at the municipal level with service providers who can provide basic behavioral health, substance-use disorder, domestic-violence treatment, job training. We’re creating those pathways.

So we appreciate that the legislature took the steps to return law enforcement and public safety tools to our first responders. I think that was necessary. But it’s also necessary to do the hard work to build the behavioral health infrastructure that was lacking.

When you look back to 2020, when Measure 110 passed, you have pretty wide support in Oregon. In Portland, three-quarters of voters in this area approved it. I’m curious how excited you were at the time about this new path that was emerging.

I was cautiously optimistic. I’ve been around enough to know that it’s always in the implementation.

Where do you think things most went wrong with the measure?

There’s no question that the state botched the implementation. And as I say, the timing couldn’t have been worse. In terms of the botched implementation: To decriminalize the use of drugs before you actually had the treatment services in place was obviously a huge mistake.

With the benefit of hindsight, the way that should have been structured is that it would create the mechanism for funding. The state would build up its behavioral health services, and when it reached a certain threshold, then they would decriminalize. It shouldn’t have gone the other way around.

The truth is that addiction rates and overdose rates skyrocketed. I personally do not attribute all of that to the passage of Measure 110. I think you can see national trends that would suggest that it wasn’t all ballot Measure 110, but it was very easy for the public to draw a line between the passage of Measure 110, the decriminalization of hard drugs, the increase in addiction and the increase in overdoses — and criminal activity associated with drugs.

Jordan Gale for The New York Times

You’ve said that you’ve been concerned about the future viability of this city . What does a worst-case scenario look like to you?

A worst-case scenario is a city where you don’t have laws that can be enforced. You don’t have alternative treatment for those who are ready to be treated. And you lose the public’s trust in your local institutions of democracy. That’s when things start to unwind. We’re not there. And I will tell you, from where I was sitting four years ago today, night and day difference. I’m very optimistic about the future of this city.

I hear your optimism.

I can see it. I mean, the city looks much better. Foot traffic is way up. Criminal activity is way down. With the opening of our TASS sites, with the expansion of our services at our safe-rest villages, we have a thousand new shelter beds we didn’t have even a year ago. Things have improved.

At the same time, in relatively recent polling, I think 81 percent said they feel unsafe going downtown in Portland at night . Are they wrong to feel that way?

I would never tell anybody they’re wrong to feel unsafe. If you feel unsafe, you feel unsafe. And that is your prerogative. What I would say is, objectively, crime rates are way down .

I was looking back when you first ran for office in 2015. One of your big messages was trying to deal with this nexus of homelessness and mental health issues and addiction. You had vowed at the time to eliminate unsheltered homelessness by 2018 . What went wrong?

Well, first of all, I’m not a great predictor of the future, it turns out. I don’t think anybody in 2015 could have possibly imagined where we would be today, as a city, as a state, as a nation. In 2015, P2P meth didn’t exist. Fentanyl didn’t exist. We hadn’t seen the explosion in the homeless population that we saw, particularly during the pandemic, but also leading up to the pandemic. What happened there, I think, honestly, is the long-term decisions we had made as a state to not invest in behavioral health, to not invest in treatment services, came home to roost as all of these crises hit simultaneously during Covid.

Do you look at yourself and say, “I have blame in this?”

I think we all have blame in this. Of course. We have somewhat reaped what we have sown. And I don’t just mean here in Portland, Oregon. I mean as a nation. Our nation has been very slow to accept behavioral health as an important issue. It’s starting to happen. It’s happening with particularly a younger generation being more willing to talk about it openly.

Along with this rollback of Measure 110, across the country there’s been a shift toward more conservative policies on policing and crime and drug policy. What do you think is motivating that shift?

People are exhausted from feeling like they’re under siege. They want order restored to their environment. And that makes perfect sense to me. These are very dislocating times. These are uncertain times for people economically, socially, in terms of the environment. There are so many existential threats. I mean, even despotism is seeming to grow worldwide. These are very uncertain times.

And you see it particularly amongst young people. I feel it. I think other people feel it, too. And so they have a minimum expectation that where they live is an orderly, safe, secure, prosperous place to be. And if they don’t see it, that is unsettling. They need to have that.

For other states or cities that are thinking about drug decriminalization — it might not be this year, maybe it’s down the line — what would be your guidance?

The treatment infrastructure has to be in place first.

Do you think there is a future where decriminalization could happen again? Or have we learned some other lesson about hard drugs in society?

I do believe there is a future where decriminalization in favor of treatment could happen, but it can’t happen if you don’t have the treatment, and that seems self-evident. There’s no question that what Oregon did was a bold experiment, and it failed. Let’s just be honest about that. It was botched in terms of the implementation. The timing was wrong, and frankly, the politics were wrong.

Going forward, could this experiment happen again? I don’t think anybody will completely decriminalize the use of drugs. I wouldn’t support it, personally, but the piece about providing enough behavioral health services is critically important. And again, in this country, we haven’t done that.

Mike Baker is a national reporter for The Times, based in Seattle. More about Mike Baker

Oregon Gov. signs bill reintroducing criminal penalties for drug possession: What to know

Oregon Governor Tina Kotek signed a bill into law that recriminalizes the possession of small amounts of drugs on Monday.

House Bill 4002, ends the first-in-the-nation drug decriminalization law that was enacted three years ago . The new measure will go into effect this fall, the Statesman Journal , part of the USA TODAY Network reported.

Starting Sept. 1, Class E violations — created by Measure 110, which eliminated criminal penalties for possession of small amounts of illicit drugs — will be repealed under the new law. Instead, a person with small amounts of illicit drugs will face a new “drug enforcement misdemeanor."

Decriminalization: A groundbreaking drug law is scrapped in Oregon. What does that mean for decriminalization?

What does it mean to decriminalize drugs?

The American Pharmacists Association’s policy arm last year  endorsed decriminalization  as a public health measure. Decriminalization is the removal of criminal penalties and prison sentences for the simple use and possession of drugs, while not legalizing or authorizing either. 

“A public health approach is to decriminalize possession and use of substances and to avoid a punitive approach, because it hasn't worked. The drug war has failed, and we need other approaches,” said Bratberg, who helped co-author the APhA’s position. 

When did Oregon decriminalize drugs?

In 2020, 58% of voters in Oregon passed a ballot measure to decriminalize possession of small amounts of illicit drugs and invest in treatment and recovery efforts. The law went into effect in 2021. Measure 110 did not legalize drugs, but it removed prison sentences and imposed $100 fines that could be eliminated if users contacted a hotline to undergo addiction screening.

In the years since, the measure prevented the arrests of thousands of people, said Kassandra Frederique, the executive director of the Drug Policy Alliance, a national organization that advocates for the decriminalization of drugs and backed Measure 110.

“Research is consistently showing that (for) people who are incarcerated in jails and prisons, overdose has gone up substantially. And the fact that when people leave jails and prisons, the likelihood of overdose deaths also goes up substantially in comparison to the general population,” Frederique said.

How will the new law be implemented?

The bill passed with bipartisan support as drug overdose deaths in the state continued to rise. Between 2019 and the 12-month period ending June 30, 2023, overdose deaths from synthetic opioids increased 13-fold from 84 deaths to more than 1,100 in the state.

If a county offers a deflection or diversion program and a prosecutor uses it, the individual could remain on probation for 18 months. Probation violations could result in a 30-day jail sanction and if probation is revoked, the individual could be ordered to a maximum of 180 days in jail.

Of Oregon's 36 counties, 23 had signed "letters of commitment" to establish and offer deflection programs under HB4002.

Kotek's signature on the legislation  came with a letter  to Senate President Rob Wagner, D-Lake Oswego and House Speaker Julie Fahey, D-Eugene, to address remaining concerns about implementing the legislation.

She said all will need to commit to "deep coordination" for the deflection programs and bill to work.

During testimony at the legislature, the Oregon Public Defense Commission said it would need to hire an additional 39 full-time public defenders to provide the representation needed for the estimated new cases under the bill. As of Monday, there were  2,873 people currently unrepresented in the state.

EssayEmpire

Drug enforcement essay.

The United States has not always prohibited the use, sale, manufacturing, and distribution of psychoactive drugs. Rather, the enforcement of drug prohibition, both domestically and abroad, has changed over the past 100 years depending on state and federal legislation and public opinion. And, it is still changing. Americans are not unified on the policies surrounding the use of drugs (e.g., many libertarians seek the legalization of all drugs). Acceptable and unacceptable or legal and illegal drugs continue to change (e.g., marijuana legislation). As a result, the enforcement of U.S. drug prohibition is often deemed arbitrary and met with hostility.

Drugs are not inherently classified as “good” or “bad.” The media, religion, politics, and even peers can shape ideas about drugs and their potential harms. Culture, customs, norms, beliefs, and moral ideologies influence the acceptance and use of psychoactive drugs. For example, in many cultures, the use of psychoactive substances— alcohol (wine), peyote, or marijuana (ganja)—is a cultural ritual, a right, and an expression of liberty. Thus, laws and the enforcement of those laws that arbitrarily define some substances as legal (alcohol) and their users as acceptable (binge drinkers) and others as illicit (marijuana) and users as deplorable (potheads) are seen by many as unethical. Nonetheless, these laws have heavily influenced both the positive and negative treatment of drug users. For example, users of illicit drugs in the United States—when caught by law enforcement—can be denied human rights (e.g., voting) and basic needs such as welfare, health care, and shelter. The restrictions placed on human rights have been exacerbated by the enforcement of drug policies.

Many of the current U.S. drug policies find their roots in the Federal Pure Food and Drug Act of 1906 and the Harrison Act of 1914. The U.S. federal government has since implemented over 20 different laws to reduce the use, sale, manufacturing, and distribution of these drugs. The current drug schedules (i.e., the categorization of “good” and “bad” drugs) were only created in 1970 under the Controlled Substances Act. However, it was not until the 1980s and 1990s under Presidents Ronald Reagan, George H. W. Bush, and Bill Clinton that the enforcement of drug laws and drug prohibition exploded.

Drug enforcement over the past 30 years has resulted in the mass incarceration of, primarily, African American and Hispanic, nonviolent drug offenders. Many blame the animosity that exists between both African American and Hispanic communities and police officers on the injustices surrounding drug law enforcement. Such animosity has been exacerbated by the expansion of police powers and the limits on constitutional rights (e.g., the Fourth Amendment), which have encouraged corruption.

Despite the harms of drug enforcement, the United States primarily relies on law enforcement and the criminal justice system to alleviate drug problems. Little to no attention has been placed on understanding drug effects and reducing harms. Even fewer resources are allocated to providing accurate information on drugs and methods of safe and controlled drug use.

In the beginning of the 20th century, the United States began to establish legal sanctions aimed at psychoactive drugs. Up to this point, no restrictions existed that limited the usage of psychoactive drugs. The idea that psychoactive drugs should be regulated and legally sanctioned arose with medical advances in the pharmaceutical sciences. Many psychoactive drugs were essential tools for doctors and scientists in fighting disease and improving overall well-being—but unregulated use could have been very harmful. Thus, legal restrictions were an effort to control the use of psychoactive drugs for reasons other than medical needs (this remains an important legislative goal).

In 1906, the U.S. Pure Food and Drug Act (PFDA) passed as an attempt to regulate the sale and manufacturing of psychoactive drugs. Under this act, the Food and Drug Administration (FDA) was created to monitor the food and drug trade and ensure that products sold were fit for human consumption. For example, the FDA sought to prohibit potentially harmful products such as Coca-Cola (which contained cocaine). Many companies were (and continue to be) forced to alter the substances and chemicals in their food and drug products. The PDFA has been amended since 1906, first under the Food, Drug and Cosmetic Act of 1938 (requiring labels) and again under the Kefauver-Harris Amendments of 1962 (requiring proof of a drug’s efficacy).

The United States was the catalyst for the first international effort, the 1912 Hague Convention, to control psychoactive drugs. There, nations met to discuss the increasing problems with the drug market and the need to control substances domestically and abroad. Upon return, the United States passed the Harrison Narcotics Act of 1914, which labeled the sale and use of certain substances— cocaine and opium—as illegal. The act’s central intent was to control the use of cocaine (particularly among African Americans) and to stop the importation of opiates (used by the Chinese) to the United States. Prior to the Harrison Act, many easily accessed and regularly used these drugs, and after this law, the demand for drugs remained. Many were forced to obtain them on the black market, where llicit drug dealing and trafficking expanded to new heights. Now, those who were once only addicts were considered criminals, and drug enforcement shifted.

After opiates and cocaine, the United States attempted to eradicate alcohol consumption. In 1917, the Eighteenth Amendment to the U.S. Constitution banned the sale, supply, and manufacturing of alcohol. The enforcement of alcohol prohibition occurred under the Volstead Act, which prohibited intoxicating beverages (containing more than 0.5 percent alcohol). Enforcing alcohol prohibition and controlling this drug market was both unsuccessful and violent. Each state did not equally enforce prohibition, and because the possession of alcohol was permissible, many people were able to obtain it for religious and medical reasons. Sixteen years later (1933), the Twenty-First Amendment ended the prohibition of alcohol.

The Federal Bureau of Narcotics (FBN) was created in 1930 to enforce alcohol prohibition, but it also sought to address a new scourge— cannabis (marijuana). Marijuana entered the spotlight under the later discredited notions that marijuana could be linked to crime, violence, and suicide. This negative propaganda led to the 1932 Uniform State Narcotic Act (that only nine states adopted), which allowed law enforcement to treat marijuana as if it were a narcotic. In 1937, the Marihuana Tax Act was implemented nationwide, which imposed a tax on marijuana sales and essentially criminalized marijuana.

Drug control and enforcement efforts expanded under the Narcotic Control Act of 1956, in which strict punishments and penalties for drug offenses were created. The act eliminated probation as a possible sentence, and parole was only granted to those with a first-time drug offense. This contributed to the mass incarceration of drug users and people of color.

During the 1960s, drug use seemed to become more prevalent among white middle-class youth, who were smoking marijuana and consuming hallucinogens. Also, many Vietnam war veterans were returning with heroin and alcohol addictions. As a result, the 1970 Controlled Substances Act was passed, providing a drug classification system (i.e., the Federal Schedule of Controlled Substances). It categorized the substances into tiers or schedules intended to be based on medical value, liability as it relates to abuse and addiction, and possible harm to the user. In practice, however, politics has played a more important role than science in determining a substance’s schedule and the enforcement of those schedules. Nonetheless, this was an important step in criminalizing drugs and establishing drug control policies in the United States and abroad.

Schedule I, substances with no medical value and the highest potential for addiction and abuse, includes GHB, heroin, peyote, LSD, and marijuana. In 1970, many U.S. states also decriminalized marijuana under the direction of a U.S. Senate committee report (the Schaffer Report). Schedule II includes those drugs that have medical value, and use is permitted under certain circumstances, but potential for abuse and addiction is less than that of Schedule I; Ritalin, Adderral, Codeine, methamphetamine, cocaine, and morphine are scheduled here. Schedule III drugs also have a potential for abuse (lower than II), but have fewer restrictions and are acceptable medications. Testosterone, anabolic steroids, and ketamine are some of the Schedule III drugs. Schedule IV drugs are widely prescribed by physicians and have minimal potential of abuse and a low risk for dependence. Some Schedule IV drugs are Ambien, Valium, and Xanax. Schedule V drugs have the lowest potential for abuse and dependence and are mostly preparations that contain small doses of narcotics such as Parepectolin, Lyrica, and Lomotil.

The primary goals of drug policies and the enforcement of drug laws have been to reduce and deter the use and sale of drugs. Despite the

$23 billion allocated annually, 75 percent of which is given to law enforcement (local, state, federal, international) agencies, and the $100 billion to fund militarized units and special weapons and tactics (SWAT) teams to fight the War on Drugs, these policies have not reached their goals. Most argue that the problem can be attributed to law enforcement’s focus on drug possession and other low-level crimes instead of trafficking. For example, in New York City, drug possession arrests accounted for 88 percent of all arrests. In fact, arrests for trafficking were four times less than the number of arrests for drug possession, and 44 percent of all possession arrests were for marijuana with smoking marijuana, in public as the most common misdemeanor.

Law enforcement officers, who are often evaluated by number of arrests, have targeted street-level drug sales and use, which tend to occur in open-air markets. These markets are much easier to identify and investigate than are higher-level drug operations. They are also more likely to be operating in communities with high concentrations of people of color. White drug users and dealers often hide in concealed locations in middle-class neighborhoods (e.g., basements) and university dormitories. Consequently, blacks and Hispanics are more likely to be arrested for drug crimes than are whites despite the fact that whites neither use nor sell drugs at a higher rate. Blacks, who compose 13 percent of the total U.S. population, represent 31 percent of all arrests for drug offenses. In contrast, whites compose 67 percent of all drug offense arrests and represent more than two-thirds of the population (72 percent). In Seattle, 67 percent of those arrested for the delivery of a serious drug were black even though blacks only compose 8 percent of Seattle’s population.

Not only are blacks more likely than whites to be arrested for drug crimes but they are also more likely to be convicted and incarcerated for longer periods of time. Most of the black inmates—in some states up to 90 percent—are incarcerated for drug offenses. Blacks, more than any other race or ethnicity, are incarcerated for marijuana offenses— particularly in California. Blacks are seven times more likely than Hispanics, 13 times more likely than whites, and 20 times more likely than Asians to be incarcerated for a marijuana offense.

Drug enforcement and the consequences of arrest, conviction, and incarceration have contributed to the demise of inner-city neighborhoods. The enforcement of drug laws has succeeded in arresting, convicting, and incarcerating many nonviolent drug offenders who will have few opportunities upon return to their communities. In the United States, convicted drug offenders can be denied basic human rights, such as health care and welfare. They can be evicted from their rental residence, be denied employment in various industries, be fired from their job, be denied financial aid for a college/university education, be denied food stamps, lose custody of their children, have their voting rights revoked, and/or become ineligible for government housing. This has significant negative effects on their life chances and stifles the growth and advancement of their families and communities.

The enforcement of drug laws has not only harmed communities of color, but it has also harmed law enforcement. Police corruption in the name of the War on Drugs can be found in all levels of law enforcement (federal, state, local). Most commonly, law enforcement officers abuse their power and manipulate individuals into consenting to an otherwise illegal search and seizure (i.e., stop and frisk). In New York City, in 2011 blacks and Hispanics made up 85 percent of all the stop and frisks (only 6 percent of the stops resulted in an arrest). Planting drugs and stealing money are among the most widespread accusations against law enforcement officers who are in charge of the operations. This has resulted in many wrongful convictions and contributed to the racial disparities in the criminal justice system.

Police corruption in drug enforcement was most evident under alcohol prohibition. Many law enforcement officers provided alcohol to individuals in return for bribes. Some became bootleggers to take advantage of the money circulating in this underground economy. Others helped facilitate bootlegging operations.

One of the most notorious police corruption cases occurred in 1999 during an operation led by the U.S. Drug Enforcement Agency (DEA) on cocaine trafficking in Tulia, Texas. There, DEA Agent Tom Coleman, who failed to provide money, drugs, eyewitness testimonies, audio/video from police surveillance, or any corroborating evidence, arrested 15 percent of all blacks in Tulia. Blacks accounted for 85 percent of those arrested. Despite the lack of evidence, and the contradictory testimonies when the defendants either took the stand or were questioned by police, an all-white jury convicted and sentenced the black defendants from 20 to 314 years in prison.

The use of DEA task forces to enforce drug laws has been growing in the United States. In 2009, the DEA State and Local Task Force Program deployed 381 task forces. States and other U.S. territories also constructed their own task forces. In Los Angeles, SWAT teams were created and used throughout the 1980s to target drug possession crimes and other low-level offenses up until the 1980s. By the mid-2000s, 50,000 teams were used to serve search warrants for drugs and for drug raids. These teams even used aerial drones. For example, Austin, Texas, police used a drone to inspect the home of a suspect in 2009. While one would expect that drug enforcement could benefit from militarized task forces, especially those composed of personnel from different agencies, such task forces have neither reduced the number of drug crimes nor addressed enforcement corruption.

Police corruption has been encouraged through the Comprehensive Crime Control Act of 1984 and the Anti-Drug Abuse Act of 1986, which permit the confiscation of assets believed to be obtained with drug money. Any money the police confiscate, or money made from assets sold in police auctions, can be used to finance police operations and equipment. Police are even able to keep assets when charges are not filed (which occurs in 80 percent of the cases).

Drug policies and drug enforcement rarely consider cultural norms when structuring drug enforcement. Prohibiting a drug can be seen as a method to control a dangerous substance and protect the children, but in one culture it could be seen as a violation of civil liberties. Furthermore, because many legal substances have dangerous side effects and can be addictive, many argue that both historically and currently, drug enforcement is political and merely a way to control particular groups. For example, smoking marijuana has not been linked to any deaths, while the Centers for Disease Control and Prevention estimates that one out of every five deaths in the United States is attributed to smoking cigarettes.

Moreover, many people in the coastal areas of Colombia cultivate and use coca, from which cocaine comes, as medicine and as a stimulant. However, U.S. international drug enforcement efforts attempt to eradicate coca crops. The Latin American Commission on Drugs and Democracy has criticized U.S. drug enforcement efforts as repressive, encouraging the development of organized crime, and contributing to the violence in Latin America. The policies marginalize those countries and impede their ability to establish sustaining economies.

Illicit drug enforcement has greater links to violence than does illicit drug use. Some legal substances have stronger correlations to violence than illicit drugs. For example, alcohol is implicated in many crimes such as drunk driving, domestic violence, and aggravated assaults. Yet, less drug enforcement occurs around the manufacturing and consumption of alcohol.

Drug enforcement in the United States has grown and shifted in (unsuccessful) attempts to control the manufacturing, sale, and use of psychoactive drugs. Unintended consequences of drug enforcement have resulted, including law enforcement corruption; racial disparities in arrests, sentencing, and incarceration; the collapse of inner-city neighborhoods; and the marginalization of Latin American nations. Thus, many claim that drug enforcement is arbitrary, harmful, and unethical.

Bibliography:

• Alexander, Michelle. The New Jim Crow: Mass Incarceration in the Age of Colorblindness. New York: New Press, 2012.
• Centers for Disease Control and Prevention. “Health Effects of Cigarette Smoking.” http://www.cdc.gov/tobacco/data_statistics/fact_sheets/health_effects/effects_cig_smoking (Accessed May 2013).
• Hall, Wayne. “What are the Policy Lessons of National Alcohol Prohibition in the United States, 1920–1933?” Addiction, v.105/4 (2010).
• Mosher, Clayton J. and Scott M. Akins. Drugs and Drug Policy: The Control of Consciousness Alteration. 2nd ed. Thousand Oaks, CA: Sage,
• Musto, David. The American Disease. 3rd ed. New York: Oxford University Press, 1999.
• Robinson, Matthew B. and Renee G. Sherlen. Lies, Damned Lies, and Drug War Statistics: A Critical Analysis of Claims Made by the Office of National Drug Control Policy. Albany: State University of New York Press, 2007.
• Rosen, Winifred and Andrew Weil. From Chocolate to Morphine. New York: Houghton Mifflin, 2004.
• S. Drug Enforcement Administration, “Drug Scheduling.” http://www.justice.gov/dea/druginfo/ds.shtml (Accessed May 2013).
• Youngers, Coletta and Eileen Rosen. Drugs and Democracy in Latin America: The Impact of U.S. Policy. Boulder, CO: Lynne Rienner Publishers,

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