Yes, the drug war really is pretty awful. A response to Charles Lane.

February 25, 2014

Last month, I wrote a response to Washington Post columnist Michael Gerson in which I laid out many (but by no means all) of the harms caused by the modern-era war on drugs. Now Charles Lane, a columnist and editorial writer here at the Post, has responded to my post. You can read Lane’s response in full here.

I’ll go ahead and keep the debate alive by now responding to Lane. I’ll first note that Lane didn’t address the majority of the points I made about the harm caused by the drug war. So I’ll obviously only address those that he did. I’d also point out that my post wasn’t meant to be comprehensive. To give just one example, I didn’t address the harm our drug war has inflicted on Latin America (although I did mention the awful carnage in Mexico), Thailand, or Afghanistan, or how it has undermined our efforts to fight terrorism.

But let’s get to the points Lane does make.

According to federally sponsored surveys that track drug usage, the rate of current-month powder and crack cocaine use dropped by half in the past 10 years. Meth use fell by a third; heroin use has remained flat.

True, marijuana use rose slightly overall — but it fell among 12- to 17-year-olds, a result that even legalizers should applaud since they generally don’t favor allowing minors to smoke.

The timeline here is interesting. I understand why Lane chose it—the National Survey on Drug Use and Health changed its methodology in 2002, making statistics after that year incomparable to those in previous years. But the modern drug war began with the Reagan administration, and most of the more pernicious policies—mandatory minimum sentences, civil asset forfeiture, the proliferation of SWAT teams, and police militarization were passed and implemented from the mid-1980s to the early 1990s. The Monitoring the Future surveys, for example, have comparable data going back to 1991. (They start on page 28 of the linked report.) If we look at drug use in the last 30 days among respondents to those surveys, they show the same similar drops since the early 2000s that Lane mentions. But we also see significant increases in the overall rate of illicit drug use among all age groups since 1991, including among 8th (+35 percent), 10th (+60 percent), and 12th (+72 percent) graders.

File - In this Dec. 5, 2013 file photo, marijuana matures at the Medicine Man dispensary and grow operation in northeast Denver. Colorado voters still support the state law that legalized recreational marijuana, but most believe it is hurting the image of the state, according to a new poll released Monday, Feb. 10, 2014. The Quinnipiac University Poll found that 51 percent of voters overall believe the measure is bad for the state's reputation, while 38 percent see it as a net positive. (AP Photo/Ed Andrieski, file)
Marijuana matures at the Medicine Man dispensary and grow operation in northeast Denver. (AP Photo/Ed Andrieski, file)

Interestingly, over the period Lane cites, marijuana has actually become more available (through legalization for medical use), not less. Public attitudes toward pot use have also relaxed over the last decade. As Lane points out later in his piece, albeit it in a different context, crime over the last decade has dropped. In fact, nearly all social indicators have been moving in the right direction since the mid-1990s. (More on that in a moment.)

So to summarize: Since the harshest policies of the drug war went into effect in the early 1990s, illicit drug use is up, pretty significantly. But over the last decade, pot has become more available, attitudes toward pot are more relaxed, and more adults are smoking the stuff. Yet over that period of time, violent and property crime have dropped, nearly all other social indicators are improving, and adolescent pot use has dropped. (Incredibly, use of pot among those under 18 began dropping in 1996, the same year California became the first state to legalize marijuana for medicinal purposes.) That to me suggests that making pot more available for adults isn’t doing much harm at all.

At the same time, while public attitudes have relaxed, enforcement hasn’t. Arrests for pot have soared, as have the number of highly aggressive, highly volatile police raids on people suspected of breaking the marijuana laws—with predictably tragic consequences. All of which makes a strong argument that the prohibition of pot is doing a lot more damage than ingesting the drug ever could.

It’s true that crack and powder cocaine use has dropped. But cocaine use has fluctuated widely over the last century or so. The same is true of meth. These drugs go in and out of vogue. I suspect that the bad reputations (admittedly aided by government-funded public awareness campaigns) earned by crack and homemade meth have contributed to the decline in use. But the war side of the drug war focuses not on treatment or PR, but on punitive measures aimed at reducing the supply of illicit drugs. Last year, in a study published in the BMJ medical journal, a group of researchers from the U.S. and Canada evaluating government supply-side anti-drug efforts by measuring the purity and cost of heroin, cocaine, and marijuana between 1990 and 2009. Their conclusion:

With few exceptions and despite increasing investments in enforcement-based supply reduction efforts aimed at disrupting global drug supply, illegal drug prices have generally decreased while drug purity has generally increased since 1990. These findings suggest that expanding efforts at controlling the global illegal drug market through law enforcement are failing.

In other words, the drop in use of cocaine in meth has little to do with government efforts to reduce the supply of drugs—also known as the drug war. Those drugs are still as available as ever. It has much more to do with the preferences of people who use illicit drugs. And as Lane himself concedes, there’s ample evidence that people who want to get high have merely turned their attention elsewhere, like prescription drugs.

Back to Lane’s post:

Meanwhile, even as drug prohibition continued, violent crime and property crime fell, dramatically. Not only did the number of murders in the United States decrease from 24,703 in 1991 to 14,612 in 2011 but drug-related murders declined from 1,607 to 505, according to Justice Department statistics. Some 6.5 percent of murders were related to drugs in 1991, but only 3.4 percent were in 2011.

Again, the modern, all-too-literal drug war began in the early 1980s. The homicide rate dipped slightly in the early 1980s, before starting to climb again in 1986 until its peak in 1991. The most likely explanation for this is the crack epidemic. That’s also the likely explanation for the peak in drug-related murders Lane points to in 1991. With a new drug on the market (or at least a new form of an existing drug), dealers fought one another for market share. Yet crack was a product of prohibition, just like bathtub gin or other noxious booze America gulped down in the 1920s.

I don’t know if Lane is specifically crediting the drug war for the drop in violent crime here, or is merely countering the argument that prohibition causes crime by noting that crime has dropped even as drug prohibition has continued. But it’s worth noting that nearly every social indicator began moving in a positive direction in the early 1990s. The rape rate has since fallen by 60 percent. The divorce rate plummeted. And abortion and teen pregnancy rates have dropped through the floor. The government only began tracking hate crimes a little over a decade ago, but those too have been in decline. It seems unlikely that the drug war is responsible for all of this, especially since there was no noticeable shift in drug policy at the time. The more likely explanation is some society-wide shift, such as an aging population, improved standards of living, or even something like less lead in the air and water. If Lane’s point is subtler—that because the drug war coexisted with these trends, it therefore can’t be blamed for causing violence, dysfunction, and so on—that’s difficult to prove one way or the other. It’s at least possible that were it not for the harmful effects of the drug war, these positive trends would have been even more dramatic.

Back to Lane’s post:

The drug arrest rate fell from 142.1 per 100,000 in 1991 to 97.8 per 100,000 in 2011.

The rate Lane is referring to in the first sentence is the arrest rate for sale or distribution. The overall drug arrest rate rose from 399.2 per 100,000 in 1991, to 530.3 per 100,000 in 2010. So while we’ve been arresting about a third fewer serious drug offenders over the last 25 years, we’ve been arresting roughly 50 percent more people for mere possession. (Or having a low enough quantity of drugs that a possession charge can be offered in a plea bargain.)

Yes, blacks were still 3.9 times more likely to be busted for drugs than whites in 2011 — but that ratio was down nearly 50 percent from the one recorded 20 years earlier.

True, but the racial disparity is still about 25 percent higher than it was in 1980, at the start of the modern drug war. And the overall drug arrest rate for blacks is still 250 percent higher than it was in 1980. The arrest rate for blacks for mere possession in 1980 was 341 per 100,000. Today it’s 971.5 per 100,000.

And here’s one more incredible statistic: The overall arrest rate for all crimes in America dropped 25 percent between 1991 and 2010. That makes some sense, since that’s also the beginning of the drop in violent and property crime. But the arrest rate for drugs over that same period has increased by nearly 35 percent. And as noted, that increase has been driven entirely by arrests for possession, not for manufacture or sale. The gap between black and white arrests may be narrowing, but that’s only because we’ve increased the rate at which we arrest white people for drug possession faster than we’ve increased the rate at which we arrest black people for drug possession. I don’t know that I’d call that an improvement for anyone, white or black.

Marijuana arrests account for a bigger share of drug arrests these days, 44.3 percent in 2011 vs. 22.4 percent in 1991. But when you compare marijuana arrests to actual days of marijuana usage — busts per toke, so to speak — the story’s different. By this measure, “enforcement intensity” fell 42 percent between 2007 and 2012, according to drug-policy expert Keith Humphreys of Stanford University.

Some “war.”

This is both an odd metric, and an example of selective boundary-drawing. It’s true that the raw number of marijuana possession arrests peaked in 2006, and has been on a slightly downward trajectory since. There were 15 percent fewer pot arrests in 2012 than in 2007, for example. But that modest decrease came after a massive 20-year increase. If the argument here is that because more people are smoking pot, the average person is slightly less likely to get arrested for possessing marijuana today than in 2007, then yes, it make sense to cite Humphrey’s chart. But Lane isn’t arguing that things are slightly better today for pot smokers than they were in 2007. He’s arguing that drug war critics are exaggerating its harms and understating its benefits. To use this extremely thin slice of drug policy data to sarcastically dismiss those critics with “some ‘war’” is awfully churlish.

When we critics use the word war when referring to drug prohibition, we’re referring to tactics like this:

Or this:

Or this:

Or this:


Back to Lane:

It’s a myth that prisons are full of low-level pot smokers. Less than 1 percent of the state and federal prison population is doing time for pot possession alone; most of these prisoners are dealers who pleaded guilty to possession in return for a lesser sentence, according to the 2012 study “Marijuana Legalization: What Everyone Needs to Know,” published by Oxford University Press.

All true. But as noted in my original post, even an arrest without a conviction can have disruptive effects, particularly on low-income people. A few other points, here.

  • Many states have laws allowing prosecutors to charge a suspect with distribution merely for possessing more than a given quantity of an illicit drug, regardless of whether or not there’s any evidence of drug dealing. This is particularly true of people caught in possession of marijuana plants.
  • One percent of the 2.2 million people currently in state or federal prison is still 22,000 people.
  • My initial post argued that the black markets caused by drug prohibition present an opportunity for people with few prospects otherwise to earn some quick money—that the drug war induces into the drug trade people who might not otherwise have been led into crime. By that measure, as of 2010 (the last year for which I can find available data), there were about 336,000 people in federal or state prison whose most serious offense was a drug crime—that is, a crime to which all parties had consented. (See page 66.)

Back to Lane:

America’s worst new drug-abuse problem involves a legal substance, opioid painkillers, that’s supposedly available only by prescription. OxyContin and other government-approved pills were linked to 15,500 overdose deaths in 2009.

Legalizers might say the opioid epidemic proves, once again, the futility — and hypocrisy — of drug control. But then what’s the point of banning underage use of marijuana, as most pot-legalization statutes do? Washington state’s law threatens a 10-year sentence for selling pot to a minor. Talk about filling prisons with nonviolent drug offenders!

This is a caricature of the argument for legalization. We have laws restricting all sorts of activities for minors because minors aren’t legally capable of consent. Adults, for example, are allowed to have consensual sex with one another. Adults are not allowed to have sex with a minor, even if the minor is willing. Despite the law, some adults still have sex with minors, and some minors still have sex with one another. I wonder if Lane might ask, “What’s the point in banning underage sex, as most legalized-sex states do?”

I suppose we could ban all sex, including sex between consenting adults. We could also legalize all sex, including adult sex with minors. Both proposals are of course ridiculous. The obvious policy is what we have now: We understand that minors aren’t yet able to appreciate risk, or understand the full consequences of an activity like sex. Therefore, they’re unable to legally consent. And therefore, we make some activities off-limits to them that are legal for adults, even knowing that those laws will still occasionally be broken.

As for the rise in prescription drug abuse, yes, part of it is due to addicts taking advantage of wider availability of opioids. But part of it is also the result of a series of misguided federal policies that have sacrificed the well-being of pain patients and the sanctity of the doctor-patient relationship in order to stop people from getting high. Well-intentioned doctors have been fleeing pain treatment altogether, creating an opening for less scrupulous doctors and “pill mills” to fill the void. Incidentally, as the government has cracked down on the availability of pain medication, the addicts are going back to heroin.

And if drug abusers so widely misuse scientifically manufactured opioids, how realistic is it to say, as some legalizers do, that legalization would protect heroin addicts from impurities and overdoses?

It would at least let them be sure of what they’re getting. During alcohol prohibition, deaths and hospitalizations from alcohol poisoning soared, due to the nasty, metal-tainted booze produced by the black market. People still drink themselves to death today on legal, regulated, openly-sold alcohol. That isn’t a convincing argument for returning to prohibition.

I don’t mean to suggest that there are no good arguments for legalizing any currently illicit substance. The case for decriminalizing pot is strong, as long as accompanying limitations on use by minors and other regulations have real teeth.

But let’s discuss the issue on its actual merits — and not pretend that legalization is a panacea for drug abuse, and its related social ills, any more than prohibition was, or is.

I don’t know that anyone is arguing that legalization is a panacea for drug abuse. Nor is anyone arguing that legalization will cure all problems associated with drug use. Personally, I believe that consenting adults should be free to choose what they do and don’t put into their bodies. But even if you don’t agree with that general principle, the argument here is simple: There’s compelling evidence that the efforts to which the government has gone to prevent people from getting high have caused far more harm than any illicit drugs themselves ever could.

Radley Balko blogs about criminal justice, the drug war and civil liberties for The Washington Post. He is the author of the book "Rise of the Warrior Cop: The Militarization of America's Police Forces."
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Radley Balko · February 25, 2014