Carly Tangney-Decker and her husband Jeff Decker want New York State to legalize medical marijuana, to help their 8 month old daughter Mabel Tangney-Decker, who has a rare genetic disorder that causes seizures, at their home on Saturday, Jan. 11, 2013, in Kingston, N.Y.(AP Photo/Philip Kamrass)

Recently, my Washington Post colleague Michael Gerson wrote a column urging conservatives to reject libertarianism. As a libertarian, I do agree with him on one point—the two are fundamentally opposing ideologies. In fact, I don’t even really consider libertarianism part of “the right,” as it is often portrayed. (I also wouldn’t conflate libertarianism with the Tea Party. Yes, there’s some overlap. There are also some sharp contrasts.)

But the part of Gerson’s column I want to take a closer look at is his discussion of the drug war and victimless crimes. Here’s the first relevant passage:

So conservatism is a governing vision that allows for a yellow light: careful, measured public interventions to encourage the health of civil society. There are no simple rules here. Some communities — disproportionately affected by family breakdown, community chaos or damaging economic trends — will need more active help. But government should, as the first resort, set the table for private action and private institutions — creating a context in which civil society can flourish.

This goal has moral and cultural implications. Government has a necessary (if limited) role in reinforcing the social norms and expectations that make the work of civic institutions both possible and easier. Some forms of liberty — say, the freedom to destroy oneself with hard drugs or to exploit other men and women in the sex trade — not only degrade human nature but also damage and undermine families and communities and ultimately deprive the nation of competent, self-governing citizens. (The principle applies, more mildly, to softer drugs. By what governing theory did the citizens of Colorado — surveying the challenges of global economic competition, educational mediocrity and unhealthy lifestyles — decide that the answer is the proliferation of stoners?)

To the extent that conservatives still defend the drug war (and there are fewer and fewer willing to do so), this is usually the way they go about it. Their argument is that drug use enslaves drug users with addiction, and that were drugs to be made legal, we’d all be robbed of the benefits of living in a populace of responsible citizens. Use and addiction would be common, thus shredding the moral fabric (or some other vague metaphor) that binds us all together. These arguments have been rehashed again since the legalization of marijuana in Colorado and Washington. (See also Davids Brooks and Frum.)

I think there’s good evidence that this is wrong on its face. Jacob Sullum’s book Saying Yes: In Defense of Drug Use, for example, presents compelling empirical evidence that the vast, vast majority of people who use drugs—even hard drugs—do so recreationally, don’t become addicts, and inflict little to no harm on those around them. But even if we accept the argument that legalization could lead to widespread use, significantly more addiction, and whatever itinerant harm comes with both, these arguments almost always fail to acknowledge the catastrophic harm inflicted by drug prohibition itself. If we’re truly concerned about policies that “degrade human nature,” “damage and undermine families,” and “deprive the nation of competent, self-governing citizens,” it seems like we should consider not only the effects of illicit drugs themselves, but also the effects of prohibiting them.


Depriving the nation of competent, self-governing citizens . . .

According to a new study published in the journal Crime & Delinquency, “by age 23, 49 percent of black males, 44 percent of Hispanic males and 38 percent of white males have been arrested.” The study was based on surveys conducted between 1997 and 2008. A similar survey released last year found that overall, one in three Americans have been arrested by their 23rd birthday. According to the FBI’s Uniform Crime Reports, in 2012, more people were arrested for drug crimes than any other class of crimes. Moreover, 80 percent of drug arrests were for possession, not for distribution. In New York City alone, police arrested more than 40,000 people for marijuana possession in 2012. That number was actually down from previous years. Many of the hundreds of thousands of New York City pot smokers arrested over the last decade were not the result of smoking the drug in public, but because police tricked them into “displaying” the drug during a stop and frisk. Though possession of under 25 grams of pot isn’t a criminal offense in New York, “public display” of the drug is. And so pot possession remains the number one reason for arrest in New York City. And though blacks, whites, and Latinos use the drug at similar rates, 90 percent of those arrested are black or Latino.

A mere arrest without resulting criminal charges may not seem like a big deal to you — if you haven’t been arrested. Here are researchers Alfred Blumstein and Kiminori Nakamura, writing in the New York Times:

The ubiquity of criminal-background checks and the efficiency of information technology in maintaining those records and making them widely available, have meant that millions of Americans — even those who served probation or parole but were never incarcerated — continue to pay a price long after the crime . . .

More than two-thirds of the states allow hiring and professional-licensing decisions to be made on the basis of an arrest alone . . .

Employers could apply their own judgments around those estimates, but the real problem is the state and local rules — often embedded in statutes — that restrict employment or licensing for the rest of the individual’s life. In New York, former offenders can be forever denied licenses for certain jobs, ranging from beer distributor to real estate broker.

An arrest—particularly a drug-related arrest—can also be used to deny citizenship to immigrants, even if the arrest never results in a criminal charge.

And those are just the consequences of an arrest. We should also look at the effects of a conviction and incarceration. Even a misdemeanor drug conviction can mean up to 2.5 years in jail, depending on the state. It means a bona-fide criminal record, which can limit eligibility for student aid. That of course has a disproportionate effect on the young and poor, who are most likely to need aid to attend college. And as noted, the poor are much more likely to be arrested for these crimes than people in higher income brackets. Blacks and Latinos are much more likely to be arrested and convicted than whites. In some states, a misdemeanor drug conviction can limit or even eliminate the possibility of attending a state college or university. It can get you evicted from public housing. (In fact, the mere accusation, without a conviction, that someone in your household possessed illicit drugs is enough to merit an eviction.) And it can prohibit you from ever owning a firearm.

Felony convictions are of course much worse. In addition to the consequences for a misdemeanor conviction, in many states a felony conviction comes with a ban on a variety of other forms of government assistance, including job training programs. Civic participation? As of 2010, about 6 million Americans couldn’t vote due to felony convictions. Many of those are of course convictions for violent crimes or major property crimes. But many are for relatively low-level drug convictions. In some states, possession of any amount of a drug like heroin or cocaine can bring a felony charge, even when there is no evidence of intent to distribute. Few places make possession of a small amount of marijuana a felony on the first offense, but there are states where a second offense can result in a felony, regardless of quantity.

In 2004, sociologists Bruce Western and Devah Pager sent volunteers out to apply for various jobs. The volunteers listed identical work histories and education backgrounds. But some noted on their applications that they had a prior criminal history. White applicants who admitted to prior incarceration got half as many call-backs as those who did not. Black applicants received only a third as many. Once they find work, former prisoners’ wages fall by 15 percent, annual earnings by 40 percent, and they’re far less likely to increase their annual income over time than those with comparable backgrounds who never went to prison.

It’s undoubtedly true that in some instances drug addiction by itself has “deprive[d] the nation of competent, self-governing citizens.” But there are legions of former drug users who have gone on to lead successful lives, including Nobel laureates, Olympic champions, our last three presidents, Supreme Court justices, and even a few prominent, anti-legalization opinion columnists. They were merely fortunate enough to be of a class, in a place, or of a time where such use didn’t result in arrests and criminal charges that prevented their later success. Those unlucky enough to have been caught—or even merely arrested—can face diminished education opportunities, employment discrimination, significant loss of lifetime earnings, loss of voting rights, and access to the social safety net.

All of which makes for a strong argument that the way we treat drug users is doing far more to rob us of competent, self-governing citizens than the drugs they’re using.


Degrading human nature . . . 

Prohibition of a vice pushes that vice underground. Instead fighting for market share with better products, cheaper products, or better service—as people in developed, prosperous societies do—they win market share with violence. Instead of resolving disputes in the courts, they resolve them . . . with yet more violence. See this graph of homicides before, during, and after alcohol prohibition, for example. Or witness the spike in violent crime in the late 1980s and early 1990s as the introduction of crack created new turf wars. Or look south to the carnage in Mexico in the 2000s when the Mexican government, at the prodding of the U.S., disrupted the country’s drug markets by bringing in the military to fight the drug war in a far more literal manner.

The drug war also breeds corruption among public officials. Talk to the cops in groups like Law Enforcement Against Prohibition, and they’ll tell you how narcotics cops fight off  temptations to corruption on a daily basis and how not all of them succeed.

Part of the problem is that with consensual crimes, there are no direct victims to report the crimes to police. In order to enforce the drug laws, law enforcement agents must often break them, either by going undercover, or by instructing confidential informants to break the laws for them. Cops don’t have to commit murders to catch murderers. They don’t commit burglaries to catch burglaries. But they do have to commit drug crimes to catch drug dealers. That can instill in some drug cops the idea that the rule of law is negotiable. Rules are subject to bargaining.

That’s true on an individual level, but it’s also true on an agency level and an institutional level. A few years ago, federal narcotics agents looked the other way while one of their informants participated in a series of gruesome murders in Juarez. Building a case against the cartel was more important than preventing murders. Just this month, El Universal reported on a deal between the DEA and the Sinaloa cartel that allowed the latter to import billions of dollars of illicit drugs into the United States. The Post’s Max Fischer has cast some doubt on the report, but federal officials looking the other way while informants continue to commit crimes is hardly unusual.

Asset forfeiture laws, in which police can seize property allegedly tied to drug activity, with the proceeds going back to the police department, provide more corrupting incentives. In a 1994 study reported in Justice Quarterly, criminologists J. Mitchell Miller and Lance H. Selva observed several police agencies that had identified drug stash houses, but delayed busting the houses until most of the drugs had been sold. A drug house stashed with cash is worth a lot to the police agencies who discover it. A drug house stashed with drugs isn’t.  In Nashville, a local news station reported a few years ago that drug task forces were far more likely to pull over suspected drug couriers on their way out of the city — when their cars would be full of cash — than on their way in, when their cars would be filled with drugs. These laws can also induce police to snatch property when there’s no connection to criminal activity at all. This has provided incentives for narcotics cops to engage in what is basically legalized highway robbery. And this is a problem that, again, disproportionately affects the poor.

A generation of drug war rhetoric has also conditioned much of the country’s law enforcement personnel to think of themselves as soldiers and the communities they serve as the enemy. Numerous retired police officers I interviewed for my book expressed their dismay at the confrontational, combative approach with which too many modern cops today approach their jobs. Those communities, in turn, see law enforcement more as oppressive occupiers than protectors. The use of informants also contributes to this problem. Decades-long abuse of the informant system by narcotics officers has eroded trust between cops and the communities they serve. The rise of the “Stop Snitch’n” movement, abhorrent as it might be, is an indication of a profound phenomenon: There are communities in America where the citizens fear the people who are supposed to protect them more than they fear the criminals. That is a striking degradation of human nature.

Here again is Bruce Western, writing in Reason:

The third important effect of incarceration is cultural, shaping how the institutions of law and order are viewed in high-crime/high-incarceration neighborhoods. The prison population is drawn overwhelmingly from low-income inner-city areas whose residents come to associate police and the courts with the surrounding social problems of violence and poverty. Police are viewed as unhelpful, and often unaccountable, contributing to what the Harvard sociologist Robert Sampson calls “legal cynicism” in troubled, crime-ridden neighborhoods.

Part of the power of punishment as a deterrent to crime is the shame and stigma of a criminal record. Where incarceration has become commonplace, as it has in poor African-American communities, the righteousness of the police is no longer assumed and a prison record is not distinctive. The authority of the criminal justice system has been turned upside down, and the institutions charged with maintaining safety become objects of suspicion.

The negative effects of incarceration reduce the penal system’s capacity to control crime. Drug dealing and other illegal activities are more attractive to people with prison records, who have few legitimate prospects. Children of incarcerated parents, without a secure and predictable home life, are at risk of delinquency and school failure. And a community, soured on a capricious and unaccountable police force, is less likely to call for help or assist in investigations.

Our effort to prohibit drugs turns peaceful market competition into violent wars for turf. (When was the last time you read about a Michelob deal gone bad, or about two wineries fighting for market share with assault weapons?) It corrupts public servants, public agencies, and public institutions. And it has turned entire communities against not only the police, but the very idea of a state-administered justice system. I have no doubt that in some cases, drug abuse can “degrade human nature” on an individual level. But on a large scale, it’s hard to imagine how they could degrade peaceful human interaction, civic order, and civil society more than our efforts to prohibit them.


Damaging and undermining families . . .

According to data compiled by the Drug Policy Alliance, as of 2008 (see sources at the link), 59 percent of the men in state prison on drug offenses were fathers; 63 percent of women in state prisons for drug offenses were mothers. As of 2008, 11 percent of black children (1.2 million) had at least one parent in prison. The rate among Latino children was 3.5 percent. Among white children, 1.75 percent. The latter is up from 0.4 percent in 1980.

It’s interesting that later in his column, Gerson cites welfare reform as a policy conservatives successfully conceived of and implemented, and that has produced positive results. Conservatives have long cited the destructive effects of welfare policies that provided financial incentives for single-parent families, and then for the further propagation of fatherless children. Yet at the same time they’ve supported a policy in drug prohibition that produces comparatively well-paying, black market jobs for low-income teens and young men— and in communities with bleak schools that offer few prospects. Because of that same policy, many of those men are later arrested and incarcerated, leaving their children fatherless. (The same policy also leads to many of those men getting killed, which of course also creates fatherless children.) When they get out, as mentioned earlier, these men face long odds to find meaningful, legal work that offers a steady income. Once again, the drug trade is there to offer some quick money. If poorly structured incentives in the welfare system can affect behavior, surely the promise of quick income from the black markets created by drug prohibition can too.

Again to Western, this time writing with Becky Pettit in the journal Dædalus:

Partly because of the burdens of incarceration on women who are left to raise families in free society, incarceration is strongly associated with divorce and separation. In addition to the forced separation of incarceration, the post-release effects on economic opportunities leave formerly incarcerated parents less equipped to provide financially for their children. New research also shows that the children of incarcerated parents, particularly the boys, are at greater risk of developmental delays and behavioral problems.

But the drug war’s burden on families extends beyond the effects of incarceration. Under the “one strike and you’re out” federal housing policy I alluded to above, families can be evicted from public housing for mere allegations of drug use, even if the allegations concern a minor, or even a houseguest.

We also now have laws that allow prosecutors to charge pregnant women with felonies for using drugs during their pregnancies. These women also lose their children. While few would defend drug use during pregnancy, a more family-oriented policy would seek to get these women help, instead of tossing their newborns into the foster system. The policies have also resulted in mothers having their newborns quite literally taken from their arms after some of these tests have produced false positives. Likewise, parents who treat bona-fide medical conditions like multiple sclerosis, Gulf War syndrome, or the effects of chemotherapy with medical marijuana are also seeing their kids taken away from them. The D.A.R.E. program has long encouraged children to turn in their parents for drug use. This has resulted in incidents in which parents are arrested for smoking pot in front of the child who turned them in. Those children were then taken to relatives, or put into foster care. Still today, parents caught with recreational pot can face neglect charges and possible loss of custody, even if there’s no evidence they’ve smoked around their kids.

Pictured in the photo above, Carly Tangney-Decker and Jeff Decker are asking New York state to legalize medical marijuana. Their daughter has a condition that causes here to have debilitating seizures. Children with the disease can have 100 or more seizures per day, and the condition is often fatal. Marijuana has been shown to reduce both the frequency and severity of seizures. Yet parents of these kids can’t legally access the drug in most states. (See this father’s impassioned plea to New Jersey Gov. Chris Christie of New Jersey, and Christie’s rather callous response.) Here in Tennessee, some desperate parents have picked up their families and moved to Colorado to find relief for their kids, despite having no jobs, roots, or support systems there.

Few would argue against the proposition that drug abuse can disrupt and undermine families, but there are few events more destructive to a family than removing them from their home, taking children from their parents to put them in foster care, or incarcerating a parent. Here again, the effort to prohibit illicit drugs seem quite a bit more harmful than the drugs themselves.


Toward the end of his column, Gerson pines for the time when conservatives had more assertive public policy ideas. He writes, “In the 1990s, a cadre of conservative reformers achieved success against three seemingly intractable problems: welfare dependency, drug use and violent crime.”

I’m not qualified to address the efficacy of welfare reform. But for all the harm outlined above, I don’t know that we’ve really achieved “success” in curbing drug use. I used data from the National Household Survey on Drug Abuse to put together the chart below:

As you can see, there’s no real indication that illicit drug use dropped significantly after the early 1990s. (It’s worth noting that NHSDA changed its methodology in 1999, so it’s difficult to compare the years before then with the years after.) In fact, among teens it appears to have jumped. Among all ages, the line is pretty flat.

As for violence, Gerson is correct. The violent crime rate has plummeted since 1994. But it’s far from clear that conservative policies should get the credit. It’s true that you can find studies that appear to validate conservative ideas like broken windows policing, CompStat policing, or mass incarceration. There are also studies that claim to discredit those policies. There’s also some evidence that some of the more punitive law-and-order policies from the era, like “Three Strikes and You’re Out” law may have actually increased violent crime. Other conservative rhetoric, such as dire warnings about the rise of juvenile “superpredators” or panics about satanists abusing children in bizarre sex rituals did irreparable harm.

The consensus among criminologists I’ve talked to over the years seems to be that we can credit mass incarceration for 10-15 percent of the drop in crime since the mid-1990s. There’s also increasing evidence that “hot spot” policing has helped in larger urban areas. Beyond that, there’s little agreement. Other theories for the crime drop include an aging population, improved standards of living, the dissolution of the crack epidemic, the regulation of lead out of gasoline and household products, and legalized abortion, among others.

The broader point to Gerson’s column is that conservatives should ignore libertarian influences and concentrate on finding government-affirmative solutions to problems like income mobility. He writes:

Economic mobility has stalled for many poorer Americans, resulting in persistent, intergenerational inequality. This problem is more complex than an income gap. It involves wide disparities in parental time and investment, in community involvement and in academic accomplishment. These are traceable to a number of factors that defy easy ideological categorization, including the collapse of working-class families and the flight of decent blue-collar jobs.

It’s particularly odd to see someone cite income immobility as a reason to continue the drug war. (David Frum has made the same argument.) In 2009, Harvard published the results of a 20-year longitudinal survey of a group of men who in 1986 were in the bottom quintile of earnings distribution. By 2006, 64 percent had moved into a higher quintile. Among men who had been incarcerated, the number dropped to just 25 percent. Of the five contributors to economic immobility Gerson lists in the paragraph above, the drug war is a factor in four.

In fact, as the New York Times’ John Tierney pointed out last year in a series on incarceration, researchers are finding that incarceration disrupts entire communities, even entire counties.

Epidemiologists have found that when the incarceration rate rises in a county, there tends to be a subsequent increase in the rates of sexually transmitted diseases and teenage pregnancy, possibly because women have less power to require their partners to practice protected sex or remain monogamous.

When researchers try to explain why AIDS is much more prevalent among blacks than whites, they point to the consequences of incarceration, which disrupts steady relationships and can lead to high-risk sexual behavior. When sociologists look for causes of child poverty and juvenile delinquency, they link these problems to the incarceration of parents and the resulting economic and emotional strains on families . . .

“Education, income, housing, health — incarceration affects everyone and everything in the nation’s low-income neighborhoods,” said Megan Comfort, a sociologist at the nonprofit research organization RTI International who has analyzed what she calls the“secondary prisonization” of women with partners serving time in San Quentin State Prison.

Before the era of mass incarceration, there was already evidence linking problems in poor neighborhoods to the high number of single-parent households and also to the high rate of mobility: the continual turnover on many blocks as transients moved in and out.

Now those trends have been amplified by the prison boom’s “coercive mobility,” as it is termed by Todd R. Clear, the dean of the School of Criminal Justice at Rutgers University. In some low-income neighborhoods, he notes, virtually everyone has at least one relative currently or recently behind bars, so families and communities are continually disrupted by people going in and out of prison .

In 2012, the economist David Henderson wrote a piece for the right-leaning Hoover Institution about the “bottom one percent.” By that, he was referring to the incarcerated, who of course have little to no annual income. There are currently well over a half million people in prison for non-violent drug offenses. There are about a million more on probation or parole. According to a study by Students for Sensible Drug Policy, about 200,000 young people have lost access to financial aid due to some sort of drug offense, although since that figure was from 2006, it’s probably much larger today.  In 2012 alone, 1.5 million people were arrested for some sort of consensual drug crime. Of those, 1.2 million were arrested for possession, not distribution. On average, taxpayers pay $25,000 per year to house each prisoner. In some states, the figure can approach $50,000. As Henderson writes, we’re paying that money “so that the government can put poor people in prison and keep them poor,” and to “put non-poor people in prison and make them poor.”

If conservatives like Gerson and Frum are truly concerned about income inequality, income immobility, social disorder, erosion of the rule of law, disrespect for for public institutions, and the dissolution of the family, it seems they should at least address the drug war’s contribution to these problems. Instead, when contemplating solutions to these problems, reforming or ending the drug war is usually the first option they take off the table.