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Law, Legalization and the Failed War on Drugs


By David Schultz

What is the best way for the government to control or deter undesirable behavior? Often the solution is to criminalize it, making the behavior illegal and using coercive tools such as the law to punish those who violate proscribed norms. Yet the criminal law solution does not always work, often times producing externalities that make the original problem even worse. This may be the case with drugs.

America has fought a losing war and it is time to end it. No, this is not a reference to Afghanistan or the war on terrorism. It is to the four-decade long war on drugs that has failed miserably. It is time to shift away from a drug policy that criminalizes its use to one that treats it as a public health problem. This is not simply a call for medical marijuana, but for a serious debate on whether to decriminalize drugs in general and to ask if using the law as an instrument of control to address drug usage makes sense.

war on drugsRichard Nixon launched the “war on drugs” with his presidency in 1968 and coined the phrase in a 1971 speech. Since Nixon, the war on drugs has been a mainstay of Republicans if not bipartisan politics. The 1974 New York Rockefeller Drug laws penalized individuals with sentences of 15, 25 years or even life in prison for possession of small amounts of marijuana. Increased mandatory minimum sentences for crimes were ratcheted up for drugs and the move toward “three strikes and you are out laws” in the 1990s were adopted because of the drive to prosecute drug crimes. In the last decade, the federal government has spent $20-$25 billion annually on drug enforcement with states kicking in at least an additional $10-$15 billion. What has this money purchased?

There is little evidence that drug usage is down. Nearly 40 percent of high school students have reported using illegal drugs, up from 30 percent a decade ago. Some studies suggest 30 million or more Americans use illegal drugs in any given year. Every year, several hundred thousand individuals are arrested for mere use or possession of marijuana. Hard core use is not down. In fact, in some cases it has stabilized or increased. Programs such as DARE show little sign of success and the “just say no” campaign that begin with Nancy Reagan does not seem to have had much impact on drug usage.

If the war on drugs has done little to decrease demand for drugs, it has had powerful unintended consequences. Interdiction and enforcement has created a significant and profitable market for illegal drugs both in the United States and across the world. Estimates conclude that marijuana is one of the most profitable cash crops in California and the drug violence in Mexico, resulting in approximately 55,000 deaths in the last six years, is tied to American demand for drugs. The price of cocaine is now at record lows, courts are jammed with drug dockets and prison populations are filled with individuals whose only crimes were minor drug possessions.

States are now saddled with overcrowded, bloated and aging prison populations. Lives have been lost due to drug incarceration. Tax dollars that could have been spent on education, roads or simply saved have been wasted on drug enforcement. American politicians never seemed to lose points by ranting against drugs or demanding tougher enforcement. Clearly, they were addicted to our drug policies.

Drug criminalization has failed. This is not to say that drug use is not a problem. In some cases it is. But put into perspective, use of alcohol, tobacco or the consumption of fatty foods and sugary drinks that exacerbate obesity and heart disease are far greater problems in this country. In many cases, recreational use of drugs is harmless, in others, such as with medical marijuana, its uses may be beneficial. For others, personal and occasional use of drugs is a matter of privacy. Yes, one can concede that use of illegal drugs–including abuse of prescription drugs which is perhaps the biggest problem–is a public health issue. Lives can be lost to addiction and families broken up through abuse or neglect. Many of us know of friends or family members who lives read like a drug version of Billy Wilder’s 1945 classic The Lost Weekend. These individuals need medical help, not a prison term. Drug policy needs to be decriminalized and shifted to a public health approach. But many oppose decriminalization. Why?

The basis for opposing the use of drugs generally rests on one of two grounds. First, there is the moral claim that drug use is inherently immoral or bad because it alters the mind, debases human nature or reduces the capacity for autonomy. The second claim is social; arguing that the use of drugs and drug related activity produces certain social costs in terms of deaths, black marketing and crime. Another variant of this claim is that drug use diminishes social productivity by sustaining bad work habits or by generating other social cost, including increased health care costs.

One might concede that use of illegal drugs is bad or that it constitutes a public health problem that needs to be addressed. By having acknowledged this, the question is whether the current practice of drug criminalization and using police resources is the most effective policy to addressing this problem. One argument against the decriminalization approach is the sending signals argument. Specifically one major objection to the strategy proposed here is the argument that it would lead to an increase in drug usage and experimentation. Legalizing drugs would send a signal to individuals that drug usage is permissible and therefore more people would use them.

It is just not clear what impact making drugs legal or illegal has on their usage. Conceivably making them illegal creates a “forbidden fruit” aura that encourages their usage and would be abated by legalizing them. The same might be said for tobacco products and teenagers or perhaps for any other products or practices socially shunned. Regardless of the reasons why individuals choose to use drugs, there is little evidence that legalization has resulted in increased usage. In the Netherlands, decriminalization of some drugs has not lead to an increase in usage or in users trading up from soft to harder drugs. Five years after Portugal decriminalized many drugs in 2001, there too was little evidence that it led to increased drug use. Portugal’s drug usage rates remain among the lowest in Europe after legalization, while rates of IV-drug user infection rates and other public health problems dropped. In legalization of medical marijuana in California, the decriminalization might have changed attitudes towards the drug but there was no evidence of change in its use. So far, the same is true in Colorado with outright legalized marijuana. There simply is no real evidence that legalization sends a signal that drugs are permissible and therefore more people use them.

The point here is that the war on drugs has failed. It was a political narrative used by politicians for four decades to promote their electoral interests at the expense of public good and taxpayers. The criminal justice-prison industrial complex has gotten addicted to the war on drugs, making billions of dollars off the criminalization of drugs, especially marijuana. If we truly wish to win the war against drugs, whatever that means, jailing people is not the way to do it. It is time to end that narrative and establish a different approach that sees drug usage as a public health issue. The war on drugs may be a terrific example about the limits of the law and its ability to regulate human behavior.


Author: David Schultz is a professor in the department of political science at Hamline University. He is also the editor of the  Journal of Public Affairs Education. Schultz can be reached at [email protected].


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