Most of those who favor legalization in some form (decriminalization, regulation, for medical use) use two arguments in combination. The first is that an approach to drugs based on prohibition and criminalization does not work, produces excessive rates of incarceration, and costs a lot of money that could be more productively spent on treatment and prevention. The second is that drug use is an activity arbitrarily called a crime. It is imposed by law on some drugs and not on others, and can be seen as criminal at one time but perhaps not at another. Murder, rape, and robbery have always been considered inherently criminal acts, but drug use is just a consumption of substances; its control is arbitrary and follows fashions. Alcohol consumption was once prohibited but is now legal. In the early 1900s opiates were sold in pharmacies and Coca-Cola contained small quantities of cocaine.
While some who advocate legalization of drugs come at the issue from a libertarian perspective—the belief that the government has no business telling people what they may and may not ingest—most proponents do not deny that many drugs can be harmful (though many dispute the degree); they merely point out that tobacco use and alcohol abuse are harmful too—more harmful and/or more addictive in fact than some drugs that are illegal. The policy they recommend is based on educational and public health approaches also used vis-à-vis tobacco and alcohol. A greater harm is imposed on society by prohibiting such substances, as evidenced by the consequence of the Prohibition period of the early twentieth century, during which alcohol was banned and crime, racketeering, and homicide rates soared.
The general policy as advocated by most mainstream proponents of legalization is sometimes summed up in the phrase "harm reduction." The ACLU's Ira Glasser outlines the issues, in testimony cited above, concisely in three paragraphs:
There are two kinds of harms associated with the use of drugs. One set of harms may be caused by the drugs themselves, and varies widely, depending on the particular drug, its potency, its purity, its dosage, and the circumstances and frequency of its use. Distinctions must be made between the harms caused by heavy, compulsive use (e.g., alcoholism) and occasional, controlled use (e.g., a glass of wine each night with dinner). Distinctions must also be made between medical use (e.g., heavy dosages of morphine prescribed by doctors over a two-week period in a hospital setting or methadone prescribed daily on an outpatient basis as maintenance) and uncontrolled use (e.g., by addicts on the street using unregulated heroin and unclean needles). And distinctions must be made as well between relatively benign drugs (e.g., marijuana) and drugs with more extreme short-term effects (e.g., LSD) or more severe long-term effects (e.g., nicotine when delivered by smoking tobacco).
The second kind of harm associated with the use of drugs is the harm caused not by the drugs themselves but by dysfunctional laws designed to control the availability of the drug. These harms include massive incarceration, much of it racially disparate, and the violation of a wide range of constitutional rights so severe that it has led one Supreme Court justice to speak of a "drug exception" to the Constitution. Dysfunctional laws have also led to reduced availability of treatment by those who desire it (e.g., methadone maintenance), as well as a number of harms created by uncontrolled and unregulated illegal markets (e.g., untaxed and exaggerated subsidies for organized criminals; street crime caused by the settling of commercial disputes with automatic weapons; unregulated dosages and impurities; unclean needles and the spread of disease, etc.)
All laws that address the issue of drugs ought to be evaluated by assessing whether or not they reduce or enhance such harms.
Many proponents see the chief benefits of legalization in decreased crime from trafficking, gang wars, and crimes committed to obtain drugs, lower incarceration rates and associated cost savings, and more funds available for treatment from savings and from taxes on legally distributed drugs. Legalization of drugs is also seen as making available marijuana in medical applications, such as relieving the suffering of cancer and AIDS patients.
The government's case against legalization is summarized in a brochure published by the Drug Enforcement Administration in 2003 entitled Speaking Out against Drug Legalization. The ten arguments presented by the Drug Enforcement Administration (DEA) are shown in Table 11.2.
Ten facts cited by the Drug Enforcement Administration on legalization of drugs, 2003
SOURCE: "Summary of the Top Ten Facts on Legalization," in Speaking out against Drug Legalization, U.S. Department of Justice, Drug Enforcement Administration, May 2003
||We have made significant progress in fighting drug use and drug trafficking in America. Now is not the time to abandon our efforts.
||A balanced approach of prevention, enforcement, and treatment is the key in the fight against drugs.
||Illegal drugs are illegal because they are harmful.
||Smoked marijuana is not scientifically approved medicine. Marinol, the legal version of medical marijuana, is approved by science.
||Drug control spending is a minor portion of the U.S. budget. Compared to the social costs of drug abuse and addiction, government spending on drug control is minimal.
||Legalization of drugs will lead to increased use and increased levels of addiction. Legalization has been tried before, and failed miserably.
||Crime, violence, and drug use go hand-in-hand.
||Alcohol has caused significant health, social, and crime problems in this country, and legalized drugs would only make the situation worse.
||Europe's more liberal drug policies are not the right model for America.
||Most non-violent drug users get treatment, not jail time.
The DEA's case is also organized around the concept of harm. Drugs are illegal because they cause harm. Legalization of drugs—even if only marijuana—will increase the harm already suffered by the drug-using public by spreading use to ever larger numbers of people. The agency cites Alaska's experience. Marijuana was legalized there in the 1970s and the DEA states that the Alaskan teenage consumption of marijuana at more than twice the rate of teenagers elsewhere was a direct consequence of the Alaska Supreme Court ruling. In 1990 there was a voter initiative that criminalized any possession of marijuana.
Yet despite the DEA's opinion, on August 29, 2003, a state appellate court affirmed the right of Alaskans to possess a small amount of marijuana in their homes; anything under four ounces might be deemed "for personal use." Anything over that amount is still illegal, since it is assumed the person is dealing drugs.
The DEA points to National Institute on Drug Abuse (NIDA) studies that show that smoking a marijuana joint introduces four times as much tar into the lungs as a filtered cigarette. The agency makes the point that drugs are much more addictive than alcohol and invites the public to contemplate a situation in which commercial interests might be enabled to promote the sale of presently illegal substances.
The DEA counters the "criminalization" charge by pointing out that only 5% of drug offenders in federal prisons and 27% of drug offenders in state prisons are held for possession, the rest for trafficking. The agency points out that even these numbers are deceptive because those imprisoned for possession are usually imprisoned after repeated offenses, and many of those serving a sentence for possession were arrested for trafficking but reached plea bargains permitting them to plead guilty to the lesser offense of possession.
Would legalization reduce crime? The DEA does not believe it would. Under a regulated drug-use system, age restrictions would apply. A criminal enterprise would continue to supply those under age. If marijuana were legalized, trade in heroin and cocaine would continue. If all three of the major drugs were permitted to be sold legally, other substances, like PCP and methamphetamine, would still support a criminal trade. The DEA does not envision that a black market in drugs could be eliminated entirely, because health authorities would never permit very potent drugs to be sold freely on the open market.
For all of these reasons, the DEA advocates the continuation of a balanced approach to the control of drugs including prevention, enforcement, and treatment.
Contradictions and Inconsistencies
Both proponents and opponents of legalization produce good arguments for their cases, but contradictions and inconsistencies are present in both presentations, suggesting that the ultimate evolution of this issue will turn on political, i.e., pragmatic, issues.
Proponents of legalization sometimes find the question of where to draw the legal line problematic. How harmful must a drug be before it should be made illegal? In an environment where public pressures are mounting against the use of tobacco, legalization of marijuana has a contradictory aspect. Funds expended now on incarcerating drug offenders may have to be expended in some future time on public health programs to treat ills caused by newly legalized drugs, though whether or how much the use of such drugs as marijuana would increase if it were legal remains entirely unknown.
Opponents of legalization fail to coherently address the question of alcohol and tobacco. One must engage in serious logical contortions to justify their legality when consumptions of comparably harmful substances can yield lengthy prison sentences.
Arguments claiming that the war on drugs is succeeding because drug use is down as measured against some point in the past ignore the fact that drug use is a cyclical phenomenon with ebbs and flows. In Speaking Out, for instance, the DEA presents a chart comparing overall drug use between 1979 and 2001, showing a decline in current users from 25.4 to 15.9 million people. In that period, however, current drug use first declined to twelve million persons in 1992 and then rose again to 15.9 million by 2001 while the same policies were being pursued. If the DEA had used 1992 as
its base year, it would have had to argue that its programs were not working.