Criminal law is under increasing pressure to change, particularly in how it deals with drugs. The War on Drugs has been raging for nearly a century, at a cost of perhaps a trillion dollars.

But it wasn’t always so.

The Bible takes a rather balanced approach to wine (it gets over 200 mentions). Catholics still drink wine in church as part of a traditional mass. Around the world, various religions have for centuries incorporated mood-altering substances (some of the hallucinogenic variety) into their efforts to achieve spiritual transcendence.

And even healthful exercise alters one’s consciousness. Runners speak of the “high” they achieve. Children spin in circles until they fall, dizzy, to the ground. Anyone who has leaped out of a perfectly good airplane or gone hang-gliding can describe the thrill.

So changing one’s perspective or mood by external means is nothing new. But the War on Drugs, is, in the long view, rather new. When alcoholic beverages were banned in the U.S. during the Prohibition era from 1919 to 1933, criminal gangs were happy to step in to replace legitimate businesses in manufacturing and distributing alcohol. The same, of course, is true for drugs that we’ve banned.

Bipartisan agreement at last?

Recent polls show that most Americans don’t think the War on Drugs has been money well spent. But the spending, and the violence, go on.

Federal appellate judge Richard Posner blogged about all this recently. He laid out the intractable difficulties any government faces when trying to control its population in this fashion.

How long can public policy run counter to public opinion? It seems the facts are at last beginning to sway the citizenry. I believe that in ten years the War on Drugs will be nothing but a bad memory. This is not to suggest that problems with drugs will disappear, but that we will have embraced an entirely new approach to solving those problems.

The Deterrence Fallacy

The focus of the war has been on the two ends of the drug production chain. We support governments (e.g., Mexico, Columbia) that agree to pursue those who oversee drug production. The idea is that these efforts and the threat of punishment can deter people from choosing to get involved in the drug trade.

Keep in mind that many drugs are agricultural in origin, like marijuana, cocaine (made from coca leaves), and heroin (made from poppies). Dirt-poor farmers choose to be slightly less poor by growing these crops instead of others. Poverty tends to trump deterrence.

The heads of the drug cartels are also undeterred. They are intelligent, organized, and ruthless. As Mexico stepped up its war on traffickers over the past several years, the traffickers stepped up their level of brutality. Parts of Mexico (particularly those close to the U.S. border) have become nearly lawless killing zones.

On the other end of the drug pipeline, here in the U.S., the approach at the street level is to attempt to deter using or dealing by promising long prison sentences. The result? A nation of prisoners. With 5% of the world’s population, the U.S. has 25% of the world’s prison population. Half of those imprisoned are in for drug offenses.

Supply and Demand

Another goal of the current strategy is to push the cost of drugs up, by reducing supply, thus making drugs an unattractive option. But if the cost of drugs on the street rises, those involved in distribution have even more incentive to get their product to consumers. And to the addicted, higher cost just means more pressure to find a way—any way—to come up with the money.

And drug testing doesn’t work either. When I was serving in the Army, we were subjected to random drug testing. The test method was urinalysis, which detected common illegal drugs like marijuana and cocaine. I became friends with two soldiers in my unit. They were bright, hard working young men. They also enjoyed smoking marijuana on the weekend, but didn’t want to ruin their Army careers by being court-martialed. Their solution? They used LSD—because urinalysis did not detect it.

Those who want to use drugs, whether for fun or because they are addicted, will use drugs—and that’s that. Deterrence fails, completely, at both ends of the drug trade.

Glacial movement in DC

The White House recently released its “National Drug Control Strategy 2013,” where it calls drug addiction a disease and raises the percentage of federal drug-fighting funds that will go to prevention and treatment. But 58% of those funds will still go to “enforcement.” This is change, but it’s not exactly big change.

The popular view of the War on Drugs as a failure is having more effect on politics at the state level. Two states, Colorado and Washington, have legalized (not just decriminalized) the recreational use of marijuana. It seems to me that medicinal marijuana laws represented a shattering rejection of the idea marijuana as a drug that should be illegal. Legalizing recreational use is the logical next step, as some respected medical professionals are calling for.

But will legalizing marijuana be the trigger for the implosion of the War itself? To a significant degree, yes. Accepting the notion that a given drug, outlawed for decades, should be perfectly legal is a big step. It shows a serious crack in the collective thinking that drugs are so dangerous that those who possess and use them must be imprisoned. Another indicator of this change is is the fact that someone who used illegal drugs (and freely admits it) has been elected president of the country, twice.

The other and equally important factor in the Drug War’s demise is much simpler: money. We just can’t afford to spend another trillion dollars this way. This is one example of how hard times can jolt a nation into realizations (and actions) that prosperity made seem impossible.

(image: drug trade vs. harm reduction from Shutterstock)

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