By Clive Crook
Financial Times - April 12 2009 

How much misery can a policy cause before it is acknowledged as a failure and reversed? The US “war on drugs” suggests there is no upper limit. The country’s implacable blend of prohibition and punitive criminal justice is wrong-headed in every way: immoral in principle, since it prosecutes victimless crimes, and in practice a disaster of remarkable proportions. Yet for a US politician to suggest wholesale reform of this brainless regime is still seen as an act of reckless self-harm.

Even a casual observer can see that much of the damage done in the US by illegal drugs is a result of the fact that they are illegal, not the fact that they are drugs. Vastly more lives are blighted by the brutality of prohibition, and by the enormous criminal networks it has created, than by the substances themselves. This is true of cocaine and heroin as well as of soft drugs such as marijuana. But the assault on consumption of marijuana sets the standard for the policy’s stupidity.

Nearly half of all Americans say they have tried marijuana. That makes them criminals in the eyes of the law. Luckily, not all of them have been found out – but when one is grateful that most law-breakers go undetected, there is something wrong with the law.
Harvard’s Jeffrey Miron published a study denouncing drug prohibition in 2004*.

He noted that more than 300,000 people were then in US prisons for violations of the law on drugs – more than the number incarcerated for all crimes in Britain, France, Germany, Italy and Spain combined. Today the number is higher – according to some estimates, nearly 500,000. The far larger number of people who have been convicted, at any point, of a drugs offence face permanently impaired employment prospects and all manner of other setbacks: in the US, once a criminal always a criminal.

Strict enforcement, Mr Miron explained, has reduced drug use only modestly – supposing for the moment that this is even a legitimate objective. The collateral damage is of a different order altogether. Violence related to drug crimes has surged in Mexico and in US cities close to the border, giving rise to renewed interest in the topic. Thousands are thought to have been killed by criminal gangs competing for the trade.

Many users also die because of tainted drugs, or because they share needles – consequences again of prohibition. There is an obvious national security dimension as well: in countries such as Colombia and Afghanistan, the huge surplus derived from prohibition supports terrorists.

The consequences of prohibition corrupt governments everywhere, and the US is no exception. Since a drug transaction has no victims in the ordinary sense, witnesses to assist a prosecution are in short supply. US drug-law enforcement tends to infringe civil liberties, relying on warrantless searches, entrapment, extorted testimony in the form of plea bargains, and so forth. Predictably, in the US the hammer of the law on drugs falls with far greater force on black people: whites do most of the using, blacks do most of the time.

Few policies manage to fail so comprehensively, and what makes it all the odder is that the US has seen it all before. Everybody understands that alcohol prohibition in the 1920s suffered from many of the same pathologies – albeit on a smaller scale – and was eventually abandoned.

The present treatment of alcohol, which is to regulate and tax the product, is the right approach for today’s illegal drugs. One could expect some increase in the use of the drugs in question, but also an enormous net reduction in the harms that they and the attempt to prohibit them cause. Adding the direct costs of prohibition (police and prisons) to the taxes forgone by the present system, the US could also expect a fiscal benefit of about $100bn (€75.7bn, £68.2bn) a year.

Is an outbreak of common sense on this subject likely? Unfortunately, no. Only the most daring politicians seem willing to think about it seriously. One such is James Webb, a refreshingly unpredictable Democratic senator for Virginia, who has called for a commission to examine the criminal justice system and the law on drugs. Politicians such as Mr Webb are very much the exception.

Elsewhere, signs of movement are minimal. Barack Obama has admitted that as a young man he used not only marijuana – and, unlike Bill Clinton, he inhaled; the whole point was to inhale, he joked – but also cocaine. This might suggest the president has an open mind on the subject. And in a departure from the previous administration, his attorney-general has said he will not bring federal prosecutions against the medical use of marijuana in states that allow it. But then at a recent event Mr Obama ran away from a question about the broader decriminalisation of marijuana under cover of a wisecrack.

For now, outright legalisation of marijuana, let alone harder drugs, is difficult to imagine. Even gradual decriminalisation – a policy that maintains prohibition but removes it from the scope of the criminal law – seems unlikely, though perhaps not unthinkable. A new study by Glenn Greenwald, a writer and civil rights lawyer, looks at Portugal’s policy of decriminalisation**. He judges it a success: “While drug addiction, usage, and associated pathologies continue to skyrocket in many European Union states, those problems – in virtually every relevant category – have been either contained or measurably improved within Portugal since 2001.”

Somebody in the White House should take a look. This national calamity is no laughing matter.
*Drug War Crimes, published by the Independent Institute. **Drug Decriminalization in Portugal, published by the Cato Institute



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