Frank Potts got 15 years for molesting an 11-year old girl. He was released from a Florida prison in 1988 after serving only six years, despite a parole report saying that his release could put other little girls in danger. Potts was re-arrested in 1994 on charges of molesting another 11-year old girl, but investigators believe that he also killed as many as 13 people in six states during the six years following his early release. Had he served his full sentence, these victims would still be alive. Pott’s victims are drug war casualties. A Florida Department of Corrections spokes-person justified Pott’s early release by noting that “the agency is bound by mandates from the courts and the legislature. In the mid-1980s, the prison system was inundated with inmates carrying minimum-mandatory sentences during the country’s initial skirmishes in the war on drugs.” Wars have casualties, and some are innocent bystanders.
Accelyne Williams of Boston was such a victim. Boston’s anti-narcotics squad hammered down his door, expecting to find a cache of guns and drugs. Instead, they found Reverend Williams, a 75-year-old retired Methodist preacher and substance abuse counselor. Reverend Williams, hands tied behind his back, died of a heart attack during the botched drug-raid. The police broke into the wrong apartment because they failed to check the story of an intoxicated paid informant who gave them the wrong address. Police like their “no knock” raids because they provide surprise and safety—safety for the police, death for Reverend Williams.
Some drug warriors have no qualms about putting the innocent in the line of fire. In April of 1991 a Belize Air International flight from Miami to Belize had a routine stopover in Honduras. Honduran authorities boarded and asked for permission to search. One member of the unsuspecting crew even helped in the search and was astounded when 48 kilos of cocaine was discovered. The drugs had been planted by American drug agents as part of a sting intended to expose drug smuggling in Miami. They had not informed the pilots, the passengers or the Honduran government. Three pilots, protesting their innocence, were hauled off to jail along with three passengers. For eleven days they were held in rat infested cells, and tortured with electric shocks and rubber hoses.
The presumption of guilt is also a casualty of the drug war. The police department in Sulphur, Louisiana, a community of 20,552, fought the drug menace by seizing about $5 million between 1990 and the end of 1994. Speeders on Interstate 10 are pulled over and those with a lot of cash are identified. Their cash is seized if narco-dog smells drugs on it. A successful seizure is likely, since virtually all our currency has trace amounts of cocaine. The Sulphur police and D.A. do not seem to care about the actual guilt or innocence of the cash-carrying speeders, however, as criminal charges are rarely pressed.
The Sulphur police may have started their cash confiscation policy after hearing about the budget-bulging activities of the Sheriff in Volusia County, Florida where over $8 million dollars (an average of $5,000 per day) was seized from motorists on Interstate 95 during a 41 month period between 1989 and 1992. How many were drug traffickers? No one knows, since few charges were filed, but many were probably innocent victims. Three- fourths of Volusia County’s 199 seizures did not include an arrest and were contested. But the motorists did not get their money back even when the seizure was challenged—even when no proof of wrong-doing or criminal record could be found and the victims provided evidence that the money was legitimately earned. Instead, the sheriff’s forfeiture attorney handle settlement negotiations. Only four people got their money back. One went to trial but lost and has appealed. Facing high civil litigation costs, the rest settled for 50 to 90 percent of their money after promising not to sue the sheriff’s department. Of course, they also had to pay a third or more of the returned money to their attorneys. Their crime? They fit a “drug profile” and they made the mistake of driving through Volusia County with cash in their pockets. Is the sacrifice of the innocent and of their civil liberties worth the effort in the case of the war on drugs?
Throughout time people have used a wide variety of drugs to relax and escape the drudgery of every day life, to get stimulation and insight, and perhaps most pervasive of all, to simply change reality. Ronald Siegel, a UCLA Medical School professor, claims that intoxication by drugs is widespread in the animal kingdom, suggesting there is a natural desire for self medication. He writes:
The motivation to use drugs to achieve these effects is not innate but acquired. The major primary drives, those associated with survival needs and part of the organism’s innate equipment, include the drives of hunger, thirst, and sex. These drives are a function of the organism satisfying certain primary biological needs. We are not born with acquired motivations yet they are not unnatural—they are simply an expression of what we strive to be. The pursuit of intoxication is no more abnormal that the pursuit of love, social attachments, thrills, power, or any number of other acquired motives.
So pervasive is this human urge to alter our mental state that we might forgive Siegel’s hyperbole when he labeled it “the fourth drive.”
America’s war against drugs is really combat against our own fourth drive. Our language is careless, of course. The war against the fourth drive is, like Truman’s Korean adventure, a police action with limited objectives. Too much of our activity serves the fourth drive to declare unconditional war. For most of us, pursuit of an altered state starts early in the day, with a cup of coffee. Alcohol is inextricably part of our social fabric, and tobacco, although increasingly maligned and limited in terms of the places it can be used, is still available for a legal buzz. Tobacco and alcohol are out of the combat zone despite the fact that they impose more costs on society than all illegal drugs combined. A real drug warrior, as MacArthur in Korea, would not tolerate such half hearted efforts.
William Bennett, the closest thing we have to a MacArthur of the drug war, is shrewder than the old soldier who faded away. No advocate of all out war, Bennett understands the panoply of interests that make it feasible to single out some fourth drive substances for prohibition while leaving others, more dangerous, legal. Notorious fourth drive pleasure seekers such Jesse Helms protect the Tobacco State’s interests while off beat NORML cannot get to first base in its attempt to legalize pot.
Prohibiting alcohol and tobacco is simply impossible. Over 100 million Americans drank alcohol last month. More than 50 million smoke. These drug users account for about half the adult population, too many potential offenders for the legal system to handle. There are fewer illicit drug users, but they also swamp the available prison beds. America has room for about 1.5 million people in jails and prisons. Over 1.2 million people used cocaine in the last month and almost 5 million used it within the last year. Over 9 million Americans used pot last month.
In July 1995, Newt Gingrich told fellow Republicans that illicit drugs should be legalized if we are not willing to win the drug war. Winning the war is an intriguing idea from the Speaker who wants to balance to budget. Incarcerating all cocaine users for a year would take about $74 billion after we constructed another 3.5 million prison beds. Operating costs to jail all the recent marijuana users would take $136 billion. By declaring a jihad against pot, a cool $365 billion could put everyone who used it last year into the slammer. This is five times total state and local spending on criminal justice, including police, courts and corrections. A real drug war is a budget buster.
That we can’t obliterate all drug use is not surprising. More puzzling is why the police action against drugs occasionally becomes virulent, only to subside again after failing to destroy the enemy within most of us. Scholars looking to the answer to this question see smoke rising from the guns of government agencies whose interests are served by criminalizing activities that come naturally to their fellow citizens.
Escalating police action against drugs is truly quixotic—it is a fight against human nature whose success requires repeal of the laws of economics. Indeed, the “fifth drive” may be the entrepreneurial spirit and its accompanying search for profits; a drive that undermines every prohibitionist effort. To overcome these overwhelming forces in opposition, extraordinary means are required. The price of this failed effort in America is found in a decline in public safety, a broken criminal justice system, and eroded civil liberties.
Our story has two parts. One is about the futility of suppressing the fourth and fifth drives. Public policies that try to frustrate strong motives of consumers and motives of suppliers are frequently overwhelmed like a sand castle by the incoming tide. The other is about why agents who allegedly represent the public’s interests insist on building these doomed sand castles.
Law enforcement is most effective in limiting the importation of marijuana, largely because it must be shipped in large bales in order to profitably smuggle it into American markets. Deprived of cheap foreign pot during the 80s, the price of marijuana rose and, according to a RAND Corporation study, users of marijuana were given stiffer penalties when they were arrested and found guilty. In the economists’ lingo, the “full price” of pot was climbing.
The most fundamental law of economics, the law of demand, says that consumers will buy less when the price rises. Naive drug warriors know about the law of demand, so they celebrate the effects of interdicting tons of marijuana, sure that countless youths are saved from a life ruined by ever-escalating drug use because the rising price of pot averted them from that first experience with a joint.
A little knowledge can be dangerous. As Mark Twain once observed, what you know that isn’t true can cause more harm than what you don’t know. A rising price of pot will cause pot users to adjust: they can use less marijuana and put the money saved in an account to pay college tuition (the choice preferred by former Drug Czar and author of The Book of Virtues, William Bennett), they can buy more beer, or start building model airplanes in order to get a buzz from the glue, or try cocaine. When it comes to the unintended consequences of their policies—consequences that are readily predictable with an understanding of how markets work—the drug warriors seem clueless.
Policies that increased marijuana prices set off a chain reaction that probably made things worse. People trying to satisfy the fourth drive will buy other items because of the rising price of pot, but the anti-drug wizards tend to forget that the money that was spent on grass will also be spent on the fourth drive. After all, when the price of beef skyrockets, people don’t buy candy bars, they buy other meats. So it is with pot smokers. A higher price of pot will not deter them from substance abuse and put them on the path of virtues.
A 1994 National Bureau of Economic Research study found that youth tend to drink more beer when the price of marijuana rises, with the result being more traffic fatalities. Beer drinkers are either more likely to drink and drive or they are more dangerous drivers than those in a pot stupor. Research shows that alcohol impaired drivers are more aggressive than those under the influence of cannabis.
In the early days of anti-communist hysteria some Americans claimed it was “better dead than red.” Drug warriors may be direct descendants of these true believers, apparently preferring to subject their children to killer alcohol rather than the much maligned weed.
Pot smokers can move to harder drugs too. A National Institute of Justice study reported that there was a precipitous increase in the use of crystal methamphetamine during 1985-86 after a crop destruction program decimated the marijuana supply in Hawaii. A 1993 study of hospital emergency room episodes found that the states that decriminalized marijuana during the 1970s had fewer cases that involved other kinds of illegal drugs. Making the killer weed harder to get during the 80s also contributed to rising cocaine consumption which, at the same time, was becoming cheaper and more available. Another unanticipated consequence of drug war successes against marijuana.
As much as a third of the marijuana shipped into the U.S. during the mid-80s was being interdicted. Entrepreneurs, looking for an alternative product to sell at the low-priced end of the drug market, turned to more easily concealed cocaine and introduced crack by simply adopting a technology already in use in the Bahamas. The results were dramatic. Cocaine consumption in its new form soared while supplies exploded: average cocaine prices in 1989 were less than half their 1979 level and high school students reported that the drug’s availability increased throughout the 80s.
Unintended consequences of stringent and relatively successful efforts against pot are clear: our youth were put in greater danger by rising consumption of beer and harder drugs. Faced with a higher price of pot, our youth apparently do not choose to buy The Book of Virtues, but instead seek out other ways—and sometimes more harmful ways—to satisfy the fourth drive. Entrepreneurs are happy to accommodate.
Reducing the supply of drugs which satisfy the fourth drive is a futile effort of the drug warriors. Another fundamental law of economics tells us that the supply of an illicit drug will fall as the costs rise. The drug warrior’s policy is to raise the cost of supplying a drug by increasing the chances of getting arrested and lengthening prison sentences for convicted dealers and traffickers. So far so good but, as in the case of the demand for drugs, the drug warriors seem to think that effective enforcement against a drug will cause would-be supplier to borrow The Book of Virtues from a reformed user and start a legal activity. Since they have experience in illegal activity and connections in the business, they are more likely to supply other drugs which are now relatively more profitable to produce and distribute.
Government attempts to thwart the drug trade are no match for entrepreneurial creativity. Consider again the case of cannabis. Successful interdiction of marijuana from Latin America increased domestic prices, providing a clear incentive to increase domestic production. As a result, it is now estimated that the $32 billion marijuana industry is the nation’s largest cash crop. One study of marijuana growers in Illinois found that some farmers entered the industry out of economic necessity—the relatively high price of marijuana seemed to be a pragmatic way to save the family farm for these growers.
California’s effort to thwart marijuana growers with aerial surveillance shows the industry’s creative response to accelerating enforcement. As the risks of outdoor cultivation increased, growers started indoor cultivation using marijuana strains that are particularly well suited for high performance under artificial light. Automated hydroponics are used to feed plants, diesel generators are required to conceal high energy use, and thick concrete walls mask the heat build up that might be detected by infrared sensors on aircraft. These innovative production techniques are hidden beneath ordinary houses and produce four crops a year that generate millions in profits. And economist Mark Thornton, in the new Independent Institute book, Taxing Liberty and Other “Sins”, explains that in an effort to pack a greater punch in a smaller package that can be more easily hidden from the prying eyes of the police, marijuana farmers have developed new and increasingly potent varieties. Prohibition lead to the substitution of white lightening for beer; the drug war has lead to the development of crack cocaine and super weed.
Combating the supply of cocaine is equally fruitless. The massive effort directed against the Medellin cartel in Columbia has damaged that group, but it has also led to a much more dispersed processing and shipping network that confounds future efforts. In 1992 the U.S. House Judiciary Crime Subcommittee reported that cocaine was being processed in as many as 13 countries. The number of countries serving as transshipment points for cocaine increased from eleven to twenty-five. Thus, the efforts directed against Medellin simply resulted in the expansion of the cocaine trade into most countries of South and Central America, making interdiction efforts increasingly costly and ineffective. Astonishingly, we are now told that recent successes against the Cali cartel will have a major impact on the flow of cocaine to America. But even if the Southern border could be sealed, the traffic will continue. Heroin from Asia’s Golden Triangle is now flowing into U.S. markets through Canada, as smugglers have found British Columbia’s long and uninhabited coastline to be an easy access route into North American markets. Can we fence the Northern border as well? Reports of successful interdiction of drugs is the stuff of media relations, not diminished supply.
Unfortunately, the ineffectiveness of law enforcement efforts is a modest shortcoming compared to the litany of problems they exacerbate: increasing property crime, more violent crime, trammeling of constitutional rights, and drawing juveniles into criminal activity.
That a craving for drugs causes regular drug users to rob and steal to pay for their habit is the great myth of the war on drugs. Perpetrators of the myth want us to believe that drug users are the cause of crime. If drugs cause other crime then a drug war is a “win-win” policy because it discourages the fourth drive while reducing crime.
The win-win theory is flawed in its basic premise: most evidence shows that property crime is not caused by drug use. Studies of jail inmates by the National Institute of Justice found that almost half of the regular users of hard drugs are employed full time in the month before the offense was committed. Only 29 percent of these chronic drug abusers reported having illegal income which, of course, includes earnings from the most lucrative crime—drug selling. While illegal activity tends to rise in periods of intense drug use, most research suggests a relatively weak link between property crime and drug use.
Studies of the temporal sequencing of drug abuse and crime confirms this conclusion. A U. S. Bureau of Justice Statistics study of prison inmates found that approximately half of the inmates who had ever used a major drug, and roughly three-fifths of those who used a major drug regularly, did not do so until after their first arrest for some non-drug crime. Most of these inmates were criminals who later turned to drugs. A survey of jail inmates reported that more than half of local jail inmates admitting to regular drug use said that their first arrest for a non-drug offense occurred an average of two years before their first use of drugs.
Rather than drugs causing crime, it is more likely that drug enforcement causes crime. This is the case because police officers have time to only pursue a portion of all crimes committed. Increasing law enforcement efforts against drugs means that police officers must be pulled from other activities. We found that increasing drug enforcement in Illinois resulted in a decline in general traffic control and a sharp decline in drunk driving arrests. Roads in Illinois became more dangerous as a consequence: traffic fatalities rose dramatically relative to the rest of the country.
In Florida, our research reveals that the War on Drugs was fought at the expense of property crime as police efforts shifted to drugs. This means that the chances of being arrested for a property crime falls, and burglars can commit more crimes before they are apprehended. We estimate there was a 10 percent increase in property crimes due to reallocating police effort from property crime to drug offenses in Florida between 1984 and 1989. Drug policy expert Mark Kleiman confirms this view: “much of the increase in local drug enforcement during the 1980s came at the expense of other law enforcement efforts... As a result, certain kinds of property crimes are treated as unworthy of investigation or prosecution.”
Drug war advocates also bolster their position with the myth of drug crazed killers, arguing that drugs cause people to be violent. Volumes of research cast aspersions on a causal link between drug use and violence. More plausible is a connection between drug-enforcement and violence. Increasing drug enforcement tends to disrupt local drug markets, causing dealers to seek out safer markets. If these markets are already being served by other dealers, violence, which is one of the standard methods of competition in illicit markets, can erupt. Even without aggressive enforcement, illegal drug markets will generate violence because participants must resort to threats and physical harm to enforce contracts since the courts do not serve illegal enterprises.
A study of New York City found that about 40 percent of homicides were directly related to the trading of illegal drugs. Only 7.5 percent of the homicides were attributed to the psychopharmacological properties of drugs. Alcohol was involved in 80 percent of the homicides caused by drug use, confirming that booze may be the most dangerous drug.
Most illicit drug related violence is caused by the illegality of these products and by police enforcement, not by the pharmacological properties of substances that satisfy the fourth drive. Consider Quebec’s recent experiences with taxes on cigarettes, for instance. Tax levels in excess of 60 per cent on cigarettes may have reduced cigarette consumption some, but they also convinced many smokers that they were justified in breaking the law. The fourth drive cannot be prohibited by laws and police, and it cannot be taxed away either. Roughly half the cigarettes in Quebec were being purchased in illegal black markets in order to avoid excise taxes; indeed, one in nine cigarettes consumed in the entire country was purchased illegally. Canada exported roughly 7.6 billion cigarettes to the U.S. in 1992, for instance, and police estimate that 80 percent were smuggled back into Canada.
Cigarette smuggling was so lucrative that organized crime got involved. Rival smuggling gangs were exchanging gun fire as they competed for shares of the illegal market. Large boats were being stolen, armed with mounted guns, and painted black for nighttime smuggling. Canadian police were forced to become involved in the same kinds of interdiction efforts against cigarettes that the U.S. is attempting today for illegal drugs. The results were also similar: the flow of illegal cigarettes into Canada was unabated. And this futile crackdown on tax avoiders and smugglers required that taxes be raised to support a larger criminal justice system or that criminal justice resources be shifted away from efforts to deter burglars, robbers, rapists, and other criminals who threaten lives and property. Citizens of Quebec apparently recognized the futility of this limited war against tobacco, and in early 1994 their government announced a massive reduction in the provincial cigarette tax.
Aggressive prosecution of a drug war can also increase property and violent crime by crowding prisons with drug offenders, forcing the early release of predatory felons who are a threat to people and property. Overcrowding of Florida’s prisons provides one of the most dramatic examples of how rising drug enforcement can compromise the punishment of other criminals. In 1984 about 1,620 drug offenders were admitted to Florida’s prisons. By 1989 drug admission ballooned to 15,800, more than one in three admissions. Getting tough on drug offenders resulted in leniency for others. By the end of 1989, the average prisoner served about 33 percent of his sentence, down from the 50 percent typically served before the drug war escalated. In December 1989, about 37 percent of the prisoners released had served less than 25 percent of their sentence and some served less than 15 percent.
Prison beds are in short supply too. If this scarce resource is devoted to non-violent drug offenders, the beds cannot be used for other felons. Grim consequences are not hard to find. Getting soft on Frank Potts was another unintended consequence of the drug war.
Tougher sentences for dealers can make drug entrepreneurs more cautious, causing them to lengthen the distribution chain and involving more people in the drug trade. Juveniles become increasingly attractive employees in the business because they face a much lower risk of imprisonment than adults. Those youngsters we most want to save from drug use are inextricably drawn to the economic opportunity provided by the drug war. A 1990 RAND Corporation study of drug dealers in Washington, D.C. found that most juveniles drawn into the drug trade were not consumers when they started selling, but if the survived and prospered they also became consumers.
The drug war has undermined the safety of Americans in yet another way: citizens have become more vulnerable to attacks from their government. Hysteria over drug markets led courts to relax the standards for reasonable search and seizure and invasion of individual privacy. Legal scholars have examined these issues in detail. The importance they attach to the drug war’s intrusion in these areas is captured in the titles of various law review articles: “The Incredible Shrinking Fourth Amendment,” “Another Victim of Illegal Narcotics: The Fourth Amendment,” and “Crackdown: The Emerging `‘Drug Exception’ to the Bill of Rights.”
American drug policy is an obvious failure. Drugs are readily available to satisfy the fourth drive. America is less safe due to this quixotic policy. There is more property crime and violence. Instead of protecting youth, the war draws the most vulnerable into the drug trade. It has empowered government at the expense of individual rights. With such a record of accomplishment, how can we explain the rise of drug enforcement that started during the 1980s?
One thing is certain: there was no groundswell of public opinion demanding a war on drugs. The Gallup opinion polls did not even ask whether drug abuse was “the most important problem” in the early 80s, and only 2 percent responded in the affirmative in January 1985. The office of the “drug czar” was created by the Anti-drug Abuse Act in November 1988 when about 11 percent of Gallup’s respondents thought drug abuse was the nation’s premier problem.
William Bennett used his office as a bully pulpit, building support for the anti-drug effort. By May 1989 27 percent thought the drug czar dealt with the most important issue, a proportion that would rise to 38 percent by November of that year. Since drug arrests per 1000 population rose rapidly after 1984 and reached its peak in 1989, it is clear that policy led public opinion, not the other way around.
Despite the popular notion that legislators are the prime movers of public policy, the independent impact of legislators on drug enforcement policy is minimal. One reason is that their primary role in anti-crime efforts—other than budgeting for prisons, courts, and police—is to change the criminal code. Code changes are a policy tool that is akin to pushing on a string, since the application of the policy rests with police, prosecutors, and judges. Legislators’ independent impact on the drug war is also undermined by the fact that they initiate or write few bills of any kind. Rather, legislators act as brokers, sponsoring bills before the legislature that originate in the offices of interest groups. The well organized interest groups dominating the criminal justice legislation are in law enforcement—police chiefs, sheriffs, and prosecutors.
Recent research suggests that the police have played a particularly important political role in accelerating the drug war. Most people in public and private organizations want to have an important job, discretion, sufficient budget to do the job well, security, and prestige. Police bureaucrats also have these personal interests which may collide with the “public interest.”
More drug enforcement can increase police budgets. Law enforcement agencies tend to get more resources when they “need” them to combat increasing crime. Studies also show that higher police productivity—measured by more arrests—tends to increase the police budget. In this fiscal environment, a drug war is a policy made in heaven from the agency’s perspective. When officers spend more time making easy drug arrests during street sweeps, for example, they increase the department’s measure of productivity. Property offenders are less likely to be caught for any single offense when the police are focusing on drugs, so the crime rate rises. This puts the police in an enviable position when bargaining for a bigger budget: the measure of need for police, reported crimes, rises as more arrests suggest they are increasingly productive.Police agencies had an even more compelling reason to focus on drug enforcement after the Comprehensive Crime Act of 1984 increased the incentives to seize the assets of drug dealers and traffickers. This legislation required that the Justice Department share the proceeds from seized assets with state and local agencies participating in investigations, even if the state law prohibited these agencies from retaining such assets by directing seizures into general funds or education budgets. Law enforcement agencies in states that limited their ability to profit from asset forfeiture began circumventing these laws after 1984 by routinely arranging for federal “adoption” of forfeiture cases even when there was no federal involvement in the investigation, so the proceeds could be passed back to the local agency. Our research suggests that it was this 1984 asset seizure law that really shifted the drug war into high gear. Following its passage, local police began providing the troops that the feds needed to wage their war.
Once education interests and others affected by this diversion of state funds recognized this practice, they advocated a change in the law. They were successful: Section 6077 of the Anti-drug Abuse Act of 1988 changed the asset forfeiture procedures so that no funds would be distributed in a way that circumvented state law. The Department of Justice interpreted the law to mandate an end to all adoptive forfeitures.
This section of the 1988 act was immediately attacked by state and local law enforcement officials. Civil asset forfeiture had become very popular with law enforcement agencies. By 1990 over 90 percent police departments in jurisdictions with a population of more than 50,000 reported having received money or goods from a drug forfeiture plan. During hearings before the U.S. House Subcommittee on Crime they testified that the effort to control drugs would fall if they could not benefit from asset forfeiture. Despite widespread misuse of forfeiture laws, Section 6077 of the Anti-drug Abuse Act of 1988 never went into effect. Its repeal was hidden in the 1990 Defense Appropriations Bill and the repeal was made retroactive. Police agencies won this political competition over how forfeited assets would be used.
During the repeal hearings one North Carolina official stated “If this financial sharing stops, we will kill the goose that laid the golden egg.” And golden it is. Since 1984 the Justice Department has collected $3.8 billion worth of seized property, most of which has gone back to state agencies. Much more was seized under state law, since many state legislators, seeing the golden egg, changed their laws to conform to the federal law.
Other testimony revealed that law enforcement agencies were focusing on confiscations rather than criminal convictions. One U.S. Attorney said “Drug agents would have much less incentive to follow through on the asset potentially held by drug traffickers, since there would be no reward for such efforts and would concentrate their time and resources on the criminal prosecution.”
Allowing the police to profit from assets seized from the rich illegal drug industry has a large impact on how police allocate their effort. Our Independent Institute report, Illicit Drugs and Crime, suggests that a state law allowing police to keep seized assets raises the ratio of drug arrests to total arrest by at least one-third. Police interests, not the public interest, seem to be at the root of the 1980s drug war.
The power of this self interest was so strong that federal prosecutors apparently ignored a 1989 Supreme Court ruling that should have limited the practice. The problem is simple: drug traffickers are prosecuted under criminal statutes and then have their assets seized under a civil procedure. This means that the defendant is subject to two punishments for the same crime, a violation of the double jeopardy clause in the Bill of Rights. The fifth drive applies to police chiefs and drug entrepreneurs alike.
In 1995 the Supreme Court clarified any misunderstanding about their 1989 ruling—and in the process cast into doubt hundreds of prosecutions which involved double jeopardy. There is dispute about why the feds continued to place drug traffickers in double jeopardy. Prosecutors claim they did not believe the 1989 ruling was relevant to these cases. A more cynical interpretation is that they made a lot of money seizing the assets.
Asset forfeiture statutes in the hands of state and local law enforcement officials is a basic threat to the citizenry. Forfeiture laws are supposedly designed to protect lien holders and owners whose property is used without their consent, but the owner’s rights are tenuous since most states prohibit suits claiming that the property was wrongly taken. This prohibition, coupled with the fact that the procedure takes place in a civil forfeiture hearing, diminishes the capacity of the owners to defend themselves. Owners whose property is alleged to have been used in a drug offense, or was purchased with the proceeds of a drug deal, must provide proof that they are innocent and deserve to have their property restored. Seizures are especially attractive to local police agencies when they get to keep the proceeds. Sulphur Louisiana’s police and the Sheriff’s office in Volusia County, Florida illustrated how this legislation can let police trammel innocent citizens. These are not isolated cases. A drug raid on Donald Scott’s home near Malibu led to Scott’s death when he made the mistake of grabbing a gun to defend himself after his door was broken in. A search warrant was issued after a Los Angeles Deputy Sheriff claimed that a helicopter-born DEA agent had seen marijuana growing on the 200-acre Scott ranch, but the real motivation was more sinister. The Los Angeles County Sheriff’s department had obtained standard property assessment information in the area before the raid. After investigating the raid, the District Attorney’s office suggested “the possibility” that the Deputy had “fabricated his information” in order to obtain the warrant, and that “the Los Angeles County Sheriff’s office was motivated, at least in part, by a desire to seize and forfeit the ranch for the government.” No marijuana was found.
The abject failure of the war on drugs makes clear the appeal of legalization of drugs. Conservatives and liberals are among legalization advocates, from Nobel Laureate economist Milton Friedman, author William F. Buckley, Jr., and former Secretary of State George Shultz to Baltimore Mayor Kurt Schmoke, columnist Anthony Lewis and ALCU President Nadine Strossen. Legalizing illicit drugs would mean treating them like alcohol, subjecting them to advertising limitations, excise taxes, age limits, and time and place restrictions. For many critics of the drug war, this is the logical solution to our drug problems. For libertarians this policy prescription is obvious; they reject the government’s right to impose on our freedom in any way so long as others are not harmed. But aside from such principled views of the problem, legalization appears to be an unobtainable alternative to the entrenched prohibition mentality. That does not mean that a drug war is the only remaining course of action, however.
Legalization and prohibition are two ends of the absolutist drug policy log; both are straightforward, easy to understand, and allegedly offer a solution to the drug problem. Herein lies America’s biggest problem in drug policy: a desire to “solve the problem” once and for all. A drug czar was appointed who came perilously close to acting like the real thing, being armed with tools that eroded the Bill of Rights. At the other end of the log are critics who want to declare victory and legalize despite strong opposition from middle class American parents who don’t want their kids exposed to these drugs.
American politics seems to have a fixation on the quick fix; a magic policy bullet to kill the drug problem. But drug use is a chronic human condition—it is the fourth drive—and we might best be served with an policy approach that relies on the pragmatic impulses of the American enterprise instead of its puritanical side.
Pragmatic drug policy is what the Dutch have employed for over two decades. America will find no blueprint for its drug policy in the Dutch experience, however, for it is a policy in constant flux, changing as unforeseen problems emerge from the dynamic drug scene and from unintended consequences of past policies. Holland also has an elaborate social welfare system and different criminal justice institutions that play a critical role in its drug policy. Nevertheless, there are aspects of Dutch policy that can help us find a path out of our fruitless war on drugs.
First is to have diminished expectations about drug policy. A commonly held belief in Holland is that the fourth drive will not be conquered and drug problems are a chronic condition. This attitude frees them from simplistic solutions and allows them to focus on reducing the harms associated with illicit drug use. The Dutch have the world’s most lenient policy toward drug addicts, yet there is relatively little political support for legalizing these drugs. The right of individuals to ruin their lives with drugs or quixotic ventures to stamp out drug use are not the stuff of Dutch policy. In Holland they talk of the “expediency principle.”
Decriminalizing marijuana is one Dutch policy that could easily be imported to America. Eleven states have had recent experience with this policy. Marijuana use increased as a result of this policy, but studies suggest that this rising use also resulted in less beer and hard drug consumption. The consequences were fewer traffic fatalities among youth and fewer emergency room mentions of drug overdoses in these states. American experience with decriminalizing the use of marijuana shows it is a practical first step in a more sensible drug policy.
Increasing emphasis on treatment should be a cornerstone of a pragmatic drug policy. According to a 1994 RAND study, treatment of heavy cocaine users is seven times more effective than domestic enforcement efforts, which includes cocaine seizures, asset seizures, and the arrest and incarceration of drug dealers. Even when treatment fails it can be cost effective, the study reports, because there are substantial benefits from keeping people off drugs while they are in treatment. RAND contends that about one-quarter of the resources used to limit the supply of cocaine could be better spent on demand reducing treatment programs, suggesting that law enforcement efforts against cocaine should not be abandoned because enforcement can encourage people to enter treatment. Court mandated treatment backed by threats of punishment appears to be effective relative to public policy alternatives—prison or probation—and probably relative to voluntary treatment as well. Of course, civil liberties issues are not weighed in this conclusion.
Drug policy in America puts police in the position of having to choose between making drug busts that provide extra budget for the agency or using the officers for more thorough investigations of robberies, burglaries, or general patrol that can discourage criminal activity. Our police should not face such choices. How many of us can put aside our own interests and do what is best for a community that will not be aware of the choices we make? Perhaps asset forfeiture should remain part of the law enforcement arsenal, but surely the assets seized should go to the jurisdiction’s general revenue fund rather than being earmarked for police use. And just as surely, forfeitures should not occur without a criminal conviction—it is time to end the temptations of civil forfeitures as Congressman John Conyers, Jr. has proposed.
In fact, expediency in America means that the federal government should get out of the domestic drug enforcement business. Drug use problems are primarily local. Only marijuana and cocaine are used throughout the country, according to a RAND Corporation study. The pattern of drug use among booked arrestees varies markedly across cities. Urine testing by a U.S. Justice Department program showed that cocaine was detected in 23 percent of males booked in Indianapolis during 1992, compared to 53 percent in Cleveland. On the other hand, only 3 percent of the males sampled in Cleveland tested positive for heroin while 19 percent used this drug is Chicago. RAND offered no explanation for widely different patterns of drug use among cities, but concluded that the “trend toward the centralization of drug policy making should be reversed.”
American federalism is designed for experimentation in its laboratories of democracy. The continuity of federal hegemony under Presidents Reagan, Bush, and Clinton has crushed promising state and local experiments that decriminalized marijuana and discourages local innovation in drug policy. Perhaps returning power to the states and making local officials responsible for law and order would cause them to weigh the consequences of a drug war before they compromise community safety by spending too many police and prison resources on two-bit drug offenders. Devolving power to local government is a Republican idea. The question now is whether the Republicans in power have the courage of their convictions.
