Decriminalizing Drug Usage

Everyone agrees that our prisons are filled to overcapacity with non-violent drug offenders, the consequence of a well-meaning but flawed drug policy. This also has racial overtones as the majority of incarcerated offenders are people of color, mostly black men. This deprives many underprivileged families of desperately needed husbands and fathers.

The most popular solution is to decriminalize simple drug usage. Try treatment instead. Our war on drugs is an abysmal failure. That is so obvious to anyone except a few ideologues that I don’t think it is worthwhile to argue the point. So let’s at least try something new. In addition to better outcomes for drug offenders, decriminalization would help resolve both prison crowding and over-incarceration of black men. Not incidentally, it would also save a lot of money that could be put to more productive use. We hear this from both sides of the political spectrum and all the way up to the White House itself.

It is too bad that this persuasive analysis is completely wrong! Readily available facts refute its very basis. It is the right prescription for the wrong problem. We can do it – and we should – but it will have negligible impact on overcrowded prisons or mass incarceration of black men. It’s true that our prisons are packed full and it is also true that a disproportionate number of prisoners are black men. But this is not the consequence of mindlessly tossing minor drug offenders in the clink. Let’s look at these facts.

The state prison population accounts for about 87% of the nation’s prisoners. The following chart comes from the most recent report by the Bureau of Justice Statistics, a component of the Office of Justice Programs in the U.S. Department of Justice. It is assigned by law with the task of assembling and disseminating crime statistics to assist policymakers in ensuring that justice is both efficient and evenhanded.


Note that drug offenders who were convicted of simple possession comprise only 4% of the total. Even this minuscule percentage overstates the situation because many were plea-bargained down from trafficking charges. Perhaps you point to the 12% who were convicted of trafficking and say that these also are inconsequential offenses. If so, you really need to refresh your understanding of what harm drug trafficking does, especially to vulnerable elements of our society. But even if you persist in this blinkered view, it is clear that the mass of prisoners are neither non-violent nor poor druggies caught up in our criminal justice system. I won’t belabor this point unduly except to note that even these statistics conceal an important fact. The vast majority of all of those incarcerated are multiple offenders with long rap sheets covering many types of offenses.

But what about our federal prison population? Although federal prisons hold only 13% of those incarcerated, drug traffickers do comprise a larger but declining portion, perhaps half in 2014. Many are members of notorious drug gangs. Shall we find ways to release them to prey upon the innocent? Less than 1% were convicted of simple drug possession and, as with the states, many of these were also beneficiaries of plea-bargains from more serious offenses. Even the claims about blacks being the dominant group of drug offenders in federal prisons are mistaken. Hispanics were 48% of drug offenders sentenced in federal court in 2013, blacks were 27%, and whites 22%.

All of this is not to say that there isn’t a problem. But decriminalizing drug possession is not the solution. One of my favorite authors, H.L. Mencken, captured the essence in a New York Evening Mail article in 1917: “There is always a well-known solution to every human problem – neat, plausible, and wrong.” Treatment rather than incarceration would be better for the drug users but that would have little impact on our prison population or the larger issues of crime and race. So by all means, let’s do it but don’t be misled by false hopes that it is some kind of cure-all for other societal ills.

The Lost War on Drugs

An aspect of the topical debate about policing is the issue of zero tolerance policing. Some liberals point a finger at this as a cause of unreasonably high incarceration rates among the underprivileged, particularly blacks in inner cities. On the other hand, it is widely acknowledged that this has contributed to reducing crime, although the exact correlation and significance is disputed.

But what puzzles me is what exactly is the alternative? Five percent tolerance policing? Ten percent? Which laws should be ignored and why? Is it a function of who breaks the law? Actually, neither the concept nor its alternatives survive close examination.

More to the point, perhaps the rules should be different in the ghetto from those in more affluent areas to compensate for different life experiences. I believe that this is essentially what I hear from some advocates and politicians. But then what about the victims of crime? Who speaks for them? Lax law enforcement is a dubious remedy. If the root causes are bad laws, then face up to it and change them.

That is precisely the situation. There is one cause underlying all of this. Fix it and many of these issues will fade into insignificance. It is our drug policy. Like the Volstead Act almost a century ago, this has been a failed experiment in moral enforcement. There are good arguments for trying to limit drug usage, but indiscriminate prohibition and fierce enforcement causes at least as many ills as it cures.

Drug War QuestionZero tolerance enters into this by focusing enforcement on drug users rather than suppliers and transporters. The idea was that strict enforcement and draconian penalties would quench demand and lead to the ideal of a drug-free society. No consideration was permitted for degree of violation or the known differences among varieties of narcotic substances. It is mindless, and consideration of predictable societal impacts was entirely ignored.

Let’s face facts. We have lost this war on drugs and our casualties have been severe, most notably in the poorer neighborhoods. Let’s try more judicious controls and see if that works better. This doesn’t mean anything goes; there must be some sensible middle ground. We could hardly be worse off, or at least that is so for the currently over-criminalized segments of society.