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Drug Legalization and Decriminalization Beliefs Among Substance-Using and Non-using Individuals

Associated data, objectives:.

There has been advocacy for legalization of abusable substances, but systematic data on societal beliefs regarding such legalization are limited. People who use substances may have unique beliefs about legalization, and this study assessed whether they would be in favor of drug legalization/decriminalization. It was hypothesized that those who use particular drugs (especially marijuana) would support its legalization/decriminalization, but that this would not be the case across all classes (especially opioids and stimulants).

A nationwide sample of 506 adults were surveyed online to assess demographic characteristics, substance misuse, and beliefs regarding drug legalization/decriminalization. Legalization/decriminalization beliefs for specific drugs were assessed on an 11-point scale (0=strongly disagree; 10=strongly agree).

For persons with opioid misuse (15.4%), when asked about their agreement with: “heroin should be legalized,” the mean score was 4.6 (SEE= 0.4; neutral). For persons with stimulant misuse (12.1%), when asked about their agreement with: “cocaine should be legalized,” the score was 4.2(0.5). However, for persons with marijuana misuse (34.0%), when asked about their agreement with: “medical marijuana should be legalized” the score was 8.2 (0.3; indicating agreement), and for “recreational marijuana” the score was also 8.2(0.3).

Conclusions:

These results suggest that persons who used marijuana strongly support the legalization of both recreational and medical marijuana, whereas persons who primarily have opioid or stimulant misuse have less strongly held beliefs about legalization of substances within those respective categories. By including those who misuse drugs, these data assist in framing discussions of drug legalization and have the potential to inform drug policy considerations.

1.0. Introduction

Substance use is a major concern in both the United States (US) and abroad, with important consequences related not only to morbidity and mortality, but legal and economic concerns as well. In 2010, the Global Burden of Diseases, Injuries, and Risk Factors Study found that mental illness was the leading cause of years living with disability worldwide, with illicit substance use disorders (SUDs) and alcohol use disorders (AUDs) accounting for 11% and 10% of disability-adjusted life years within that category, respectively ( Whiteford et al., 2013 ). The 2016 National Survey on Drug Use and Health (NSDUH) estimates that 7.8% of adults in the US had a SUD during that year ( Center for Behavioral Health Statistics and Quality, 2017 ).

While much drug use remains illegal, there are growing efforts to legalize and/or decriminalize certain drug classes (such as marijuana and heroin), despite international drug treaties prohibiting the non-medical use of marijuana, cocaine, amphetamines, and heroin ( Hall, 2017 ). This is related, in part, to evidence that drugs such as marijuana or heroin, which had been previously categorized as having no medicinal value, may have potential medical benefit. These efforts are also premised upon the experiences of countries like Portugal, which decriminalized all illicit drugs in 2001 and reported subsequent decreases in drug-related societal problems, as well as support for legalizing drugs like marijuana for non-medical use in countries such as Canada and Uruguay ( Room, 2014 ; Goncalves et al., 2015 ; Cox, 2018 ). Several European countries and Canada have now endorsed the use of medicinal injectable and oral heroin (diacetylmorphine or diamorphine) as an effective medication for heroin use disorder among persons who are not otherwise responding to treatments ( Ayanga et al., 2016 ).

The US is beginning to demonstrate varied support for drug legalization and decriminalization. For instance, although not formally supported by the US federal government, eight states and the District of Columbia have legalized recreational marijuana, and twenty-nine states have legalized medicinal marijuana. However, systematic data on the opinions of Americans regarding the legalization/decriminalization of marijuana are lacking, and attitudes regarding the legalization/decriminalization of other substances are even sparser. Data show that the public’s opinions about marijuana seem to have changed over time ( Carliner et al., 2017 ), with 12% of the public supporting legalization in 1969 (based on survey data), compared with 61% per an online poll conducted in 2017 ( Geiger, 2018 ). Another recent online poll of registered US voters found that a modest majority (68%) was in support of legalization of marijuana for medical purposes, with 52% supporting its legalization for recreational purposes. However, this sample was vastly opposed to the legalization and decriminalization of other drugs (including cocaine, heroin, and methamphetamine), for both medical and recreational purposes ( Lopez, 2016 ).

Opinions about drug legalization/decriminalization can differ based on whether a person has a personal history of substance use and as a function of demographic and ideological characteristics (such a religious or political preference); these associations have only been evaluated in a few studies. The first such study was conducted in 2002 among 188 out-of-treatment persons who used substances, and persons who did not use substances, from low income, high drug-use sections of a US urban setting (Houston, TX), and reported that persons who used substances (marijuana, heroin, cocaine, or methamphetamine) were more likely to support the legalization of marijuana (68% in favor) than persons who did not use substances (33%), while each group showed little support for the legalization of heroin (12% vs. 8%) or cocaine (14% vs. 8%, respectively; Trevino and Richard, 2002 ). More recently, an online poll reported that Americans identifying as Democrats were more likely to be in favor of marijuana legalization (69%) than Republicans (43%). Also, white mainline Protestants were more in favor of marijuana legalization (64%) than white evangelical Protestants (38%) or Catholics (52%), while those who were not affiliated with any religion showed the highest support (78%; Geiger, 2018 ).

These polls have various limitations, and have not focused upon the attitudes and beliefs of people who use drugs. This population may have unique beliefs about legalization and/or decriminalization of a drug - either their drug of choice, or illicit drugs more broadly. The direct experience of using a drug might predispose a person to support more ready availability of that drug or, conversely, might make a person more cautious about decreasing barriers to its use. Survey data have demonstrated that opinions on drug legalization/decriminalization can differ based on the person’s belief system, such as varying as a function of political or religious affiliation. Persons who are generally more conservative may not be in favor of legalizing or decriminalizing substances. Surprisingly, there is little information on attitudes regarding legalization/decriminalization of drugs that systematically evaluates these domains. This study aimed to address this gap by surveying both persons who used substances and persons who did not use substances about their opinions regarding legalization and decriminalization of drugs, and to also evaluate whether differences in these attitudes were associated with different religious and political affiliations, or the lack thereof, as a secondary outcome. It was hypothesized that individuals who use marijuana would support the legalization and decriminalization of that drug, but that this would not be the case for heroin or cocaine among persons who used opioids or stimulants, respectively.

2.0. Methods

2.1. participants.

The sample was recruited online between July and November 2017. Participants (N=506) were registered as “workers” on the Amazon Mechanical Turk (AMT) platform ( Paolacci et al., 2010 ; Bartneck et al., 2015 ), which is an online forum where workers can anonymously complete tasks (such as surveys) assigned by “requestors” for a wage. Workers receive requestor approval ratings based on the quality of their work and completion time, which serves as an index of credibility and reliability ( Peer et al., 2014 ). To take the present survey, workers had to have an average requestor approval rating of 90% (as a quality control measure) and be located in the US. A short screening survey was given to ensure that participants were at least 18 years old, and it included other demographic questions, such as sex and race, to distract from the subject of the survey. The screening survey also limited the number of persons per category of primary substance used (including no use) using quotas, with a goal of obtaining at least 60 people in each primary substance category. A total of 2,672 persons attempted the screening survey, and 545 persons completed the primary survey. Those who were not eligible to continue on to the primary survey received $0.10 for completing the screening survey. After providing consent by agreeing to participate in the survey, those who answered questions in the primary survey received a bonus of two dollars, for a total of $2.10. The following quality control questions were included: 1) “Have you taken this survey before?” and 2) “Is there any reason for which we should not use your responses? For instance, you weren’t paying attention, you did not answer honestly, you had major computer issues, etc.” Those who answered “yes” to either of these questions were not included. The survey was hosted on Qualtrics (Provo, UT). The Johns Hopkins University Institutional Review Board approved the use of AMT for this survey research.

2.2. Measures

Demographic and drug use characteristics:.

Primary survey questions included demographic information such as education level, employment status, and income, as well as characteristics related to religious and political affiliations and whether the participant or someone close to them had ever experienced legal consequences related to substance use ( Table 1 ). Participants were asked whether they identified with a particular religion and to choose which major political party they identified with most among a list of the most common options; the options “none” and “other” were also provided. Additionally, participants were provided a list of substances and asked which they had used in the past year (including a write-in “other” option); for each substance they reported using, they were then asked to characterize use based on the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) SUD criteria ( American Psychiatric Association, 2013 ). Answering “yes” to two or more symptoms was operationalized as meeting criteria for a SUD for that substance. Participants who indicated using more than one substance in the past year were asked to identify which substance they would consider their primary substance; this was the basis upon which they were categorized for the remainder of the survey analyses.

Participant demographic data (N=506) 1

Decriminalization and Legalization Questions:

Participants were provided with definitions of legalization and decriminalization, and were then asked to rate their level of agreement with statements about legalization and decriminalization of heroin, cocaine, medical marijuana, and recreational marijuana on an 11-point scale with 0 representing “strongly disagree,” and 10 representing “strongly agree.” Some statements were worded in support of legalization/decriminalization of the substance while others were worded against legalization/decriminalization, to ensure participants were maintaining attention. Responses to the latter were reverse coded for consistency in reporting.

2.3. Statistical analyses

Participants were categorized into groups based on their self-reported primary substance used in the past year, with heroin and prescription painkiller misuse (taking pills other than how they were prescribed) collapsed into the “opioids” group; cocaine, methamphetamines, prescription stimulant misuse, or other stimulant use collapsed into the “stimulants” group; marijuana products, including synthetics, making up the “marijuana” group; any alcohol use included in the “alcohol” group; and no substance use in the “none” group. The degree to which demographic characteristics were associated with ratings for decriminalization/legalization was also assessed. Some demographic characteristics with multiple subgroups were dichotomized given limited numbers in some subgroups, including marital status (never married vs. ever married), race (minority vs. Caucasian), employment status (employed full time vs. other), education level (associates degree vs. less education), household income (less than or equal to $45,000 vs. more than $45,000) and political affiliation (Democrat vs. other).

Opinions on drug legalization and decriminalization as a function of primary substance used served as the primary analyses, while all others were secondary analyses. Categorical data, including demographics and SUD categorization were analyzed with chi-square analyses. Continuous data, such as age and drug legalization/decriminalization ratings, were analyzed with ANOVA or ANCOVA as appropriate. ANCOVAs controlled for those demographic variables that were significantly different among groups and showed a significant relationship with the outcome measure (see Table 2 ). Between-group planned comparisons of drug legalization/decriminalization ratings were compared between the primary substance categories, and then as a function of the group for whom the rating was deemed most relevant (e.g., ratings for heroin among persons who primarily used opioids, for cocaine among persons who primarily used stimulants, and for medical/recreational marijuana among persons who primarily used marijuana). Analyses used Type III sums of squares and planned comparisons among the primary substance use groups, and Pearson’s correlations to evaluate the relationship between legalization/decriminalization ratings. The primary outcome variables (legalization and decriminalization ratings) were not normally distributed. For the analyses in which we needed to control for certain demographic variables, ANCOVA were used as the main analyses, based on support for analyzing Likert data with parametric statistics ( Lubke and Muthén, 2004 ; De Winter and Dodou, 2010 ). The analyses by primary substance were significant when analyzed with Kruskal-Wallis tests, indicating that parametric and nonparametric statistics are approximately equivalent for these data. There were minor exceptions among the secondary analyses, but not the primary analyses. All analyses were performed in SPSS version 24.0. Statistical tests were considered significant at the p < 0.05 level.

Level of agreement with statements as a function of primary substance used 1

3.0. Results

3.1. participant characteristics.

A total of 506 participants completed the survey ( Table 1 ). Over the time of enrollment, the screening process targeted participants to ensure there were at least 60 subjects for each primary substance category. The final population had a mean age of 33.6 years old and was 53.0% male, 45.5% single (never married), and 25.9% racial minority (i.e., not Caucasian). Sixty-two percent of participants were employed full-time, 59.1% had at least an Associate’s degree, and 50.4% had a yearly household income of $45,000 or less. Among the total population, 36.4% of persons had experienced a legal consequence related to substance use among themselves or someone close to them. This was significantly more common among persons who used opioids (35.9%), stimulants (39.3%), marijuana (43.0%), or alcohol (36.4%), compared to those without substance use (19.5%). Participants were located in 43 states and the District of Columbia. For those persons who self-reported a primary substance used in the past year (N=429; 84.8%), a substantial proportion within each substance category reported symptoms meeting criteria for a SUD, including OUD (33/78; 42.3% of persons with opioid misuse), stimulant use disorder (25/61; 41.0%), marijuana use disorder (35/172; 20.3%), and AUD (39/118; 33.1%).

3.2. Preference for drug legalization and decriminalization of specific drug categories ( Table 2 )

3.2.1. heroin.

Overall, participants were not in favor of legalizing heroin (mean 3.8/10 for the total sample). However, persons whose primary substance was an opioid tended to have higher ratings (reflecting more positive attitudes) towards legalizing heroin (4.6/10) than persons who were classified as having primarily stimulant (3.3/10) or alcohol (3.4/10) use, as well as persons with no past-year substance use (3.4/10). The ratings of those with primary opioid misuse were similar to the ratings of persons with primary marijuana misuse with respect to attitudes towards heroin legalization (4.2/10). Ratings among all groups for decriminalization of heroin were even lower (total mean 2.9/10) indicating general lack of support. Persons who primarily misused opioids rated heroin decriminalization at 3.1 on average, which was not significantly different from other groups.

3.2.2. Cocaine

Similarly, the total sample of 506 persons was not in favor of cocaine legalization (3.8/10) or decriminalization (3.3/10). Persons with stimulant misuse rated cocaine legalization (4.2/10) and decriminalization (3.5/10) in a comparably low manner. Those who primarily used marijuana rated their agreement with cocaine decriminalization significantly higher (4.4/10), compared to those with primary alcohol use (2.8/10) and those with no use (2.8/10).

3.2.3. Marijuana

The total group of 506 participants was generally more in favor of the legalization and decriminalization of both medical (means for legalization = 7.2/10 and for decriminalization = 8.3/10) and recreational marijuana (legalization = 7.2/10 and decriminalization = 7.4/10), compared to legalization or decriminalization of heroin and cocaine. When examining the specific substance use groups, persons without any past-year substance use had lower ratings regarding legalization and decriminalization of marijuana, compared to other primary substance use groups. Conversely, persons with primary marijuana use had higher ratings for marijuana legalization (medical and recreational both = 8.2/10) and decriminalization (medical = 9.2/10 and recreational = 8.4/10).

3.3. Ratings as a function of primary substance used

This study hypothesized that respondents who identified a particular substance as their primary substance of use over the past year might be more inclined to see that substance legalized and/or decriminalized (particularly for marijuana). Results demonstrated that participants categorized as having primary opioid or stimulant misuse rated legalization and decriminalization of heroin and cocaine, respectively, at significantly lower values (indicating less endorsement) when compared to how those with primary marijuana use rated legalization and decriminalization of both medical and recreational marijuana (see corresponding cells of Table 2 ).

3.4. Religious characteristics

Whether persons identified with a particular religion or not proved to be an important variable among demographic characteristics, as well as legalization/decriminalization ratings (with religion serving as a covariate for those analyses). Thirty percent of participants identified with a religion. A significantly lower proportion of persons who used marijuana (21.5%) identified with a religion, compared to those who primarily used alcohol (37.3%), stimulants (36.1%), or no substances (37.7%). Similarly, those who identified with a religion were significantly less likely to report primary marijuana use (23.7%) than those who did not (38.6%). However, those persons who identified with a religion and used substances were significantly more likely to endorse 2 or more criteria on the DSM-5 SUD checklist (37.8%) than those who used substances but did not identify with a particular religion (27.8%).

There were statistically significant, though weak, negative correlations between identifying with a religion, and all drug legalization/decriminalization ratings (see Supplemental Table 1 ). Participants with a self-reported religious affiliation had significantly lower mean legalization/decriminalization ratings compared to those without any religious affiliation ( Figure 1a ).

Mean drug legalization/decriminalization ratings as a function of (a) religious or (b) political affiliation 1

1 Scales rated from 0–10, with 0 being strongly disagree and 10 being strongly agree. Unadjusted mean differences between groups were assessed with one-way ANOVA, with Tukey’s post hoc comparisons among political groups. Asterisks indicate p < 0.05 (b). Error bars indicate standard error of the mean (SEM). Asterisks indicate p < 0.05 when comparing persons who identify as republicans to those who identify as Democrats or have no political affiliation. Abbreviations: L- legalization, D- decriminalization, MMJ- medical marijuana, RMJ- recreational marijuana

3.5. Political characteristics

Political party affiliation (or the lack thereof) was also a significant factor among the demographic makeup of this population, their substance use, and opinions on drug legalization/decriminalization (making it a covariate for these analyses). The majority of persons surveyed (88.7%) were registered to vote. Fifty-one percent of participants identified with the Democratic Party, and the proportion of persons who used marijuana and identified as Democrats (60.5%) was significantly higher than those who primarily used alcohol (44.1%) or no substances (42.9%). Those who identified as Democrats were significantly more likely to use marijuana (40%) compared to non-Democrats (27.6%). Among those persons whose primary substance was alcohol, Democrats were significantly less likely to have an alcohol use disorder (12.7%) compared to non-Democrats (19.1%). Persons who identified as Republicans had significantly lower legalization/decriminalization ratings for each substance compared to those who identified as Democrats and those without any political affiliation (see Figure 1b ).

3.6. Ratings as a function of having a DSM-5 SUD vs. no SUD within primary drug categories

It is also possible that people with a more severe pattern of use (i.e., a SUD) would be more supportive of legalizing and/or decriminalizing the substance they use. However, there were no differences in ratings for legalization and decriminalization for any substance when comparing persons who use a substance but did not fulfill the DSM-5 SUD criteria, with those within that substance category who did meet the DSM-5 SUD criteria (data not shown).

3.7. Correlation of medical marijuana ratings to ratings of other substances

The use of medical marijuana is becoming more acceptable across the US, and it is possible that people who support the legalization/decriminalization of medical marijuana may also be open to supporting the legalization/decriminalization of other substances. We found a significant, though at times weak, positive correlation between how much participants agreed that medical marijuana should be decriminalized with ratings on heroin decriminalization (r=0.13, p=0.003), cocaine decriminalization (r= 0.15, p=0.001), recreational marijuana legalization (r=0.37, p=0.000) and recreational marijuana decriminalization (r=0.39, p=0.000). There was a significant, positive correlation between how participants rated medical marijuana legalization, and decriminalization of cocaine (r=0.09, p=0.038), legalization of recreational marijuana (r=0.43, p=0.000) and decriminalization of recreational marijuana (r=0.28, p=0.000).

4.0. Discussion

The current study provides new insights into opinions regarding the legalization and decriminalization of heroin, cocaine and marijuana. This study is unique in examining attitudes as a function of past year drug use, and hypothesized that persons who used substances would have differing drug legalization/decriminalization ratings for their self-reported primary substance, especially when comparing persons who primarily used marijuana to those who primarily used opioids and stimulants. Our hypothesis was supported by these findings, as persons who primarily used marijuana rated both the legalization and decriminalization of this drug favorably, but persons who primarily used opioids and simulants rated their support for both the legalization and decriminalization of heroin and cocaine relatively low, respectively. We found that overall most respondents were in favor of the legalization and decriminalization of marijuana (both medical and recreational), but not heroin and cocaine. These findings are consistent with the limited data that is currently known about opinions on marijuana legalization and decriminalization ( Lopez, 2016 ; Carliner et al., 2017 ; Geiger, 2018 ) as well as, heroin and cocaine ( Trevino and Richard, 2002 ; Geiger, 2018 ), though this is the first hypothesis-driven study of its kind since recent changes in marijuana laws have been made. Of note, while the concepts of legalization and decriminalization are fundamentally different, and were asked about separately in our survey, we found that they tended to track together (i.e. for each drug the mean ratings were either low, or below five, as in the case of heroin and cocaine, or above 5, as in the case of both recreational and medical marijuana). Thus, we will discuss the attitudes about both together.

These findings are particularly important because persons who misuse legal or illicit substances often have had interactions with the legal system, which may influence their attitudes and beliefs. Over a third of our participants had experienced legal consequences related to substance use themselves or through someone close to them. Data from the 2002–2008 NSDUH survey provides corroborating evidence of this relationship between drug use and legal consequences by showing that among those who had past year illicit drug dependence or abuse, 18% and 36% had been arrested once or more than once that year, respectively. Within the subsample of NSDUH respondents reporting past year alcohol dependence or abuse, these values increased to 38% and 52%, respectively ( Lattimore et al., 2014 ). The estimated prevalence of SUDs among incarcerated persons, while largely varied across studies, is substantial within both female (30–60%) and male (10–48%) prisoners ( Gerstein and Harwood, 1990 ; Mason et al., 1997 ; Lo and Stephens, 2000 ; Fazel et al., 2006 ). The high prevalence and comorbidity with SUDs indicates that legal issues are a significant factor in the current climate of substance use in the US.

The majority of our participants were not in favor of legalizing nor decriminalizing heroin and cocaine, even if they or someone they knew had suffered legal consequences related to substance use, or if they themselves met criteria for a SUD. These findings suggest that this population would not support policy changes related to heroin and cocaine legalization/decriminalization, which may reflect their own experiences, making them more cautious about increasing availability of these drugs. This sample was generally supportive of legalization and decriminalization of both medical and recreational marijuana. However, persons without any substance use in the last 12 months had significantly lower ratings than other groups, and were mainly neutral about marijuana legalization/decriminalization. The exception was that persons with no primary substance use had a higher rating on decriminalization of medical marijuana (mean 7.1/10) compared with their other ratings, perhaps because this was the most conservative marijuana option given. Interestingly, there was a positive relationship between agreement with decriminalizing medical marijuana, and decriminalizing heroin, cocaine, and recreational marijuana among our total population, suggesting an openness to minimizing criminal consequences associated with medical marijuana tracked with openness to the same for other drugs.

Understanding attitudes and associated characteristics towards drug legalization and decriminalization is important, especially in the currently changing social landscape, as several states in the US have passed laws legalizing and/or decriminalizing marijuana. For example, a study involving persons who voted on the initiative to legalize marijuana in Washington state reported that once marijuana stores began to open, persons who previously voted against the initiative were more likely to change their vote, if given the chance, compared to those who had voted in support of it ( Subbaraman and Kerr, 2016 ). Given the current changing environment, it is timely to determine whether persons continue to support legalization/decriminalization of marijuana and, more broadly, whether they would support legalization/decriminalization of other illicit drugs. Additionally, with other countries conducting research on heroin as a treatment for OUD ( Ayanga et al., 2016 ), it is important to consider how this may be perceived in the US and whether attitudes vary as a function of demographic and/or ideological beliefs.

There are several limitations to this work. The use of an online survey through AMT involves some selection bias, and resulted in a population which, while diverse, is not completely representative of the US population as a whole though it is demographically consistent with other studies involving AMT workers ( Chandler and Shapiro, 2016 ). Additional studies conducted within a representative sample of the US population would be helpful to determine the impact of demographic characteristics, as well as legal status of marijuana in the state of residence, on perceptions of drug decriminalization/legalization. The fact that self-reported substance use was not verified, and was from an anonymous population, is another limitation, in addition to the fact that all persons who used opioids or stimulants were grouped together, due to small numbers, instead of being able to assess those who used heroin and cocaine, specifically. We were also unable to look at how the use of multiple substances (especially those with primary use of alcohol, a legal substance, in addition to illegal substances) affected attitudes toward drug legalization/decriminalization.

This study appears to be the first to systematically study opinions of persons from across the US who use substances, and those who do not, about the legalization and decriminalization of multiple substances, and results have relevance for current and future policies. Legalization/decriminalization of marijuana was supported, but not in the case of other drugs, despite changes in apparent attitudes in other countries. As more information is learned about potential health benefits of certain substances that may drive policy changes in favor of their legalization/decriminalization, it is critical that persons who are directly affected by any policy changes (i.e. those who use substances) be included in these discussions to provide their unique perspectives. Studies among persons in SUD treatment, or those with varying SUD severity, are also warranted, as they may prove even more insightful to inform policies on legalization/decriminalization and the use of currently illicit drugs as treatment for SUDs. It is also important to monitor and track the evolution in changes in attitudes and beliefs over time. These nuances may impact public health messaging and the ability to target certain groups.

Supplementary Material

Supplemental table, conflict of interest and source of funding:.

This work was supported by internal funding from the Johns Hopkins University School of Medicine. No conflicts declared.

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The War On Drugs: 50 Years Later

After 50 years of the war on drugs, 'what good is it doing for us'.

During the War on Drugs, the Brownsville neighborhood in New York City saw some of the highest rates of incarceration in the U.S., as Black and Hispanic men were sent to prison for lengthy prison sentences, often for low-level, nonviolent drug crimes. Spencer Platt/Getty Images hide caption

During the War on Drugs, the Brownsville neighborhood in New York City saw some of the highest rates of incarceration in the U.S., as Black and Hispanic men were sent to prison for lengthy prison sentences, often for low-level, nonviolent drug crimes.

When Aaron Hinton walked through the housing project in Brownsville on a recent summer afternoon, he voiced love and pride for this tightknit, but troubled working-class neighborhood in New York City where he grew up.

He pointed to a community garden, the lush plots of vegetables and flowers tended by volunteers, and to the library where he has led after-school programs for kids.

But he also expressed deep rage and sorrow over the scars left by the nation's 50-year-long War on Drugs. "What good is it doing for us?" Hinton asked.

Revisiting Two Cities At The Front Line Of The War On Drugs

Critics Say Chauvin Defense 'Weaponized' Stigma For Black Americans With Addiction

As the United States' harsh approach to drug use and addiction hits the half-century milestone, this question is being asked by a growing number of lawmakers, public health experts and community leaders.

In many parts of the U.S., some of the most severe policies implemented during the drug war are being scaled back or scrapped altogether.

Hinton, a 37-year-old community organizer and activist, said the reckoning is long overdue. He described watching Black men like himself get caught up in drugs year after year and swept into the nation's burgeoning prison system.

"They're spending so much money on these prisons to keep kids locked up," Hinton said, shaking his head. "They don't even spend a fraction of that money sending them to college or some kind of school."

Aaron Hinton, a 37-year-old veteran activist and community organizer, said it's clear Brownsville needed help coping with the cocaine, heroin and other drug-related crime that took root here in the 1970s and 1980s. His own family was devastated by addiction. Brian Mann hide caption

Aaron Hinton, a 37-year-old veteran activist and community organizer, said it's clear Brownsville needed help coping with the cocaine, heroin and other drug-related crime that took root here in the 1970s and 1980s. His own family was devastated by addiction.

Hinton has lived his whole life under the drug war. He said Brownsville needed help coping with cocaine, heroin and drug-related crime that took root here in the 1970s and 1980s.

His own family was scarred by addiction.

"I've known my mom to be a drug user my whole entire life," Hinton said. "She chose to run the streets and left me with my great-grandmother."

Four years ago, his mom overdosed and died after taking prescription painkillers, part of the opioid epidemic that has killed hundreds of thousands of Americans.

Hinton said her death sealed his belief that tough drug war policies and aggressive police tactics would never make his family or his community safer.

The nation pivots (slowly) as evidence mounts against the drug war

During months of interviews for this project, NPR found a growing consensus across the political spectrum — including among some in law enforcement — that the drug war simply didn't work.

"We have been involved in the failed War on Drugs for so very long," said retired Maj. Neill Franklin, a veteran with the Baltimore City Police and the Maryland State Police who led drug task forces for years.

He now believes the response to drugs should be handled by doctors and therapists, not cops and prison guards. "It does not belong in our wheelhouse," Franklin said during a press conference this week.

Aaron Hinton has lived his whole life under the drug war. He has watched many Black men like himself get caught up in drugs year after year, swept into the nation's criminal justice system. Brian Mann/NPR hide caption

Aaron Hinton has lived his whole life under the drug war. He has watched many Black men like himself get caught up in drugs year after year, swept into the nation's criminal justice system.

Some prosecutors have also condemned the drug war model, describing it as ineffective and racially biased.

"Over the last 50 years, we've unfortunately seen the 'War on Drugs' be used as an excuse to declare war on people of color, on poor Americans and so many other marginalized groups," said New York Attorney General Letitia James in a statement sent to NPR.

On Tuesday, two House Democrats introduced legislation that would decriminalize all drugs in the U.S., shifting the national response to a public health model. The measure appears to have zero chance of passage.

But in much of the country, disillusionment with the drug war has already led to repeal of some of the most punitive policies, including mandatory lengthy prison sentences for nonviolent drug users.

In recent years, voters and politicians in 17 states — including red-leaning Alaska and Montana — and the District of Columbia have backed the legalization of recreational marijuana , the most popular illicit drug, a trend that once seemed impossible.

Last November, Oregon became the first state to decriminalize small quantities of all drugs , including heroin and methamphetamines.

Many critics say the course correction is too modest and too slow.

"The war on drugs was an absolute miscalculation of human behavior," said Kassandra Frederique, who heads the Drug Policy Alliance, a national group that advocates for total drug decriminalization.

She said the criminal justice model failed to address the underlying need for jobs, health care and safe housing that spur addiction.

Indeed, much of the drug war's architecture remains intact. Federal spending on drugs — much of it devoted to interdiction — is expected to top $37 billion this year.

The Coronavirus Crisis

Drug overdose deaths spiked to 88,000 during the pandemic, white house says.

The U.S. still incarcerates more people than any other nation, with nearly half of the inmates in federal prison held on drug charges .

But the nation has seen a significant decline in state and federal inmate populations, down by a quarter from the peak of 1.6 million in 2009 to roughly 1.2 million last year .

There has also been substantial growth in public funding for health care and treatment for people who use drugs, due in large part to passage of the Affordable Care Act .

"The best outcomes come when you treat the substance use disorder [as a medical condition] as opposed to criminalizing that person and putting them in jail or prison," said Dr. Nora Volkow, who has been head of the National Institute of Drug Abuse since 2003.

Volkow said data shows clearly that the decision half a century ago to punish Americans who struggle with addiction was "devastating ... not just to them but actually to their families."

From a bipartisan War on Drugs to Black Lives Matter

Wounds left by the drug war go far beyond the roughly 20.3 million people who have a substance use disorder .

The campaign — which by some estimates cost more than $1 trillion — also exacerbated racial divisions and infringed on civil liberties in ways that transformed American society.

Frederique, with the Drug Policy Alliance, said the Black Lives Matter movement was inspired in part by cases that revealed a dangerous attitude toward drugs among police.

In Derek Chauvin's murder trial, the former officer's defense claimed aggressive police tactics were justified because of small amounts of fentanyl in George Floyd's body. Critics described the argument as an attempt to "weaponize" Floyd's substance use disorder and jurors found Chauvin guilty.

Breonna Taylor, meanwhile, was shot and killed by police in her home during a drug raid . She wasn't a suspect in the case.

"We need to end the drug war not just for our loved ones that are struggling with addiction, but we need to remove the excuse that that is why law enforcement gets to invade our space ... or kill us," Frederique said.

The United States has waged aggressive campaigns against substance use before, most notably during alcohol Prohibition in the 1920s and 1930s.

The modern drug war began with a symbolic address to the nation by President Richard Nixon on June 17, 1971.

Speaking from the White House, Nixon declared the federal government would now treat drug addiction as "public enemy No. 1," suggesting substance use might be vanquished once and for all.

"In order to fight and defeat this enemy," Nixon said, "it is necessary to wage a new all-out offensive."

President Richard Nixon's speech on June 17, 1971, marked the symbolic start of the modern drug war. In the decades that followed Democrats and Republicans embraced ever-tougher laws penalizing people with addiction.

Studies show from the outset drug laws were implemented with a stark racial bias , leading to unprecedented levels of mass incarceration for Black and brown men .

As recently as 2018, Black men were nearly six times more likely than white men to be locked up in state or federal correctional facilities, according to the U.S. Justice Department .

Researchers have long concluded the pattern has far-reaching impacts on Black families, making it harder to find employment and housing, while also preventing many people of color with drug records from voting .

In a 1994 interview published in Harper's Magazine , Nixon adviser John Ehrlichman suggested racial animus was among the motives shaping the drug war.

"We knew we couldn't make it illegal to be either against the [Vietnam] War or Black," Ehrlichman said. "But by getting the public to associate the hippies with marijuana and Blacks with heroin, and then criminalizing both heavily, we could disrupt those communities."

Despite those concerns, Democrats and Republicans partnered on the drug war decade after decade, approving ever-more-severe laws, creating new state and federal bureaucracies to interdict drugs, and funding new armies of police and federal agents.

At times, the fight on America's streets resembled an actual war, especially in poor communities and communities of color.

Police units carried out drug raids with military-style hardware that included body armor, assault weapons and tanks equipped with battering rams.

President Richard Nixon explaining aspects of the special message sent to the Congress on June 17, 1971, asking for an extra $155 million for a new program to combat the use of drugs. He labeled drug abuse "a national emergency." Harvey Georges/AP hide caption

President Richard Nixon explaining aspects of the special message sent to the Congress on June 17, 1971, asking for an extra $155 million for a new program to combat the use of drugs. He labeled drug abuse "a national emergency."

"What we need is another D-Day, not another Vietnam, not another limited war fought on the cheap," declared then-Sen. Joe Biden, D-Del., in 1989.

Biden, who chaired the influential Senate Judiciary Committee, later co-authored the controversial 1994 crime bill that helped fund a vast new complex of state and federal prisons, which remains the largest in the world.

On the campaign trail in 2020, Biden stopped short of repudiating his past drug policy ideas but said he now believes no American should be incarcerated for addiction. He also endorsed national decriminalization of marijuana.

While few policy experts believe the drug war will come to a conclusive end any time soon, the end of bipartisan backing for punitive drug laws is a significant development.

More drugs bring more deaths and more doubts

Adding to pressure for change is the fact that despite a half-century of interdiction, America's streets are flooded with more potent and dangerous drugs than ever before — primarily methamphetamines and the synthetic opioid fentanyl.

"Back in the day, when we would see 5, 10 kilograms of meth, that would make you a hero if you made a seizure like that," said Matthew Donahue, the head of operations at the Drug Enforcement Administration.

As U.S. Corporations Face Reckoning Over Prescription Opioids, CEOs Keep Cashing In

"Now it's common for us to see 100-, 200- and 300-kilogram seizures of meth," he added. "It doesn't make a dent to the price."

Efforts to disrupt illegal drug supplies suffered yet another major blow last year after Mexican officials repudiated drug war tactics and began blocking most interdiction efforts south of the U.S.-Mexico border.

"It's a national health threat, it's a national safety threat," Donahue told NPR.

Last year, drug overdoses hit a devastating new record of 90,000 deaths , according to preliminary data from the Centers for Disease Control and Prevention.

The drug war failed to stop the opioid epidemic

Critics say the effectiveness of the drug war model has been called into question for another reason: the nation's prescription opioid epidemic.

Beginning in the late 1990s, some of the nation's largest drug companies and pharmacy chains invested heavily in the opioid business.

State and federal regulators and law enforcement failed to intervene as communities were flooded with legally manufactured painkillers, including Oxycontin.

"They were utterly failing to take into account diversion," said West Virginia Republican Attorney General Patrick Morrisey, who sued the DEA for not curbing opioid production quotas sooner.

"It's as close to a criminal act as you can find," Morrisey said.

Courtney Hessler, a reporter for The (Huntington) Herald-Dispatch in West Virgina, has covered the opioid epidemic. As a child she wound up in foster care after her mother became addicted to opioids. "You know there's thousands of children that grew up the way that I did. These people want answers," Hessler told NPR. Brian Mann/NPR hide caption

Courtney Hessler, a reporter for The (Huntington) Herald-Dispatch in West Virgina, has covered the opioid epidemic. As a child she wound up in foster care after her mother became addicted to opioids. "You know there's thousands of children that grew up the way that I did. These people want answers," Hessler told NPR.

One of the epicenters of the prescription opioid epidemic was Huntington, a small city in West Virginia along the Ohio River hit hard by the loss of factory and coal jobs.

"It was pretty bad. Eighty-one million opioid pills over an eight-year period came into this area," said Courtney Hessler, a reporter with The (Huntington) Herald-Dispatch.

Public health officials say 1 in 10 residents in the area still battle addiction. Hessler herself wound up in foster care after her mother struggled with opioids.

In recent months, she has reported on a landmark opioid trial that will test who — if anyone — will be held accountable for drug policies that failed to keep families and communities safe.

"I think it's important. You know there's thousands of children that grew up the way that I did," Hessler said. "These people want answers."

A needle disposal box at the Cabell-Huntington Health Department sits in the front parking lot in 2019 in Huntington, W.Va. The city is experiencing a surge in HIV cases related to intravenous drug use following a recent opioid crisis in the state. Ricky Carioti/The Washington Post via Getty Images hide caption

A needle disposal box at the Cabell-Huntington Health Department sits in the front parking lot in 2019 in Huntington, W.Va. The city is experiencing a surge in HIV cases related to intravenous drug use following a recent opioid crisis in the state.

During dozens of interviews, community leaders told NPR that places like Huntington, W.Va., and Brownsville, N.Y., will recover from the drug war and rebuild.

They predicted many parts of the country will accelerate the shift toward a public health model for addiction: treating drug users more often like patients with a chronic illness and less often as criminals.

But ending wars is hard and stigma surrounding drug use, heightened by a half-century of punitive policies, remains deeply entrenched. Aaron Hinton, the activist in Brownsville, said it may take decades to unwind the harm done to his neighborhood.

"It's one step forward, two steps back," Hinton said. "But I remain hopeful. Why? Because what else am I going to do?"

• drug policy
• war on drugs
• public health
• opioid epidemic

The Wider Impact of Drug Legalization on the Criminal Justice System

by aseneviratne | Mar 16, 2021 | All , Criminal Justice Reform , Public Health

This paper will discuss the effect of legalizing possession of all drugs on the criminal justice system. This paper will begin with a brief history of the modern War on Drugs to establish why drug possession should not be a criminal matter. Discussion of the impact of legalization will primarily focus on reduction in caseload and the resulting benefits.

The modern War on Drugs began during the Nixon presidency with the passage of the Controlled Substances Act of 1970 (“CSA”), which established federal regulatory power over the manufacture, importation, possession, use, and distribution of certain substances. [1] The CSA was ostensibly a public health response to the growing heroin epidemic in the mid-1960s. [2] In 1973, Nixon created the Drug Enforcement Agency (“DEA”) to carry out enforcement of the CSA. [3]

The War on Drugs expanded into a system of mass incarceration under the Comprehensive Crime Control Act of 1984, which increased criminal penalties associated with cannabis possession and established mandatory minimum sentences. [4] From 1980 to 1997, “the number of [individuals incarcerated] for nonviolent drug law offenses [jumped] from 50,000 . . . to over 400,000.” [5] “By 1991, the United States had surpassed the former Soviet Union and South Africa as having the largest prison population in the world.” [6] The racial impact from the ‘Tough on Crime’ approach reared its ugly head as “the sentences of black inmates were 41% longer than that of whites.” [7]

Most critically, the War on Drugs has been ineffective in deterring drug use. [8] In 2000, law enforcement seized over 4.4 million tablets of ecstasy, an increase from 350,000 tablets just two years prior. [9] From 2010 to 2015, the lifetime prevalence of 8th graders who have used illicit drugs consistently hovered around 20%. [10] Over that same period, the number of drug-induced deaths increased from 40,393 to 55,403. [11]

In light of the racial bias stemming from the War on Drugs as well as its failure to achieve its supposed intended purpose, drug possession is a worthy candidate for exploration into forms of treatment outside of the criminal realm. [12]

Legalization v. Decriminalization

For the purposes of this paper, assume that legalization means that the possession, sale, and manufacturing of all drugs would be regulated similarly to alcohol or cigarettes. At the outset, it is important to note why legalization is preferable to decriminalization. Decriminalization of drug possession simply means that possession is not a criminal offense. [13] In 2001, Portugal decriminalized all drugs, and the public health benefits have been palpable. [14] Under a system of decriminalization, however, the manufacturing and sale of drugs is still criminal. [15] As a result, the drug market is still propped up and supplied by drug cartels, just as it is in a system of prohibition. [16] Legalization goes further than decriminalization by legalizing drug production. [17] Allowing companies to manufacture drugs removes the viability of the black market drug trade, such as in Mexico where one cartel alone “had annual earnings calculated to be as high as $3 billion.” [18] In 2018, the DEA spent over $445 million on international enforcement to decrease the impact of these cartels in the United States. [19] Legalization treats the cause of the disease, and the consequent reduction in symptoms would decrease the need for these yearly international enforcement expenditures.

Court Decluttering

In 2017, there were 1,632,921 drug related violations in the U.S., of which 85.4% were for possession; an average of 3,820 possession arrests per day. [20] Under a system of legalization, American courts would no longer be inundated with this entire class of offense. The benefits of legalization on the courts are multifaceted: for the drug possessor, who is no longer a victim of the fruitless War on Drugs; for the judge, who enjoys greater flexibility with a decluttered docket; and most importantly, for the public defender, who can take advantage of the much-needed decrease in workload to provide better counsel to clients. [21]

In 2016, Louisiana had an estimated annual workload of 147,220 total cases to be divided among its 363 public defenders. [22] This meant that “the Louisiana public defense system [could only] handle 21 percent of [its] workload in compliance with [state] guidelines.” [23]

“Unsurprisingly, excessive workloads diminish the quality of legal representation.” [24] With such an enormous caseload, public defenders do not have the time available to conduct basic defense tasks necessary for a trial, creating an incentive for guilty pleas. [25] Guilty pleas based on time constraint rather than merit render “an ethical and constitutional plea bargain . . . impossible.” [26]

Given the sheer number of drug arrests, legalization would likely drastically reduce the public defense system’s case load. [27] With this caseload reduction, public defenders would be able to work towards closing the gap between the actual and necessary amount of time devoted to each client. [28] With more time to evaluate each case, public defenders can more effectively assess the appropriateness of a plea deal on the merits, rather than time constraints. [29] The increased legitimacy and efficiency of the public defense system resulting from legalization will likely lead to broader indirect benefits for all public defense clients, no matter what crime they are accused of. [30 ]

An argument against legalization posits that these reductions in public defense caseload would be offset by an increase in crime, such as petty crime and driving under the influence, due to legalization. [31] This line of reasoning rests on the assumption that if there are no criminal penalties for drug possession or use, then the number of drug users will increase. [32] With more people using drugs, more people will become addicts, who are more prone to committing crimes. [33]

The assumption that the absence of criminal sanctions entails more people using drugs is unsound, as under Portugal’s system of decriminalization, “in almost every category of drug, and for drug usage overall, the lifetime prevalence rates . . . were higher” prior to decriminalization. [34] Cocaine usage in Portugal was significantly lower than usage in the United States, which was head and shoulders above the rest of the world. [35] The heroin usage rate in Portugal from 1999 to 2005 actually decreased from 2.5% to 1.8% among those in the 16-18 age group. [36] Decreased drug use does not necessarily follow from from punitive state response, just as increased drug use does not necessarily follow from rehabilitative state response. [37] If the pool of drug users remains consistent after legalization, then pool of criminal drug users would likely remain consistent as well.

Still, even assuming that the number of drug addicts would increase post-legalization, leading to an increase in the number of petty crime and driving under the influence (“DUI”) cases, these cases differ quantitatively and qualitatively from possession and crimes currently associated with the black market for drugs.

Quantitatively, the increased caseload for petty crime and driving under the influence would still be significantly less the number of possession charges the system currently deals with. [38] Further, under the current system of prohibition, courts and society at large must deal with violent crimes associated with the black market for narcotics: in 2016, 11.2% of all federal prisoners held in state correctional facilities were incarcerated for drug trafficking and drug offenses other than possession. [39] Under a system of legalization, the profitability of the black market is greatly reduced, which would likely result in these arguably more serious crimes becoming less prevalent and further decreasing the caseload related to drugs despite a potential increase in petty crime and driving under the influence cases. [40]

Qualitatively, DUIs directly present significant and real risks of harm to other members of society in a way that drug possession does not. “In 2016, 10,497 people died in alcohol-impaired driving crashes, accounting for 28% of all traffic-related deaths in the United States.” [41] Given the increased culpability and blameworthiness of these crimes, it is not a waste of the public defense system resources to criminalize DUI and bear the associated costs of doing so; rather, these are precisely the crimes which fall under the purview of the criminal justice system. [42]

In conclusion, the War on Drugs has disproportionately impacted minorities [43] and has not effectively reduced drug consumption and usage. [44] In light of this, the United States should take steps to legalize drug possession and emulate the success of other nations who have treated drug use as public health matter, instead a criminal one. [45] Further, the benefits of legalization extend beyond drug users. [46] Globally, legalization helps to curtail the influence of cartels. [47] Domestically, legalization frees up the criminal justice system, permitting more efficient and legitimate legal representation for all individuals. [48]

[1] See Controlled Substances Act of 1970, 21 U.S.C. § 811.

[2] See Pub. Broadcasting Serv., Interview Dr. Robert DuPont , FRONTLINE: DRUG WARS, https://www.pbs.org/wgbh/pages/frontline/shows/drugs/interviews/dupont.html (last visited Mar. 20, 2020).

[3] See History , DRUG ENF’T AGENCY, dea.gov/history (last visited Jun. 29, 2020).

[4] See Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, 98 Stat. 1976.

[5] A Brief History of the Drug War , DRUG POL’Y ALL., https://www.drugpolicy.org/issues/brief-history-drug-war, (last visited Mar. 23, 2020).

[6] Charles Ogletree, Getting Tough on Crime: Does It Work? 38 Boston B. J. 9, 27 (1994).

[8] See Ross C. Anderson, We Are All Casualties of Friendly Fire in the War on Drugs , 13 Utah B.J. 10, 11 (2000).

[9] Id. at 11.

[10] See OFFICE OF NAT’L DRUG CONTROL POL’Y, NATIONAL DRUG CONTROL STRATEGY: PERFORMANCE REPORTING SYSTEM REPORT 27 (2016); What is Prevalence? NAT’L INST. MENTAL HEALTH (Nov. 2017), https://www.nimh.nih.gov/health/statistics/what-is-prevalence.shtml (explaining that “[l]ifetime prevalence is the proportion of a population who, at some point in life has ever had the characteristic.”).

[11] Id. at 12.

[12] See Anderson, supra note 8, at 11.

[13] See GLENN GREENWALD, DRUG DECRIMINALIZATION IN PORTUGAL: LESSONS FOR CREATING FAIR AND SUCCESSFUL DRUG POLICIES 2 (2009), https://www.cato.org/publications/white-paper/drug-decriminalization-portugal-lessons-creating-fair-successful-drug-policies.

[14] See id. at 14-15 (explaining that since decriminalization, Portugal has experienced a slight decline in drug use, a significant decline in drug related pathologies such as HIV, and a substantial increase in use of treatment programs).

[15] See i d. at 2.

[16] See German Lopez, What People Get Wrong About Prohibition , VOX (Oct. 19, 2015), https://www.vox.com/2015/10/19/9566935/prohibition-myths-misconceptions-facts.

[17] See GREENWALD, supra note 13, at 2.

[18] JUNE S. BEITTEL, CONG. RSCH. SERV., R41576, MEXICO: ORGANIZED CRIME AND DRUG TRAFFICKING ORGANIZATIONS 19 (2019).

[19] DRUG ENF’T ADMIN., FY 2019 BUDGET REQUEST, 4 (2018).

[20] See 2017 Crime in the United States: Persons Arrested , FED. BUREAU INVESTIGATION: UNIFORM CRIME REPORTING, https://ucr.fbi.gov/crime-in-the-u.s/2017/crime-in-the-u.s.-2017/topic-pages/persons-arrested (last visited Aug. 15, 2020).

[21] See Lisa C. Wood et al., Meet-and-Plead: The Inevitable Consequence of Crushing Defender Workloads , 42 LITIG. 20, 23 (2016).

[22] See A.B.A. & POSTLETHWAITE & NETTERVILLE, THE LOUISIANA PROJECT: A STUDY OF THE LOUISIANA DEFENDER SYSTEM AND ATTORNEY WORKLOAD STANDARDS 2 (2017).

[24] Wood et al., supra note 21, at 23.

[25] See id.

[27] See id. at 26.

[28] See id .

[29] See id .

[30] See id.

[31] See Paul Stares, Drug Legalization?: Time for a Real Debate , BROOKINGS INST. (Mar. 1, 1996), https://www.brookings.edu/articles/drug-legalization-time-for-a-real-debate/.

[32] See id.

[33] See id.

[34] GREENWALD, supra note 13, at 14-15 (emphasis added).

[35] See id. at 22-24.

[36] Id. at 14.

[37] See Stares, supra note 31 .

[38] See 2016 Crime in the United States: Table 18 , FED. BUREAU INVESTIGATION: UNIFORM CRIME REPORTING, https://ucr.fbi.gov/crime-in-the-u.s/2016/crime-in-the-u.s.-2016/topic-pages/tables/table-18 (last visited Aug. 15 2020) (illustrating that arrests for drug abuse violations are nearly eight times as high as arrests for burglary – a petty crime that is often related to drugs).

[39 ] JENNIFER BRONSON & E. ANN CARSON, BUREAU OF JUSTICE STATISTICS, NCJ 252156 , PRISONERS IN 2017 21 (2019).

[40] See Lopez, supra note 16 .

[41] Impaired Driving: Get the Facts, CENTERS FOR DISEASE CONTROL AND PREVENTION ( Aug. 24, 2020, 12:00 AM), https://www.cdc.gov/motorvehiclesafety/impaired_driving/impaired-drv_factsheet.html.

[42] See Janine Geske, Achieving the Goals of Criminal Justice: A Role for Restorative Justice , 30 Quinnipiac L. Rev. 527, 530-31 (2012).

[43] See Anderson, supra note 8, at 11 .

[44] See id.

[45] See GREENWALD, supra note 13, at 14-15.

[46] See Stares, supra note 31.

[47] See i d.

[48] See Wood et al., supra note 21, at 23, 26; s ee also Lopez, supra note 16.

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Race, Mass Incarceration, and the Disastrous War on Drugs

Unravelling decades of racially biased anti-drug policies is a monumental project.

• Nkechi Taifa
• Cutting Jail & Prison Populations
• Social & Economic Harm

This essay is part of the  Brennan Center’s series  examining  the punitive excess that has come to define America’s criminal legal system .

I have a long view of the criminal punishment system, having been in the trenches for nearly 40 years as an activist, lobbyist, legislative counsel, legal scholar, and policy analyst. So I was hardly surprised when Richard Nixon’s domestic policy advisor  John Ehrlichman  revealed in a 1994 interview that the “War on Drugs” had begun as a racially motivated crusade to criminalize Blacks and the anti-war left.

“We knew we couldn’t make it illegal to be either against the war or blacks, but by getting the public to associate the hippies with marijuana and blacks with heroin and then criminalizing them both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night in the evening news. Did we know we were lying about the drugs? Of course we did,” Ehrlichman said.

Before the War on Drugs, explicit discrimination — and for decades, overtly racist lynching — were the primary weapons in the subjugation of Black people. Then mass incarceration, the gradual progeny of a number of congressional bills, made it so much easier. Most notably, the 1984  Comprehensive Crime Control and Safe Streets Act  eliminated parole in the federal system, resulting in an upsurge of  geriatric prisoners . Then the 1986  Anti-Drug Abuse Act  established mandatory minimum sentencing schemes, including the infamous 100-to-1 ratio between crack and powder cocaine sentences.  Its expansion  in 1988 added an overly broad definition of conspiracy to the mix. These laws flooded the federal system with people convicted of low-level and nonviolent drug offenses.

During the early 1990s, I walked the halls of Congress lobbying against various omnibus crime bills, which culminated in the granddaddy of them all — the  Violent Crime Control and Safe Streets Act  of 1994. This bill featured the largest expansion of the federal death penalty in modern times, the gutting of habeas corpus, the evisceration of the exclusionary rule, the trying of 13-year-olds as adults, and 100,000 new cops on the streets, which led to an explosion in racial profiling. It also included the elimination of Pell educational grants for prisoners, the implementation of the federal three strikes law, and monetary incentives to states to enact “truth-in-sentencing” laws, which subsidized an astronomical rise in prison construction across the country, lengthened the amount of time to be served, and solidified a mentality of meanness.

The prevailing narrative at the time was “tough on crime.” It was a narrative that caused then-candidate Bill Clinton to leave his presidential campaign trail to oversee the execution of a mentally challenged man in Arkansas. It was the same narrative that brought about the crack–powder cocaine disparity, supported the transfer of youth to adult courts, and popularized the myth of the Black child as “superpredator.”

With the proliferation of mandatory minimum sentences during the height of the War on Drugs, unnecessarily lengthy prison terms were robotically meted out with callous abandon. Shockingly severe sentences for drug offenses — 10, 20, 30 years, even life imprisonment — hardly raised an eyebrow. Traumatizing sentences that snatched parents from children and loved ones, destabilizing families and communities, became commonplace.

Such punishments should offend our society’s standard of decency. Why haven’t they? Most flabbergasting to me was the Supreme Court’s 1991  decision  asserting that mandatory life imprisonment for a first-time drug offense was not cruel and unusual punishment. The rationale was ludicrous. The Court actually held that although the punishment was cruel, it was not unusual.

The twisted logic reminded me of another Supreme Court  case  that had been decided a few years earlier. There, the Court allowed the execution of a man — despite overwhelming evidence of racial bias — because of fear that the floodgates would be opened to racial challenges in other aspects of criminal sentencing as well. Essentially, this ruling found that lengthy sentences in such cases are cruel, but they are usual. In other words, systemic racism exists, but because that is the norm, it is therefore constitutional.

In many instances, laws today are facially neutral and do not appear to discriminate intentionally. But the disparate treatment often built into our legal institutions allows discrimination to occur without the need of overt action. These laws look fair but nevertheless have a racially discriminatory impact that is structurally embedded in many police departments, prosecutor’s offices, and courtrooms.

Since the late 1980s, a combination of federal law enforcement policies, prosecutorial practices, and legislation resulted in Black people being disproportionately arrested, convicted, and imprisoned for possession and distribution of crack cocaine. Five grams of crack cocaine — the weight of a couple packs of sugar — was, for sentencing purposes, deemed the equivalent of 500 grams of powder cocaine; both resulted in the same five-year sentence. Although household surveys from the National Institute for Drug Abuse have revealed larger numbers of documented white crack cocaine users, the overwhelming number of arrests nonetheless came from Black communities who were disproportionately impacted by the facially neutral, yet illogically harsh, crack penalties.

For the system to be just, the public must be confident that at every stage of the process — from the initial investigation of crimes by police to the prosecution and punishment of those crimes — people in like circumstances are treated the same. Today, however, as yesterday, the criminal legal system strays far from that ideal, causing African Americans to often question, is it justice or “just-us?”

Fortunately, the tough-on-crime chorus that arose from the War on Drugs is disappearing and a new narrative is developing. I sensed the beginning of this with the 2008  Second Chance Reentry  bill and 2010  Fair Sentencing Act , which reduced the disparity between crack and powder cocaine. I smiled when the 2012 Supreme Court ruling in  Miller v. Alabama  came out, which held that mandatory life sentences without parole for children violated the Eighth Amendment’s prohibition against cruel and unusual punishment. In 2013, I was delighted when Attorney General Eric Holder announced his  Smart on Crime  policies, focusing federal prosecutions on large-scale drug traffickers rather than bit players. The following year, I applauded President Obama’s executive  clemency initiative  to provide relief for many people serving inordinately lengthy mandatory-minimum sentences. Despite its failure to become law, I celebrated the  Sentencing Reform and Corrections Act  of 2015, a carefully negotiated bipartisan bill passed out of the Senate Judiciary Committee in 2015; a few years later some of its provisions were incorporated as part of the 2018  First Step Act . All of these reforms would have been unthinkable when I first embarked on criminal legal system reform.

But all of this is not enough. We have experienced nearly five decades of destructive mass incarceration. There must be an end to the racist policies and severe sentences the War on Drugs brought us. We must not be content with piecemeal reform and baby-step progress.

Indeed, rather than steps, it is time for leaps and bounds. End all mandatory minimum sentences and invest in a health-centered approach to substance use disorders. Demand a second-look process with the presumption of release for those serving life-without-parole drug sentences. Make sentences retroactive where laws have changed. Support categorical clemencies to rectify past injustices.

It is time for bold action. We must not be satisfied with the norm, but work toward institutionalizing the demand for a standard of decency that values transformative change.

Nkechi Taifa is president of The Taifa Group LLC, convener of the Justice Roundtable, and author of the memoir,  Black Power, Black Lawyer: My Audacious Quest for Justice.

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Do Americans Have a Constitutional Right to Use Drugs?

A fter decades of waging a ruinous and counterproductive war on drugs, the U.S. government is finally taking steps in a new direction.

President Biden has issued mass pardons for marijuana possession offenses and urged the Drug Enforcement Administration to reschedule pot, so that it may be legally prescribed by physicians. The Food and Drug Administration has been teeing up clinical trials for MDMA and magic mushrooms. Lawmakers from both parties have endorsed “harm reduction” strategies to combat the opioid crisis. Compared to the zero-tolerance policies of the recent past, this emerging approach to drug control is less focused on criminal punishment and more attentive to the costs and benefits of different substances and interventions.

Although few recall it now, the same basic approach almost won out a half-century ago—in the courts. Litigants brought hundreds of constitutional challenges to punitive drug laws during the 1960s and 1970s. And they secured pathbreaking rulings from federal and state judges who deemed the laws arbitrary, authoritarian, and cruel.

Almost all of those rulings were narrowed or overturned by the 1980s, paving the way for the escalation of drug penalties and militarization of drug enforcement under President Reagan and his successors. But this overlooked chapter in our constitutional history is worth revisiting. It shows how constitutional law could have denied the worst excesses of the war on drugs, instead of becoming ever more defined by them, and offers clues about how to resist draconian drug policies today.

The 1960–70s turn toward the Constitution to fight punitive drug laws was in many ways a return. Throughout the late 1800s and early 1900s, opponents of such laws challenged them in court on grounds of government overreach. Even though they increasingly approved restrictions on the manufacture and sale of intoxicants, the authorities “were unanimous in maintaining that constitutional provisions protected possession,” as one scholar  observe d in 1919. “[T]he inalienable rights possessed by the citizens … of seeking and pursuing their safety and happiness … would be but an empty sound,” the Kentucky Court of Appeals  explained  ten years earlier, “if the Legislature could prohibit the citizen the right of owning or drinking liquor.”

This legal framework fell apart in the 1910s, never to return, after a wave of prohibitory laws swept the nation and courts embraced a broader view of the government’s regulatory powers. By the mid-twentieth century, state and federal lawmakers had constitutional carte blanche to penalize drug possession and consumption as well as production and distribution. They did so with mounting severity into the 1960s.

Over the course of that decade, however, a variety of developments put the question of drug rights back into play. Surging use of illicit drugs by Vietnam veterans, students, and college-educated professionals created new constituencies for reform. Government bodies issued report after report urging relaxation of the drug laws, especially the marijuana laws, as did establishment groups ranging from the American Bar Association and the American Medical Association to the Consumers Union and the National Council of Churches.

The National Commission on Marihuana and Drug Abuse, for instance,  concluded  in 1972 that intermittent use of marijuana “carries minimal risk to the public health” and recommended decriminalization. The Nixon administration’s health department sponsored a study—blocked from publication but leaked to journalists—that  found  young people’s use of psychedelics can be “highly moral, productive, and personally fulfilling.” The Ford administration put out a white paper  urging  that drug policy be refocused on substances such as heroin that have “the highest costs to both society and the user.”

Reform-minded lawyers saw an opportunity. Building on the Warren Court’s civil liberties decisions, they began to argue that specific drug bans may violate the Constitution even if the government has expansive authority to regulate drugs in general. And many judges responded with newfound sympathy. The defendant in a low-level drug case, two Michigan justices  warned  in an opinion that drew national headlines, “could have been any mother’s son or daughter.”

Some judges in the 1970s held that classifying marijuana as a narcotic, or together with narcotics, is so illogical as to violate the Constitution’s Equal Protection Clause. That clause, the Supreme Court had instructed, requires criminal classifications to be at least minimally reasonable. Drawing on the latest medical research, these judges determined that lumping marijuana with the most dangerous substances fails even this minimal requirement while, in the  words  of the Connecticut Superior Court, “undermin[ing] a fundamental respect for the law” and imposing “staggering” social costs. Had this line of rulings prevailed, marijuana would have been removed from the most restrictive drug schedules—fifty years before President Biden’s plea to the D.E.A. to do just that.

Some judges in the 1970s argued that criminal bans on “soft drugs” violate the right to privacy implicit in the Due Process Clause. In light of the Court’s recent privacy decisions involving contraception and abortion, retired Justice Tom Clark  opined  in 1972 that his former colleagues “might find it difficult to uphold a prosecution for possession” of marijuana. The Alaska Supreme Court refused to uphold such a prosecution three years later, in a ruling that is still  seen  by international lawyers as “[t]he early land mark case on decriminalization for constitutional reasons.” Had the constitutional case for marijuana decriminalization prevailed, millions of Americans—including disproportionate numbers of Black and Brown Americans—would have been spared harassment, humiliation, and arrest at the hands of police officers looking (or  claiming  to look) for pot.

Some judges in the 1970s struck down criminal penalties for drug offenses as “cruel and unusual punishments” in contravention of the Eighth Amendment. After the Supreme Court held in 1962 that it is impermissibly cruel to punish people for the status of being an addict, a series of lower courts reasoned that it must likewise be cruel to punish them for procuring or consuming a drug to which they’re addicted. Other courts threw out long prison sentences for nonviolent, nontrafficking offenses as needlessly excessive. Had these decisions taken hold, harm reduction principles would have become part of our supreme law and helped check the explosion of the prison population.

Finally, some judges in the 1970s ruled that drug bans infringe the “free exercise” of religion guaranteed by the First Amendment when the drugs at issue serve a sacramental function. These rulings relied on a 1964 decision by the California Supreme Court, which protected the Native American Church’s ceremonial use of peyote. Although that decision was widely followed, judges were wary of extending it to other sects or substances. Had the effort to extend such religious exemptions succeeded, many more adults would have had legal access to the “classical psychedelics” that are now entering therapeutic practice.

By the mid-1980s, the drug war was in full swing and these constitutional arguments had faded into obscurity. They were well within the mainstream of constitutional thought in the 1970s, however. Even among the judges who rejected these arguments, a striking share not only acknowledged their force but also expressed open skepticism of the drug laws they upheld.

In defense of their decisions, these judges cited the value of judicial restraint and warned of the legal chaos that could result if they recognized too many claims of personal liberty or constitutionalized hard calls about the dangerousness of various substances. They had a point, even if they tended to overstate it. The pro-regulatory model of judicial review that liberals had championed ever since the New Deal, which demanded only a “rational basis” to justify most government measures, had not been designed to address policy failure. Many judges didn’t know what to do with a set of criminal justice and public health policies that were  themselves  alleged to be criminogenic and a threat to public health.

Constitutional rights review had been  designed , instead, to respond to claims of mistreatment brought by “discrete and insular minorities,” who share a reasonably cohesive social identity. The late-twentieth-century campaigns for gay rights and gun rights fit this bill. Illicit drug users, by contrast, were not so much a discrete and insular minority as an anonymous and diffuse plurality of the population: dispersed throughout all segments of society, poorly organized, largely in the closet. No deep sense of solidarity, no identitarian glue, knit together drug users, attorneys, and activists in a coalition capable of applying sustained constitutional pressure. When the court victories dried up, the drug-rights movement collapsed.

Today’s drug reformers thus find themselves in a strange situation. There is bipartisan consensus, on the one hand, that draconian drug laws have been a travesty and, on the other, that the Constitution has nothing to say about them—even as high courts abroad have been leading the charge for drug liberalization. “Constitutional courts are increasingly ruling that the decision to use narcotic drugs or psychotropic substances falls within the scope of the moral autonomy of adults,” the Inter-American Juridical Committee of the Organization of American States  noted  in 2014. In democracies as diverse as Argentina, Canada, Georgia, and South Africa, constitutional protections for personal drug use are taking off. In the United States, the very idea of drug rights strikes most lawyers as outlandish.

History suggests that constitutional advocacy could still do important work, notwithstanding the progress that has been made. One role is to guard against future backsliding. American drug policy has been characterized by cycles of racialized moral panic and reactionary legislation, punctuated by periods of liberalization. Now that the country finds itself in another moment when humane, evidence-based drug reform is on the table, proponents would do well to entrench as much of it in constitutional law as they can before the next panic arrives.

Beyond trying to lock in policy gains, constitutional advocates could harness recent scholarship to attack the harshest laws still on the books. They might, for instance, draw on research into the framers’ surprisingly expansive understanding of “cruel and unusual punishment,” when they wrote the Eighth Amendment in 1791, or on a burgeoning interdisciplinary literature that depicts psychedelic drug bans as impediments to “cognitive liberty.” State courts may be especially receptive to the constitutional claims that have carried the day in other countries, about how the private burdens imposed by certain drug laws are grossly disproportionate to their public benefits.

Judicial decisions can’t solve deep-seated social problems like opioid overdose. But they can at least serve as a brake on overincarceration and force lawmakers to acknowledge when their drug policies do more harm than good.

Importantly, constitutional arguments can also be addressed to audiences other than courts. Many of the institutional considerations that have made judges reticent to wade into drug debates don’t apply to the other branches. Legislators and administrators have an independent duty to respect the rights of drug users and to reject policies that, as President Carter once  put  it, are “more damaging to an individual than the use of the drug itself.” In its ongoing review of marijuana’s scheduling under federal law, the D.E.A. should be forced to reckon not only with the scientific findings on medical marijuana but also with the myriad constitutional concerns raised by the government’s existing approach.

Our disastrous experience with the war on drugs invites us to recover a sense of constitutional possibility. The most effective constitutional arguments against ineffective, punitive drug laws have varied widely across eras, and they may vary again. The one constant is that such laws have always been in deep tension with some of our nation’s deepest normative commitments.

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Drug Legalization?: Time for a real debate

Subscribe to governance weekly, paul stares ps paul stares.

March 1, 1996

• 11 min read

Whether Bill Clinton “inhaled” when trying marijuana as a college student was about the closest the last presidential campaign came to addressing the drug issue. The present one, however, could be very different. For the fourth straight year, a federally supported nationwide survey of American secondary school students by the University of Michigan has indicated increased drug use. After a decade or more in which drug use had been falling, the Republicans will assuredly blame the bad news on President Clinton and assail him for failing to carry on the Bush and Reagan administrations’ high-profile stand against drugs. How big this issue becomes is less certain, but if the worrisome trend in drug use among teens continues, public debate about how best to respond to the drug problem will clearly not end with the election. Indeed, concern is already mounting that the large wave of teenagers—the group most at risk of taking drugs—that will crest around the turn of the century will be accompanied by a new surge in drug use.

As in the past, some observers will doubtless see the solution in much tougher penalties to deter both suppliers and consumers of illicit psychoactive substances. Others will argue that the answer lies not in more law enforcement and stiffer sanctions, but in less. Specifically, they will maintain that the edifice of domestic laws and international conventions that collectively prohibit the production, sale, and consumption of a large array of drugs for anything other than medical or scientific purposes has proven physically harmful, socially divisive, prohibitively expensive, and ultimately counterproductive in generating the very incentives that perpetuate a violent black market for illicit drugs. They will conclude, moreover, that the only logical step for the United States to take is to “legalize” drugs—in essence repeal and disband the current drug laws and enforcement mechanisms in much the same way America abandoned its brief experiment with alcohol prohibition in the 1920s.

Although the legalization alternative typically surfaces when the public’s anxiety about drugs and despair over existing policies are at their highest, it never seems to slip off the media radar screen for long. Periodic incidents—such as the heroin-induced death of a young, affluent New York City couple in 1995 or the 1993 remark by then Surgeon General Jocelyn Elders that legalization might be beneficial and should be studied—ensure this. The prominence of many of those who have at various times made the case for legalization—such as William F. Buckley, Jr., Milton Friedman, and George Shultz—also helps. But each time the issue of legalization arises, the same arguments for and against are dusted off and trotted out, leaving us with no clearer understanding of what it might entail and what the effect might be.

As will become clear, drug legalization is not a public policy option that lends itself to simplistic or superficial debate. It requires dissection and scrutiny of an order that has been remarkably absent despite the attention it perennially receives. Beyond discussion of some very generally defined proposals, there has been no detailed assessment of the operational meaning of legalization. There is not even a commonly accepted lexicon of terms to allow an intellectually rigorous exchange to take place. Legalization, as a consequence, has come to mean different things to different people. Some, for example, use legalization interchangeably with “decriminalization,” which usually refers to removing criminal sanctions for possessing small quantities of drugs for personal use. Others equate legalization, at least implicitly, with complete deregulation, failing in the process to acknowledge the extent to which currently legally available drugs are subject to stringent controls.

Unfortunately, the U.S. government—including the Clinton administration—has done little to improve the debate. Although it has consistently rejected any retreat from prohibition, its stance has evidently not been based on in- depth investigation of the potential costs and benefits. The belief that legalization would lead to an instant and dramatic increase in drug use is considered to be so self-evident as to warrant no further study. But if this is indeed the likely conclusion of any study, what is there to fear aside from criticism that relatively small amounts of taxpayer money had been wasted in demonstrating what everyone had believed at the outset? Wouldn’t such an outcome in any case help justify the continuation of existing policies and convincingly silence those—admittedly never more than a small minority—calling for legalization?

A real debate that acknowledges the unavoidable complexities and uncertainties surrounding the notion of drug legalization is long overdue. Not only would it dissuade people from making the kinds of casual if not flippant assertions—both for and against—that have permeated previous debates about legalization, but it could also stimulate a larger and equally critical assessment of current U.S. drug control programs and priorities.

First Ask the Right Questions

Many arguments appear to make legalization a compelling alternative to today’s prohibitionist policies. Besides undermining the black-market incentives to produce and sell drugs, legalization could remove or at least significantly reduce the very problems that cause the greatest public concern: the crime, corruption, and violence that attend the operation of illicit drug markets. It would presumably also diminish the damage caused by the absence of quality controls on illicit drugs and slow the spread of infectious diseases due to needle sharing and other unhygienic practices. Furthermore, governments could abandon the costly and largely futile effort to suppress the supply of illicit drugs and jail drug offenders, spending the money thus saved to educate people not to take drugs and treat those who become addicted.

However, what is typically portrayed as a fairly straightforward process of lifting prohibitionist controls to reap these putative benefits would in reality entail addressing an extremely complex set of regulatory issues. As with most if not all privately and publicly provided goods, the key regulatory questions concern the nature of the legally available drugs, the terms of their supply, and the terms of their consumption (see page 21).

What becomes immediately apparent from even a casual review of these questions—and the list presented here is by no means exhaustive—is that there is an enormous range of regulatory permutations for each drug. Until all the principal alternatives are clearly laid out in reasonable detail, however, the potential costs and benefits of each cannot begin to be responsibly assessed. This fundamental point can be illustrated with respect to the two central questions most likely to sway public opinion. What would happen to drug consumption under more permissive regulatory regimes? And what would happen to crime?

Relaxing the availability of psychoactive substances not already commercially available, opponents typically argue, would lead to an immediate and substantial rise in consumption. To support their claim, they point to the prevalence of opium, heroin, and cocaine addiction in various countries before international controls took effect, the rise in alcohol consumption after the Volstead Act was repealed in the United States, and studies showing higher rates of abuse among medical professionals with greater access to prescription drugs. Without explaining the basis of their calculations, some have predicted dramatic increases in the number of people taking drugs and becoming addicted. These increases would translate into considerable direct and indirect costs to society, including higher public health spending as a result of drug overdoses, fetal deformities, and other drug-related misadventures such as auto accidents; loss of productivity due to worker absenteeism and on-the-job accidents; and more drug-induced violence, child abuse, and other crimes, to say nothing about educational impairment.

Advocates of legalization concede that consumption would probably rise, but counter that it is not axiomatic that the increase would be very large or last very long, especially if legalization were paired with appropriate public education programs. They too cite historical evidence to bolster their claims, noting that consumption of opium, heroin, and cocaine had already begun falling before prohibition took effect, that alcohol consumption did not rise suddenly after prohibition was lifted, and that decriminalization of cannabis use in 11 U.S. states in the 1970s did not precipitate a dramatic rise in its consumption. Some also point to the legal sale of cannabis products through regulated outlets in the Netherlands, which also does not seem to have significantly boosted use by Dutch nationals. Public opinion polls showing that most Americans would not rush off to try hitherto forbidden drugs that suddenly became available are likewise used to buttress the pro-legalization case.

Neither side’s arguments are particularly reassuring. The historical evidence is ambiguous at best, even assuming that the experience of one era is relevant to another. Extrapolating the results of policy steps in one country to another with different sociocultural values runs into the same problem. Similarly, within the United States the effect of decriminalization at the state level must be viewed within the general context of continued federal prohibition. And opinion polls are known to be unreliable.

More to the point, until the nature of the putative regulatory regime is specified, such discussions are futile. It would be surprising, for example, if consumption of the legalized drugs did not increase if they were to become commercially available the way that alcohol and tobacco products are today, complete with sophisticated packaging, marketing, and advertising. But more restrictive regimes might see quite different outcomes. In any case, the risk of higher drug consumption might be acceptable if legalization could reduce dramatically if not remove entirely the crime associated with the black market for illicit drugs while also making some forms of drug use safer. Here again, there are disputed claims.

Opponents of more permissive regimes doubt that black market activity and its associated problems would disappear or even fall very much. But, as before, addressing this question requires knowing the specifics of the regulatory regime, especially the terms of supply. If drugs are sold openly on a commercial basis and prices are close to production and distribution costs, opportunities for illicit undercutting would appear to be rather small. Under a more restrictive regime, such as government-controlled outlets or medical prescription schemes, illicit sources of supply would be more likely to remain or evolve to satisfy the legally unfulfilled demand. In short, the desire to control access to stem consumption has to be balanced against the black market opportunities that would arise. Schemes that risk a continuing black market require more questions—about the new black markets operation over time, whether it is likely to be more benign than existing ones, and more broadly whether the trade-off with other benefits still makes the effort worthwhile.

The most obvious case is regulating access to drugs by adolescents and young adults. Under any regime, it is hard to imagine that drugs that are now prohibited would become more readily available than alcohol and tobacco are today. Would a black market in drugs for teenagers emerge, or would the regulatory regime be as leaky as the present one for alcohol and tobacco? A “yes” answer to either question would lessen the attractiveness of legalization.

What about the International Repercussions?

Not surprisingly, the wider international ramifications of drug legalization have also gone largely unremarked. Here too a long set of questions remains to be addressed. Given the longstanding U.S. role as the principal sponsor of international drug control measures, how would a decision to move toward legalizing drugs affect other countries? What would become of the extensive regime of multilateral conventions and bilateral agreements? Would every nation have to conform to a new set of rules? If not, what would happen? Would more permissive countries be suddenly swamped by drugs and drug consumers, or would traffickers focus on the countries where tighter restrictions kept profits higher? This is not an abstract question. The Netherlands’ liberal drug policy has attracted an influx of “drug tourists” from neighboring countries, as did the city of Zurich’s following the now abandoned experiment allowing an open drug market to operate in what became known as “Needle Park.” And while it is conceivable that affluent countries could soften the worst consequences of drug legalization through extensive public prevention and drug treatment programs, what about poorer countries?

Finally, what would happen to the principal suppliers of illicit drugs if restrictions on the commercial sale of these drugs were lifted in some or all of the main markets? Would the trafficking organizations adapt and become legal businesses or turn to other illicit enterprises? What would happen to the source countries? Would they benefit or would new producers and manufacturers suddenly spring up elsewhere? Such questions have not even been posed in a systematic way, let alone seriously studied.

Irreducible Uncertainties

Although greater precision in defining more permissive regulatory regimes is critical to evaluating their potential costs and benefits, it will not resolve the uncertainties that exist. Only implementation will do that. Because small-scale experimentation (assuming a particular locality’s consent to be a guinea pig) would inevitably invite complaints that the results were biased or inconclusive, implementation would presumably have to be widespread, even global, in nature.

Yet jettisoning nearly a century of prohibition when the putative benefits remain so uncertain and the potential costs are so high would require a herculean leap of faith. Only an extremely severe and widespread deterioration of the current drug situation, nationally and internationally—is likely to produce the consensus—again, nationally and internationally that could impel such a leap. Even then the legislative challenge would be stupendous. The debate over how to set the conditions for controlling access to each of a dozen popular drugs could consume the legislatures of the major industrial countries for years.

None of this should deter further analysis of drug legalization. In particular, a rigorous assessment of a range of hypothetical regulatory regimes according to a common set of variables would clarify their potential costs, benefits, and trade- offs. Besides instilling much-needed rigor into any further discussion of the legalization alternative, such analysis could encourage the same level of scrutiny of current drug control programs and policies. With the situation apparently deteriorating in the United States as well as abroad, there is no better time for a fundamental reassessment of whether our existing responses to this problem are sufficient to meet the likely challenges ahead.

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Guest Essay

It’s Not Just About Pot. Our Entire Drug Policy Needs an Overhaul.

By Maia Szalavitz

Ms. Szalavitz is a contributing Opinion writer. She covers addiction and public policy.

The failure of American drug law, particularly marijuana policy, has long been obvious.

Finally, this October, President Biden ordered the Department of Health and Human Services and the attorney general to review what’s known as the “scheduling” status of cannabis. This legal process could lead to federal regulation of sales for recreational use or a national law that requires a prescription for marijuana. Mr. Biden also recently signed a law to ease onerous restrictions on marijuana research, and legislation is pending to allow cannabis businesses, now forced to use cash, to get access to banks .

Reform is much needed, with more than two-thirds of Americans favoring legalizing and regulating recreational use. Nearly half of Americans can or will soon be able to legally buy marijuana to get high in their state, which conflicts with federal law.

The details of new regulation, however, matter enormously. The current law, the Controlled Substances Act, is antiquated: It makes no scientific sense and grew out of legislation that was often driven by racist and anti-immigrant propaganda. While policymakers consider how to regulate marijuana specifically, they also need to rethink how the U.S. government classifies and controls psychoactive substances in general — not just drugs like marijuana and opioids, but also alcohol and tobacco.

The Controlled Substances Act was initially intended to regulate pleasurable substances that are risky. It has five categories, or “schedules,” which are supposed to reflect varying hazard levels. But it is filled with contradictions.

Schedule I, the most restrictive, bans the sale and possession of certain drugs for recreational use and limits their medical use to research. Those drugs include marijuana, heroin and LSD and most other psychedelics — all of which have wildly different risks. Each also has significant medical benefits .

The remaining four schedules put varying restrictions on medications. But some medically permissible drugs are more dangerous and addictive than some illegal substances — and the recreationally legal drugs alcohol and tobacco can be more dangerous than some prohibited ones and are not scheduled at all.

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Decriminalisation or legalisation: injecting evidence in the drug law reform debate

Professor & Specialist in Drug Policy, UNSW Sydney

Disclosure statement

Alison Ritter receives funding from the NHMRC, the ARC and The Colonial Foundation Trust. She was a participant in the Australia 21 Roundtable held in January, 2012.

UNSW Sydney provides funding as a member of The Conversation AU.

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We should all be concerned about our laws on illegal drugs because they affect all of us – people who use drugs; who have family members using drugs; health professionals seeing people for drug-related problems; ambulance and police officers in the front line of drug harms; and all of us who pay high insurance premiums because drug-related crime is extensive.

Drug-related offences also take up the lion’s share of the work of police, courts and prisons. But what can we do? Some people feel that we should legalise drugs – treat them like alcohol and tobacco, as regulated products. And legalisation doesn’t necessarily need to apply for every illegal drug.

Why legalise?

One of the arguments for legalisation is that it would eliminate (or at least significantly reduce) the illegal black market and criminal networks associated with the drug trade. Other arguments include moving the problem away from police and the criminal justice system and concentrating responses within health.

Governments could accrue taxation revenue from illegal drugs as they currently do from gambling, alcohol and tobacco. A regulated government monopoly could secure direct income; our research suggests this may be as high as $600 million a year for a regulated cannabis market in New South Wales.

The strongest argument against legalisation is that it would result in significant increases in drug use. We know that currently legal drugs, such as alcohol and tobacco, are widely consumed and associated with an extensive economic burden to society – including hospital admissions, alcoholism treatment programs and public nuisance. So why create an environment where this may also come to pass for currently illegal drugs?

The moral argument against legalisation suggests the use of illegal drugs is amoral, anti-social and otherwise not acceptable in today’s society. The concern is that legalisation would “send the wrong message”.

Unfortunately, there’s no direct research evidence on legalisation because no country has legalised drugs yet. But suppositions can be made about the extent of cost-savings to society.

Indeed, some of our research on a regulated legal cannabis market suggests that there may not be the significant savings under a legalisation regime that some commentators have argued. But these are hypothetical exercises.

• Decriminalisation

An alternative to legalisation is decriminalisation. Experts don’t agree on the terminology and there’s much confusion. But, in essence, decriminalisation refers to a reduction of legal penalties. This can be done either by changing them to civil penalties, such as fines, or by diverting drug use offenders away from a criminal conviction and into education or treatment options (also known as “diversion”).

Decriminalisation largely applies to drug use and possession offences, not to the sale or supply of drugs. Arguments in favour of decriminalisation include its focus on drug users rather than drug suppliers. The idea is to provide users with a more humane and sensible response to their drug use.

Decriminalisation has the potential to reduce the burden on police and the criminal justice system. It also removes the negative consequences (including stigma) associated with criminal convictions for drug use.

One argument against decriminalisation is that it doesn’t address the black market and criminal networks of drug selling. There are also concerns that it may lead to increased drug use but this assumes that current criminal penalties operate as a deterrent for some people.

The moral arguments noted above also apply to decriminalisation – lesser penalties may suggest that society approves of drug use.

Many countries, including Australia, have decriminalised cannabis use: measures include providing diversion programs (all Australian states and territories), and moving from criminal penalties to civil penalties (such as fines in South Australia, Australian Capital Territory and the Northern Territory).

Our team’s research on Portugal suggests that drug use rates don’t rise under decriminalisation, and there are measurable savings to the criminal justice system.

In Australia also, there hasn’t been a rise in cannabis use rates despite states and territories introducing civil penalties for users. And research on diverting drug use offenders away from a criminal conviction and into treatment has shown that these individuals are just as likely to succeed in treatment as those who attend voluntarily.

At the same time, research has also noted a negative side effect to the way in which decriminalisation currently operates in Australia – “net widening” - whereby more people are swept up into the criminal justice system than would have occurred otherwise under full prohibition because discretion by police is less likely and/or they do not fulfil their obligations.

Despite the largely supportive evidence base, politicians appear reluctant to proceed along the decriminalisation path. Some commentators have speculated that this is because of public opinion – decriminalisation is regarded as an unpopular policy choice .

But public opinion is largely in support of decriminalisation, where it concerns cannabis (though not decriminalisation for other illegal drugs). In the last national survey , more than 80% of Australians supported decriminalisation options for cannabis. The other reason for equivocal policy support, I believe, is a lack of clarity about the issues.

There’s poor understanding about the different models of decriminalisation and some basic confusion exists. Many people equate decriminalisation with legalisation, but as detailed above, they are very different in policy, intent and action.

Decriminalisation is also sometimes incorrectly confused with harm reduction services, such as injecting centres or prescribed heroin programs.

The Australia21 Report released last week to stimulate informed public debate is an important step foward. In order for the debate to progress, we need clarity of terms, and dispassionate presentation of what evidence we have. Every policy has both risks and benefits and we need to talk about these.

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• Section 2: Views of Marijuana – Legalization, Decriminalization, Concerns
• About the Surveys

The federal government’s annual survey on drug use in the United States finds that the use of illicit drugs has increased over the past decade, in part because of a rise in marijuana use. The government treats marijuana as an illicit drug; marijuana is now legal for medicinal use in 18 states and for recreational use in two others (Colorado and Washington).

According to the 2012 drug use survey by the Substance Abuse and Mental Health Services Administration , approximately 24 million Americans (9.2% of the general public aged 12 or older) reported using an illicit drug in the past month. This is up from 8.3% 10 years earlier.

The number of Americans who had used marijuana in the last month increased from 14.5 million in 2007 (5.8%) to 18.9 million in 2012 (7.3%). Among the so-called “hard drugs,” heroin use more than doubled from 166,000 to 335,000 individuals per month between 2002 and 2012. Cocaine use declined slightly over this same period. In 2012, 6.8 million Americans used prescription-type medications that have legitimate medical uses, such as pain relievers including Oxycontin and Vicodin, but for non-medical purposes (referred to as psychotherapeutic drugs). These figures are statistically equivalent to usage levels going back to 2002 (2.7%).

About a third of all Americans (32%) say that the problem of drug abuse is a crisis across the country and another 55% see it as a serious problem. When asked to think about their own neighborhoods, including the local schools, about one-in-ten (12%) see drug abuse as a crisis in their community and another 38% call it a serious problem.

Opinions about the problem of drug abuse differ little across most demographic and political groups. But young people are less likely than older Americans to say that drug abuse is a crisis nationally. Just 20% of those under 30 think drug abuse is a crisis compared with at least a third in older age groups. And 60% of young people say the problem of drug abuse in their neighborhoods is either a minor problem or not a problem, the lowest percentage of any age group.

Hispanics and those without college experience are more likely to view drug abuse as a serious problem in their neighborhood. A majority of Hispanics (63%) say that drug abuse is either a crisis or serious problem in their neighborhood, compared with about half of both non-Hispanic blacks (51%) and non-Hispanic whites (47%).

Among those with a high school degree or less education, 58% say drug abuse is a neighborhood crisis (14%) or serious problem (43%). College graduates see drug abuse as less of a problem in the neighborhoods where they live: 10% see a crisis, 35% a serious problem.

Race and Perceptions of Local Drug Abuse

Two decades ago, blacks were far more likely than whites to say that the problem of drug abuse was a crisis in their neighborhoods and schools; in 1995, 28% of blacks and just 9% of whites saw drug abuse as a crisis locally.

The share of blacks saying drug abuse in their communities is a crisis declined later in the 1990s. By 2001, 16% of blacks regarded the problem of local drug abuse as a crisis; that is little different from the current measure (15%).

Compared with 2001, a greater share of whites – particularly less educated whites – say the problem of drug abuse in their communities is a crisis. Currently, 12% of non-college whites say drug abuse is a crisis in their neighborhood, double the percentage that said this 13 years ago.

Views of Drug Policies: States Dropping Mandatory Drug Sentences

More than six-in-ten (63%) say that state governments moving away from mandatory prison terms for non-violent drug crimes is a good thing, while just 32% say these policy changes are a bad thing. This is a substantial shift from 2001 when the public was evenly divided (47% good thing vs. 45% bad thing).

Across nearly all demographic groups majorities say that the move away from mandatory prison terms is a good thing, and in most cases these percentages have increased by double digits since 2001. Majorities of both men (64%) and women (62%) view these policy changes as a good thing – up 13 points among men and 20 points among women. In 2001, women were less supportive than men of sentencing revisions. Half of women said it was a bad thing compared with 40% of men.

As is the case with opinions on other issues related to illegal drug use, older Americans and Republicans are most likely to have reservations about state governments moving away from mandatory drug sentences.

About half of those 65 and older (49%) say that the move away from mandatory drug sentences is a good thing, up only modestly from 2001 (43%). By contrast, majorities among younger age groups have a positive view of the elimination of mandatory drug sentences, and this view has increased by double digits among those under 65 since 2001.

About half of Republicans (49%) have a positive view of the move away from mandatory drug sentences; in 2001, 41% viewed this change positively. Nearly seven-in-ten independents (69%) and 66% of Democrats say this is a good thing, up from 48% each in 2001.

The pattern is similar in opinions about how the government should deal with people who use illegal drugs such as heroin and cocaine. Two-thirds (67%) say the government should focus more on providing treatment for people who use these type of drugs. Just 26% think the focus should be more on prosecuting illegal drug users.

Half or more in virtually every demographic and partisan group says the priority should be treatment, not prosecution. But there are differences across racial and ethnic lines: 81% of blacks say the government should focus more on treatment for drug users, compared with 66% of whites and 61% of Hispanics.

In addition, while large majorities of Democrats (77%) and independents (69%) want the government’s focus more on treatment, a smaller share of Republicans (51%) favor this approach. Those 65 and older are less likely than those in younger age groups to say that the government should focus on providing treatment for drug users rather than prosecuting them.

Those who view drug abuse across the country as a crisis are about as likely as those who do not to favor treatment rather than prosecution for those using illegal drugs like heroin and cocaine. Among those who say drug abuse is a crisis in their neighborhood, 64% favor the treatment option, about the same percentage as those who view the problem less seriously (68%).

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The Evidence—and Lack Thereof—About Cannabis

Research is still needed on cannabis’s risks and benefits. 

Lindsay Smith Rogers

Although the use and possession of cannabis is illegal under federal law, medicinal and recreational cannabis use has become increasingly widespread.

Thirty-eight states and Washington, D.C., have legalized medical cannabis, while 23 states and D.C. have legalized recreational use. Cannabis legalization has benefits, such as removing the product from the illegal market so it can be taxed and regulated, but science is still trying to catch up as social norms evolve and different products become available. 

In this Q&A, adapted from the August 25 episode of Public Health On Call , Lindsay Smith Rogers talks with Johannes Thrul, PhD, MS , associate professor of Mental Health , about cannabis as medicine, potential risks involved with its use, and what research is showing about its safety and efficacy. 

Do you think medicinal cannabis paved the way for legalization of recreational use?

The momentum has been clear for a few years now. California was the first to legalize it for medical reasons [in 1996]. Washington and Colorado were the first states to legalize recreational use back in 2012. You see one state after another changing their laws, and over time, you see a change in social norms. It's clear from the national surveys that people are becoming more and more in favor of cannabis legalization. That started with medical use, and has now continued into recreational use.

But there is a murky differentiation between medical and recreational cannabis. I think a lot of people are using cannabis to self-medicate. It's not like a medication you get prescribed for a very narrow symptom or a specific disease. Anyone with a medical cannabis prescription, or who meets the age limit for recreational cannabis, can purchase it. Then what they use it for is really all over the place—maybe because it makes them feel good, or because it helps them deal with certain symptoms, diseases, and disorders.

Does cannabis have viable medicinal uses?

The evidence is mixed at this point. There hasn’t been a lot of funding going into testing cannabis in a rigorous way. There is more evidence for certain indications than for others, like CBD for seizures—one of the first indications that cannabis was approved for. And THC has been used effectively for things like nausea and appetite for people with cancer.

There are other indications where the evidence is a lot more mixed. For example, pain—one of the main reasons that people report for using cannabis. When we talk to patients, they say cannabis improved their quality of life. In the big studies that have been done so far, there are some indications from animal models that cannabis might help [with pain]. When we look at human studies, it's very much a mixed bag. 

And, when we say cannabis, in a way it's a misnomer because cannabis is so many things. We have different cannabinoids and different concentrations of different cannabinoids. The main cannabinoids that are being studied are THC and CBD, but there are dozens of other minor cannabinoids and terpenes in cannabis products, all of varying concentrations. And then you also have a lot of different routes of administration available. You can smoke, vape, take edibles, use tinctures and topicals. When you think about the explosion of all of the different combinations of different products and different routes of administration, it tells you how complicated it gets to study this in a rigorous way. You almost need a randomized trial for every single one of those and then for every single indication.

What do we know about the risks of marijuana use?  

Cannabis use disorder is a legitimate disorder in the DSM. There are, unfortunately, a lot of people who develop a problematic use of cannabis. We know there are risks for mental health consequences. The evidence is probably the strongest that if you have a family history of psychosis or schizophrenia, using cannabis early in adolescence is not the best idea. We know cannabis can trigger psychotic symptoms and potentially longer lasting problems with psychosis and schizophrenia. 

It is hard to study, because you also don't know if people are medicating early negative symptoms of schizophrenia. They wouldn't necessarily have a diagnosis yet, but maybe cannabis helps them to deal with negative symptoms, and then they develop psychosis. There is also some evidence that there could be something going on with the impact of cannabis on the developing brain that could prime you to be at greater risk of using other substances later down the road, or finding the use of other substances more reinforcing. 

What benefits do you see to legalization?

When we look at the public health landscape and the effect of legislation, in this case legalization, one of the big benefits is taking cannabis out of the underground illegal market. Taking cannabis out of that particular space is a great idea. You're taking it out of the illegal market and giving it to legitimate businesses where there is going to be oversight and testing of products, so you know what you're getting. And these products undergo quality control and are labeled. Those labels so far are a bit variable, but at least we're getting there. If you're picking up cannabis at the street corner, you have no idea what's in it. 

And we know that drug laws in general have been used to criminalize communities of color and minorities. Legalizing cannabis [can help] reduce the overpolicing of these populations.

What big questions about cannabis would you most like to see answered?

We know there are certain, most-often-mentioned conditions that people are already using medical cannabis for: pain, insomnia, anxiety, and PTSD. We really need to improve the evidence base for those. I think clinical trials for different cannabis products for those conditions are warranted.

Another question is, now that the states are getting more tax revenue from cannabis sales, what are they doing with that money? If you look at tobacco legislation, for example, certain states have required that those funds get used for research on those particular issues. To me, that would be a very good use of the tax revenue that is now coming in. We know, for example, that there’s a lot more tax revenue now that Maryland has legalized recreational use. Maryland could really step up here and help provide some of that evidence.

Are there studies looking into the risks you mentioned?

Large national studies are done every year or every other year to collect data, so we already have a pretty good sense of the prevalence of cannabis use disorder. Obviously, we'll keep tracking that to see if those numbers increase, for example, in states that are legalizing. But, you wouldn't necessarily expect to see an uptick in cannabis use disorder a month after legalization. The evidence from states that have legalized it has not demonstrated that we might all of a sudden see an increase in psychosis or in cannabis use disorder. This happens slowly over time with a change in social norms and availability, and potentially also with a change in marketing. And, with increasing use of an addictive substance, you will see over time a potential increase in problematic use and then also an increase in use disorder.

If you're interested in seeing if cannabis is right for you, is this something you can talk to your doctor about?

I think your mileage may vary there with how much your doctor is comfortable and knows about it. It's still relatively fringe. That will very much depend on who you talk to. But I think as providers and professionals, everybody needs to learn more about this, because patients are going to ask no matter what.

Lindsay Smith Rogers, MA, is the producer of the Public Health On Call podcast , an editor for Expert Insights , and the director of content strategy for the Johns Hopkins Bloomberg School of Public Health.

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number 60 • Summer 2024

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This is Your Constitution on Drugs

Ilya shapiro, summer 2020.

Can something be legal and illegal at the same time? That may sound impossible, but it has increasingly become reality for cannabis in the United States. As more and more states legalize marijuana while Congress stands pat and the executive branch works out enforcement complexities, people across the country are asking themselves: What is this magical Schrödinger's weed?

The answer lies not in the nature of marijuana itself, but in America's system of dual sovereignty, which divides powers between the federal and state governments. When two overlapping sovereigns have policymaking authority, their laws and enforcement policies are bound to clash at times. Indeed, marijuana regulation is not the only policy area where state and federal laws have come into conflict, either historically or in recent years. States today are increasingly reasserting sovereignty in areas as diverse as health care, gun control, and immigration. Given the near inevitability of separate sovereigns' adopting contradictory laws, the real question is not whether conflicts will occur, but which law takes precedent when they do.

The Constitution's Supremacy Clause, which states that federal law trumps any state law to the contrary, appears to resolve the matter in favor of the federal government. Yet the answer is not so simple. The Supreme Court recognizes two limits on federal supremacy. First, the federal policy in question must have a valid constitutional basis, because the national government's powers are enumerated and thus limited. And second, even in areas where Congress can properly enact law, the Tenth Amendment prevents the federal government from using the states as instruments of governance.

The Supreme Court reiterated this latter limit — known as the "anti-commandeering" principle — as recently as the 2018 case of Murphy v. NCAA , a challenge to New Jersey's legalization of sports betting in the face of federal law that purported to stop states from taking such legislative action. Put simply, the doctrine asserts that Congress cannot compel the states to carry out federal law. In the marijuana context, a federal ban can only be implemented, practically speaking, through the greater law-enforcement resources of the states, as the federal government is responsible for just 1% of the 800,000 annual marijuana arrests. Meanwhile, an appropriations rider prevents the Justice Department from using federal funds to prosecute those who use medical marijuana in the 33 states (and the District of Columbia) where this activity is lawful. In any case, even in the shadow of the federal ban, state-level marijuana legalization has flourished, indicating that federal supremacy has its limits.

As for Congress's authority to prohibit the cultivation and use of marijuana in the first place — the first limit on federal supremacy noted above — the culprit is the Commerce Clause. More specifically, the authority derives from the Supreme Court's expansive interpretation of Congress's Article I, Section 8 power to regulate commerce "among the several States." This interpretation stems from the 1942 case Wickard v. Filburn , in which the Court ruled that Congress could regulate the wheat a farmer grew for noncommercial purposes because, in the aggregate, growing wheat affects interstate commerce.

Despite this flimsy rationale for allowing Congress's lawmaking reach to extend beyond trade among the states, the decision remains good law. Moving from wheat to weed, the Court declined the opportunity to push back on Wickard 63 years later, instead holding in Gonzales v. Raich that prohibiting the private cultivation and use of marijuana was still within the scope of the Commerce Clause; these, too, are economic activities that, in the aggregate, affect interstate commerce. It further held that banning the growth of marijuana for medical use — permitted in California, where the case originated — was a permissible way for the federal government to prevent access to marijuana for other uses.

The vote in Raich was 6-3. Justice John Paul Stevens wrote for the majority, with the other three liberal justices and Justice Anthony Kennedy joining his opinion. Meanwhile, Justice Antonin Scalia wrote a concurring opinion asserting that Congress can regulate noneconomic intrastate activities where failing to do so would undermine a broader regulation of interstate commerce. He grounded his concurrence in the Necessary and Proper Clause, which gives Congress the power "[t]o make all Laws which shall be necessary and proper for carrying into Execution" its enumerated powers.

Since Scalia had voted with the pro-federalism majorities that held unconstitutional Congress's creation of gun-free school zones ( United States v. Lopez in 1995) and a cause of action for victims of gender-motivated violence ( United States v. Morrison in 2000), Raich became known as the late justice's "drug-war exception" to the Constitution. To paraphrase Justice Clarence Thomas's Raich dissent, growing pot in one's own backyard for private use is emphatically not a form of interstate commerce. What's more, Thomas observed, "if the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce but because it is inextricably bound up with interstate commerce), then Congress' Article I powers — as expanded by the Necessary and Proper Clause — have no meaningful limits."

Ironically, the excessive regulation of commerce was one of the complaints the colonists laid at the feet of George III in the Declaration of Independence. Even if the founders had contemplated an expansive Commerce Clause that allowed for a federal police force and prison system to prosecute and punish local, often noncommercial, behavior, is it possible they understood the clause to allow for nearly half of federal prisoners to be imprisoned on drug charges? After all, when drawing up the list of crimes that had to be dealt with nationally, the framers chose just four: treason, piracy, counterfeiting, and crimes against the law of nations.

But this essay isn't just about marijuana federalism or the growth of federal power since the New Deal. Those are just gateways to a broader discussion of how drug policy — including at the state level, where most of the action is — has perverted constitutional understandings, undermining the idea that the federal government is one of limited powers, but also weakening our rights and freedoms more broadly. We are in the midst of a war on drugs that is at war with the Constitution. Indeed, the drug war has altered our constitutional consciousness.

THE PHILOSOPHICAL ROOTS OF THE WAR ON DRUGS

Our analysis starts at the Constitution's preamble. This introductory statement declares:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

While rhetorically powerful, the preamble has no direct legal effect; as Joseph Story wrote in his Commentaries on the Constitution of the United States , the "true office" of the preamble is "to expound the nature and extent and application of the powers actually conferred by the Constitution, and not substantively to create them." Similarly, the General Welfare Clause — which echoes the preamble's reference to the "general Welfare" in opening the enumeration of legislative powers in Article I, Section 8 — does not grant Congress a general power to pass whatever laws it wants. Indeed, the idea that the clause justifies any legislation that gains a congressional majority — as opposed to limiting federal reach to truly national issues — emerged during the progressive era. After 1937's so-called "switch in time that saved nine," no legislation would be invalidated on federalism grounds until Lopez in 1995.

Yet promoting the general welfare is ostensibly the underlying justification for federal drug regulation. Consider the Controlled Substances Act (CSA), the statute that first established federal drug policy in 1971. The CSA reads, "The illegal importation, manufacture, distribution, and possession and improper use of controlled substances have a substantial and detrimental effect on the health and general welfare of the American people." According to this statement, federal lawmakers clearly thought (and still think) they have the power to decide which assortments of chemicals Americans can and cannot put into their bodies, based on whether consuming such chemicals is good or bad for the nation's general welfare.

President Richard Nixon agreed. When he signed the CSA, he said he wanted to help "save the lives of hundreds of thousands of our young people who otherwise would become hooked on drugs and be physically, mentally and morally destroyed." That may be a noble cause — especially for those who believe drug use is not only unhealthy but immoral — yet neither the president nor Congress is empowered to act as an arbiter or enforcer of morality in this way. As Justice Kennedy announced in one of the few clear-cut rules he articulated — with respect to both the LGBT community ( Lawrence v. Texas in 2003) and religious believers ( Masterpiece Cakeshop v. Colorado Civil Rights Commission in 2018) — moral disapproval is not a sufficient basis for government action.

It appears that the General Welfare Clause serves as the philosophical justification for federal drug legislation, but it does not suffice as a legal justification. To find the latter, one must look to Congress's powers as enumerated in Article I of the Constitution.

CONGRESS'S ENUMERATED POWERS

We begin our analysis of the Constitution's enforceable provisions in the drug-war context with Article I, Section 8. This section contains a list of Congress's enumerated powers, those powers that the Constitution expressly delegates to the federal legislature. The war on drugs has touched on, and at times twisted beyond recognition, our understanding of several of these provisions.

As discussed above, Congress has the express constitutional authority "[t]o regulate Commerce...among the several States." Setting aside Wickard and its progeny — through which Congress has extended its presence far beyond any limit set by this clause — the fledgling marijuana industry has also brought to light the harm caused by Congress's absence in the interstate-commerce realm. Interestingly, the Commerce Clause does not just authorize Congress to regulate interstate commerce; it has also been read to ensure the free flow of goods and services across state lines. This "dormant" Commerce Clause prohibits states from discriminating against out-of-state commercial interests or otherwise attempting to regulate conduct beyond their borders. Yet the federal ban on transporting marijuana across state lines means that businesses in the industry must vertically integrate all commerce within balkanized state marketplaces where marijuana is legal, leading to inefficiencies and by-design state protectionism. In other words, states that have legalized marijuana must show preference to in-state growers and sellers by default. When Congress gets around to modernizing federal cannabis law, it will need to ensure that, for residents of those states that legalize marijuana, trade among them is free, fair, and regular.

Also as mentioned above, the Constitution lists four federal crimes — counterfeiting, treason, piracy, and violations of the law of nations. The original federal code expanded that list to approximately 30 crimes, focusing solely on those offenses worthy of national attention. By the early 1980s — just after the drug war was declared — the number of federal criminal offenses stood at around 3,000. Today, researchers estimate that 5,000 federal statutes include criminal penalties. This number doesn't even include the penalties contained in an estimated 300,000 federal regulations. While the number of federal crimes had certainly risen between 1789 and 1980, the drug war has triggered nothing short of an explosion in these numbers.

Article I, Section 8 also contains a Postal Clause, which delegates to Congress the power "[t]o establish Post Offices." The skyrocketing number of mail- and wire-fraud crimes in the federal criminal code — the intersection of the Postal and Commerce Clauses — can in significant part be traced to the war on drugs. And that war has also affected the privacy of our mail. In the 1878 case Ex parte Jackson , the Supreme Court held that "[n]o law of Congress can place in the hands of officials connected with the postal service any authority to invade the secrecy of letters and such sealed packages in the mail." Yet with the Anti-Drug Abuse Act of 1988, Congress granted the U.S. Postal Service the authority to inspect any packages it thinks might contain drugs using dogs, scanning technology, and inferences akin to what the police use in establishing probable cause.

The next clause grants Congress the power to secure "for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." In other words, Congress can protect inventors' intellectual property by granting them patents, which gives them incentive to pursue new and potentially beneficial research. But because certain drugs are illegal at the federal level, most narcotics-related inventions cannot benefit from patent protection. Instead, the development of pharmaceuticals using illicit narcotics is contingent on executive-branch decisions regarding which drugs to prohibit and which research projects to allow. This gives the president, not Congress, authority over intellectual property.

Meanwhile, Article I, Section 8 could not be more clear in vesting Congress, not the executive, with the power to declare war. But it was President Nixon who first declared war on drugs. The phrase itself was initially just a rhetorical label, but it has since come to involve the extensive use of military force both within the United States and abroad. A prime example is Operation Just Cause — the 1989 invasion of Panama — where combating drug trafficking was one of President George Bush's stated goals. During the operation, nearly 26,000 American servicemen invaded Panama without any congressional declaration of war.

Then there's the Posse Comitatus Act, which deals with the government enlistment of civilians in law-enforcement tasks. The Act generally prevents the use of armed forces for domestic law enforcement but carves out an exception for military support of civilian agencies engaged in "drug interdiction and counter-drug activities." President Donald Trump invoked an exception to the Act in his 2019 emergency declaration regarding the southern border, which re-apportioned Defense Department funds to the construction of a wall between the United States and Mexico. The president justified his decision in part by pointing to the southern border as a "major entry point for...illicit narcotics."

The power "[t]o exercise exclusive Legislation" over the District of Columbia belongs to Congress as well, though in 1973, Congress granted the district home rule. D.C. is now largely governed by a mayor and city council, but Congress retains authority over the district's budget and can block any laws the council passes. This unique arrangement has had unusual consequences for marijuana policy. In 2014, D.C. residents passed Initiative 71, which legalized marijuana for recreational use. Congress then stepped in to prevent the district from regulating or taxing the drug. The result puts marijuana in a sort of legal limbo: Although people can legally possess and use marijuana in the nation's capital, it remains illegal to purchase it there.

In addition to exceeding the powers enumerated in Article I, Section 8, federal drug laws also allow the executive branch to bypass the legislative process, violating the separation of powers. For instance, the attorney general — in reality, bureaucrats at the Justice Department, the Food and Drug Administration, and the Drug Enforcement Administration — can add substances to the CSA schedules, in effect establishing new criminal offenses, without legislative or judicial review. Substances can also be de-scheduled or reclassified, thereby abolishing offenses or changing associated penalties and collateral consequences without congressional input.

In sum, there's no dispute that Congress has the constitutional authority to tax drugs, to borrow money to fund anti-drug programs, to regulate or restrict the interstate and international drug trade, and to otherwise exercise its Article I, Section 8 powers — in addition to passing all laws "necessary and proper" for carrying out these listed powers. But the source of its authority to prohibit the production, possession, sale, or use of drugs — at least within the states — remains questionable at best. The drug war has distorted our understanding of much of the Constitution, and that's even before we consider the Bill of Rights.

THE BILL OF RIGHTS

Although originally an afterthought, the Bill of Rights — comprising the first ten amendments to the Constitution — has come to represent America's enduring commitment to liberty. Yet here again, the war on drugs has chipped away at some of Americans' most cherished freedoms.

The First Amendment begins with the religion clauses, which bar Congress from interfering with the free exercise of religion and establishing a national religion. (Both clauses, like almost all Bill of Rights provisions, have also been applied to the states through the 14th Amendment.) Regarding the former, ongoing controversies over Obamacare's contraceptive mandate have thrust into prominence an unusual case called Employment Division v. Smith (1990). In that case, Native American employees of a drug-rehabilitation clinic were fired and rendered ineligible for unemployment insurance after they ingested peyote for religious purposes. The Supreme Court upheld that result, holding that neutral laws of general applicability — like Oregon's zero-tolerance drug policy — do not violate the right of religious exercise. Many, however, characterize the decision as undermining the Free Exercise Clause, even if it was written by Justice Scalia.

In response to public backlash against Smith , the House unanimously, and the Senate by a vote of 97-3, passed the Religious Freedom Restoration Act (RFRA), to ensure that courts would apply the highest level of scrutiny to laws that interfere with Americans' free exercise of religion. After the Supreme Court invalidated RFRA's application to the states in City of Boerne v. Flores (1997), 21 states adopted their own versions of the law, and state courts have added RFRA-like provisions in 10 others. As scholarly and public debate over Smith continues, the case itself would not have come about if Oregon hadn't adopted a zero-tolerance drug policy; even Prohibition-era laws allowed the production, sale, and use of sacramental wine.

There could also be an Establishment Clause problem with the drug war, because many diversion programs — which allow people to avoid being jailed for low-level drug crimes — require completing a 12-step program akin to Alcoholics Anonymous. It turns out that most of these programs require people to turn themselves over to God, ask God to cure them of moral defects, and otherwise share in a spiritual awakening. Several federal appeals courts have declared such coerced participation in religious activity by prisoners, parolees, and probationers unconstitutional.

In addition to protecting religious expression, the First Amendment also prohibits laws that interfere with the freedom of speech. Yet government actors appear all-too-ready to ignore this clause in situations involving drugs. In 2004, for instance, the American Civil Liberties Union and several drug-policy groups sued the U.S. Department of Transportation when the Washington Metropolitan Area Transit Authority (WMATA) refused to place an ad saying that "marijuana laws waste billions of taxpayer dollars to lock up non-violent Americans." Following the government's loss at trial, then-solicitor general and perennial appellate superstar Paul Clement refused to defend WMATA or congressional efforts to block similar ads nationwide, saying that he lacked a viable argument.

Public school students are also afforded expressive rights under the First Amendment; as Justice Abe Fortas declared in Tinker v. Des Moines Independent Community School District (1969), students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Unless, of course, it involves speech that alludes to illicit drugs. In Morse v. Frederick (2007), the Supreme Court upheld the suspension of a high-school student who displayed a banner reading "Bong Hits 4 Jesus" across the street from his school during the 2002 Olympic torch relay. Nobody really knows what the banner meant (if anything), but it could be interpreted as promoting drug use. A majority of the Court held that suppressing this kind of speech was a necessary part of the school's mission. In doing so, as Justice Stevens pointed out in dissent, the majority abandoned the general rule that speech advocating dangerous or unlawful activity could only be punished if it is likely to "incite imminent lawless action."

The First Amendment also preserves the right to assemble peacefully, yet many local ordinances targeting drug-gang activity throw the status of this right into question. A particularly egregious example occurred in the 1997 case of People ex rel. Gallo v. Acuna , where the California Supreme Court held that an injunction prohibiting suspected gang members from "[s]tanding, sitting, walking, driving, gathering or appearing anywhere in public view" with other suspected gang members did not violate the freedom of association.

The final clause of the First Amendment protects Americans' right "to petition the Government for a redress of grievances." Somehow, this message did not reach Washington state. In the run-up to a marijuana ballot measure that voters eventually approved, state police harassed and arrested activists collecting signatures to support legalization. Likewise, in Nevada, once it became clear that proponents of a similar measure would gather the requisite 10% of the population's signatures for approval, the government changed the rules and called for an additional 30,000 signatures. Fortunately, a judge set aside the new requirement, but the fact this case came about shows how far some officials will go to fight the drug war.

The Second Amendment prohibits the government from infringing the people's right to bear arms. But considering the fact that anyone convicted in any court of any offense where the potential — not actual — sentence is more than a year in prison cannot use a firearm, large swathes of Americans are forbidden from exercising this right. Moreover, anyone who is an unlawful user of, or is addicted to, any controlled substance cannot possess firearms or ammunition. This issue has come to the forefront recently in Hawaii, as the state both requires the registration of all firearms and allows the use of marijuana for medicinal purposes. Aside from the Second Amendment concerns such measures raise, the ban on firearms possession for those who use drugs reaches staggering levels of hypocrisy considering that Bill Clinton, Barack Obama, and George W. Bush have admitted to using illicit substances. But because they were never convicted, they were allowed to control the most powerful military in history — including its nuclear arsenal.

The war on drugs' biggest constitutional impact is undeniably in the area of criminal procedure, which implicates the Fourth Amendment. This amendment preserves the public's right against unreasonable searches and seizures. In Criminal Procedure  — a leading law-school casebook by Joseph Cook, Paul Marcus, and Melanie Wilson — 12 of 18 cases on probable cause, and 20 of 27 on warrantless searches and seizures, involve drugs. In most of these cases, the Court has whittled away or otherwise made exceptions to the Fourth Amendment.

Take the various exceptions to the amendment's warrant requirement for searches, many of which the Supreme Court either created or greatly expanded in cases arising from drug crimes. Typically, the Fourth Amendment guarantees protection from warrantless searches in places where people have a reasonable expectation of privacy. According to the amendment's text, these areas include one's person and one's home. Yet in United States v. Robinson (1973), the Court held it reasonable for police to search a person in custody not just for weapons that might pose a threat to the police, but for any contraband, even without reasonable suspicion that the person is carrying drugs. Ten years earlier, in Ker v. California , the Court established the imminent-destruction-of-evidence exception to the warrant requirement, which allows police to break into suspects' homes without knocking to prevent the destruction of narcotics or other contraband. And in 1984, the Court held in Oliver v. United States that landowners have no reasonable expectation of privacy in their land even if it is hidden from public view by a fence or other obstruction. In that case, police were acting on a tip that the landowner was growing marijuana on his property.

The Supreme Court has also read the Fourth Amendment to extend to one's automobile. Yet United States v. Ross (1982) all but did away with the amendment's warrant requirement in many circumstances involving vehicles by holding that if police have probable cause to believe that a car contains drugs, they can search it without a warrant. And in 1976, South Dakota v. Opperman authorized inventory searches of towed and impounded vehicles even without probable cause.

In terms of seizures of persons, otherwise known as "detentions," the Fourth Amendment forbids such action without probable cause — at least according to the text. Yet in United States v. Sokolow , the Supreme Court upheld the Drug Enforcement Administration's use of a "drug courier profile" to detain people at airports. Courier profiles — which vary based on the professional experiences of a given group of law enforcement officers — comprise a list of behavioral traits that tend to distinguish travelers carrying illicit drugs. Such traits include appearing nervous, making a phone call shortly after arriving, having little or no luggage, having a significant amount of luggage, using public transit, and paying cash for a ticket (the case was decided in 1989). In certain police departments, the list also includes activities like departing the plane first, last, or somewhere in between. The profile varies among agencies and transit hubs without any sort of consistency.

Warrantless seizures and searches can also take place in schools. A particularly egregious example occurred in Safford Unified School District v. Redding (2009), when the Supreme Court ruled that two school staff members who forced a 13-year-old girl to remove her clothes and shake out her underwear because they thought she was hiding contraband — ibuprofen (Advil) — could not be held liable for their actions. The Court found that the search was unreasonable but not obviously unconstitutional, meaning that the school employees were protected by the doctrine of qualified immunity. That is, the Court felt it was not clear that strip-searching a young girl to look for headache pills violated her rights. Why? Because until this case, several lower courts had upheld these types of searches based on schools' zero-tolerance drug policies.

The Fifth Amendment also preserves people's rights in the criminal-procedure context. Among the most crucial of these is the right to due process, which affords protection from government deprivations of one's life, liberty, and property without due process of law. At minimum, due process requires notice of the charges and an opportunity to be heard before a neutral judge. The practice of civil asset forfeiture, which often coincides with suspected drug activity, calls into question the government's commitment to upholding due process.

Civil forfeiture laws allow police to seize people's property without a hearing or even notice, much less a finding of guilt. In theory, the practice is authorized based on the property's suspected connection with criminal activity. Yet asset-forfeiture statutes frequently fail to distinguish between illicit proceeds from criminal activity and property that belongs to criminals or their family members but has no connection to any crime. (Incidentally, this implicates not only due process, but the Fifth Amendment's Takings Clause, which protects against government seizure of property without just compensation.) The burden of proving the forfeiture illegitimate is placed on either the owner or, oddly enough, the inanimate object itself. What's more, police are allowed to keep most of the proceeds acquired from the sale of seized property, creating a perverse incentive for officers to initiate forfeiture proceedings. Suffice it to say, most of the property forfeited under such laws is acquired pursuant to a narcotics investigation.

The courts have yet to outline a standard for the right to trial "without unnecessary delay" under the Sixth Amendment, but wait times for trial frequently exceed any reasonable interpretation of that phrase. In New York City, the average wait time for all criminal jury trials in 2011 was 414 days, up from 274 just 10 years earlier. The average wait time for a murder trial in 2011 was over 750 days. These numbers have only grown. And though not all crimes are drug-related, non-violent drug offenses are responsible for a substantial portion of all arrests. If these cases were eliminated, the entire system would move more quickly.

The massive number of people arrested and charged with drug offenses affects not only how long defendants have to wait for trial, but also the quality of their legal representation, which implicates the Sixth Amendment's right to assistance of counsel. The Bureau of Justice Statistics (BJS) estimates that more than three-quarters of indigent prisoners across the country are represented by a public defender. Thanks in large part to the drug war, public defenders' caseloads have increased dramatically since the 1970s, now far exceeding the maximum caseloads that the National Advisory Commission on Criminal Justice Standards and Goals recommended in 1973. What's more, public defenders are at a severe disadvantage when it comes to financial resources: A 2007 study of indigent defendants in Tennessee found that public defenders in these cases had less than half the funding of prosecutors (and this doesn't account for the free resources that the prosecutors can access, like crime labs and the police themselves). Citing BJS statistics, a 2011 meta-study found that spending in constant dollars per indigent defendant began to decrease rapidly in the early 1980s, which is right when the drug war kicked into high gear and the number of indigent defendants started to skyrocket. The decline in time and resources devoted to the defense of indigent defendants — many of whom are arrested on drug-related charges — is yet another undesirable consequence of the drug war that undermines Americans' constitutional rights.

The war on drugs has implications not only for the criminal-procedure protections of the Fourth, Fifth, and Sixth Amendments, but for the Eighth Amendment as well. The latter prohibits "excessive fines" and "cruel and unusual punishment," both of which have been interpreted to demand proportionality between sentence and offense. The Supreme Court applied the Excessive Fines Clause against the states just last year in Timbs v. Indiana . The plaintiff in that case, Tyson Timbs, had sold $400 worth of heroin to undercover police. He pleaded guilty and was sentenced to home-detention and probation. The state also ordered him to forfeit his $42,000 Land Rover, which he had acquired with funds from an inheritance, not proceeds from a crime. The vehicle was worth more than four times the maximum fine for his charge. An Indiana trial court found the forfeiture amount "excessive" and "grossly disproportional to the gravity of the Defendant's offense." Meanwhile, in South Carolina last year, a judge ruled that that state's civil forfeiture laws ran afoul of the Excessive Fines Clause.

Further on the subject of disproportionate punishment, in 2010, the average mandatory minimum for drug offenders was 132 months. That 11-year average sentence is equivalent to the sentence for a Class C felony, which covers voluntary manslaughter, bank robbery, and selling a person into slavery. The U.S. Sentencing Commission likes to brag that, with relief, the average sentence for drug offenders is reduced to 61 months, but this is not something to be proud of, either. Other offenses that carry a maximum sentence of less than 61 months include domestic assault, assault of a child with substantial bodily injury, female genital mutilation, and incitement of genocide.

Jurisdictions with habitual-offender laws — where the sentences imposed have no relationship to the severity of the crime — can inflict punishments for drug offenses that are outrageously disproportionate to the wrong committed. California is probably the worst offender: Under its three-strikes law, certain non-violent felony drug offenses can count as a third strike if the first two offenses were considered violent or serious. Committing three strikes can earn a defendant 25 years to life in prison. Non-violent possession offenses represent the archetypal victimless crime, so the harm caused to society is an abstraction at best. Yet even if the law should prevent people from harming themselves, one still has to ask which option is worse for a person's health and life prospects: smoking marijuana, or spending serious time in prison.

These excessive sentence lengths for drug-related offenses, coupled with the ramping up of drug-war enforcement efforts, are at least partially responsible for the grim conditions in many of our nation's prisons. Again, California provides a useful example. The state's prisons were built to hold 80,000 inmates; a decade ago, they held double that number. Because of this overcrowding, California was unable to provide inmates with adequate and timely medical care, and resorted to throwing the ill into "administrative segregation." One guard testified that up to 50 prisoners at a time would be held in a 12-by-20 foot cage for up to five hours while awaiting medical care, which works out to 4.8 square feet per person. By way of comparison, during the transatlantic slave trade, experts estimate that each slave had about six square feet. In Brown v. Plata (2011), the Supreme Court held that the unsanitary conditions created by overcrowding in California's prisons constituted cruel and unusual punishment in violation of the Eighth Amendment.

THE POST-CIVIL WAR AMENDMENTS

Between 1791 — when the Bill of Rights was ratified — and 1864, the Constitution was amended only twice. Then between 1865 and 1870, the 13th, 14th, and 15th Amendments were adopted in the wake of the Civil War. Collectively, these amendments abolished slavery, guaranteed constitutional rights against state action, and extended the right to vote to all citizens without regard to color or previous status as a slave. Yet despite these efforts to extend the blessings of liberty to all Americans, campaigns to prohibit or end drug use have had decidedly racial overtones.

For instance, the 14th Amendment promises equal protection of the laws, but in 1875, San Francisco passed an ordinance banning opium dens — probably the first narcotics prohibition in America — out of concern that Chinese proprietors were using them to lure white women. Early marijuana regulations targeted supposed Mexican lawlessness. And alcohol-prohibition campaigns, culminating in the 18th Amendment in 1919, were partly motivated by animus toward German Americans.

Even discounting racial motives, the enforcement of modern drug laws yields disproportionate results among different races. While marijuana-usage levels are relatively constant across racial groups, African Americans are nearly four times more likely to be arrested for possession than whites — a disparity that has only increased in the last 20 years. Stop-and-frisks — also known as Terry stops, where police pat down a suspect for weapons — have a racial dimension, too. Of the 685,000 people stopped by the New York Police Department in 2011 alone, 87% were black or Latino, even though the white individuals stopped were twice as likely to be found with a weapon. (Of the total number stopped, about 88% were innocent of any crime.)

While the 15th Amendment expanded the franchise to all male citizens regardless of color in 1870, tens of thousands of African Americans continue to be disenfranchised today due to the war on drugs. This is because they make up 40% of the nation's prisoners serving time for drug-related offenses, and many states restrict the voting rights of those with criminal records. Currently, 16 states and the District of Columbia restrict voting rights only during incarceration, and nearly half the states add restrictions during probation and parole. In some states, the restoration of voting rights post-confinement or supervision depends on certain conditions or individual petitions. And in three states — Iowa, Kentucky, and Virginia — a felony conviction means permanent disenfranchisement (although governors in Kentucky and Virginia have sought to relax or otherwise sidestep these bans in recent years). There are valid reasons for prohibiting felons from voting until and unless they've paid their debt to society — Maine and Vermont are real outliers in allowing them to vote from prison  — but it is hardly reasonable to deny these kinds of rights to non-violent drug offenders.

THE RULE OF LAW

The war on drugs has been fought largely with laws that were beyond Congress's powers to enact. Although it took a constitutional amendment to allow Congress to prohibit alcohol nationwide, the prohibition of now-illicit substances under the CSA took place without any such amendment. This is perhaps mainly a commentary on the Supreme Court's expansive reading of the Commerce Clause, but it should give pause to anyone who takes the Constitution seriously.

Beyond the modern drug war's legally dubious initiation, the strained legal interpretations and yawning exceptions officials have made to sustain the effort continue to warp our constitutional system. In prosecuting and expanding the war on drugs, the federal government has racked up colossal amounts of debt, fostered state protectionism, adopted countless new federal crimes, and invaded foreign countries without congressional authorization. Meanwhile, government actors at all levels have undermined Americans' freedoms of expression and religious exercise, deprived citizens of their rights to vote and bear arms, authorized warrantless searches and seizures of property without due process, and thrown tens of thousands of people — disproportionately racial minorities — into overcrowded prisons for sentences that are out of step with the crimes they've committed. These actions have changed our understanding of such foundational principles as limited government, federalism, and the separation of powers, all while casting doubt on America's commitment to the rule of law.

The Declaration of Independence may have affirmed Americans' unalienable rights to life, liberty, and the pursuit of happiness, but the drug war has undercut those rights at every turn. That fact does not argue for any particular reform, but it does demand that we consider the ongoing constitutional costs when we decide where to go from here.

Ilya Shapiro is director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute and publisher of the Cato Supreme Court Review . He is also the author of Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court , due out from Regnery in September.

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Our drug laws are racist, and doctors must speak out—an essay by Simon Woolley

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The 50 year old UK Misuse of Drugs Act has failed to reduce illicit drug supply, use, and harms and was designed, and continues to be used, as a tool of systemic racism, argues Simon Woolley

UK drug policy is a mess. As Carol Black’s review showed in detail, the UK’s consumption of illegal drugs is growing across all sectors of society and our treatment system is near collapse. 1 Our drug related death rate is one of the highest in Europe, and the availability of drugs remains stubbornly high despite both covid-19 and regular much publicised drug busts.

Current drug policy fails everybody. But it fails black communities in particular. Black people are six times more likely to be stopped and searched than their white counterparts, and nine times more likely when the reason given is suspected drug possession. 2 3 And this is despite white people reporting higher rates of drug consumption. 4

Suspicion of drug possession—often merely the claim that an officer can smell cannabis in the vicinity of the target—is the most common reason for searches by far. Black people are also much more likely to be arrested, charged, and imprisoned for drug offences. 3 In 2017, black people were eight times more likely to be prosecuted for drug offences and nine times more likely to be sent to prison than white people. 3

A war on people

A recent report by the United Nations Human Rights Council described the global war on drugs as “a war on people,” stating that the “criminalisation of drug use facilitates the deployment of the criminal justice system against drug users in a discriminatory way, with law enforcement officers often targeting members of vulnerable and marginalised groups, such as minorities [and] people of African descent.” It said the UK was a place where “minorities …

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• Open access
• Published: 09 December 2020

An ethical analysis of UK drug policy as an example of a criminal justice approach to drugs: a commentary on the short film Putting UK Drug Policy into Focus

• Adam Holland   ORCID: orcid.org/0000-0002-3617-1966 1  

Harm Reduction Journal volume  17 , Article number:  97 ( 2020 ) Cite this article

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Drug-related deaths in the UK are at the highest level on record—the war on drugs has failed. A short film has been produced intended for public and professional audiences featuring academics, representatives of advocacy organisations, police and policymakers outlining the problems with, and highlighting alternative approaches to, UK drug policy. A range of ethical arguments are alluded to, which are distilled here in greater depth for interested viewers and a wider professional and academic readership.

The war on drugs is seemingly driven by the idea that the consumption of illegal drugs is immoral. However, the meaning ascribed to ‘drug’ in the illicit sense encompasses a vast range of substances with different properties that have as much in common with legal drugs as they do with each other. The only property that distinguishes illegal from legal drugs is their legal status, which rather than being based on an assessment of how dangerous they are has been defined by centuries of socio-political idiosyncrasies. The consequences of criminalising people who use drugs often outweigh the risks they face from drug use, and there is not convincing evidence that this prevents wider drug use or drug-related harm. Additionally, punishing someone as a means, to the end of deterring others from drug use, is ethically problematic. Although criminalising the production of harmful drugs may seem more ethically tenable, it has not reduced the supply of drugs and it precludes effective regulation of the market. Other potential policy approaches are highlighted, which would be ethically preferable to existing punitive policy.

It is not possible to eliminate all drug use and associated harms. The current approach is not only ineffective in preventing drug-related harm but itself directly and indirectly causes incalculable harm to those who use drugs and to wider society. For policymakers to gain the mandate to rationalise drug policy, or to be held accountable if they do not, wider engagement with the electorate is required. It is hoped that this film will encourage at least a few to give pause and reflect on how drug policy might be improved.

In the UK, drug-related deaths are at the highest level on record [ 1 ], accounting in 2017 for more than a third of the drug-related deaths in the European Union [ 2 ]. Without the burden of ideology framing its aims in terms of a moral impetus, any other field of public policy similarly marred by failure would be swiftly overhauled. To the readership of this journal the problems with criminal justice focused drug policy, underscored by the rhetoric of the war on drugs may seem so plainly evident that they do not warrant stating. Nonetheless, it persists unabated in the UK and to degrees across the world. The propagation of punitive drug policy may be driven indirectly by the power relations between politicians and the electorate in democratic societies as the incentive of votes, or the threat of their loss, inspires a need to not be seen as being ‘soft on drugs’. Alternatively, it may be driven directly by policymakers; this could be due to their unconscious biases, as it is plainer than ever to see in contemporary politics that power does not preclude politicians from being all too human, or as others have despondently suggested, in some cases this could feasibly represent a conscious effort to further the interests of powerful actors and reinforce socioeconomic inequalities [ 3 ]. Whether the war on drugs is spurred on by one, or by a combination of these factors, to create a more just society it is necessary to engage with the public to highlight the problems with drug policy, particularly given the lack of transparency in much of contemporary political decision-making. Only through a shift in the understanding of the electorate will those in positions of power be given the mandate to rationalise drug policy or be held accountable if they do not.

With that in mind, with borrowed equipment and assistance gratefully received from friends and colleagues, I produced the short film Putting UK Drug Policy into Focus . In the film, the UK situation is used as an example to explore the problems with a criminal justice focused approach to drugs with the optimistic hope that viewers, both national and international, will be motivated to reflect on what a more ethically sound approach would look like. Fourteen stakeholders kindly agreed to be interviewed or to submit footage for the film including academics, representatives of advocacy organisations, police officers and policymakers. Although the film focuses on the UK, some contributors are from further afield as national policy is contingent on international context, and alternative international practice is highlighted. Contemporary arguments in favour of and against maintaining the status quo in drug policy are examined, rather than the antecedents of the current situation as the socio-political context of the past is not a reason to maintain the policy borne from it in the future; socio-political contexts change as does our understanding of the effects of policy decisions.

A range of ethical arguments is alluded to in the film, which are distilled here in greater depth for interested viewers and a wider professional and academic readership. Admittedly, discussion of the idealistic aims of drug policy is unlikely to directly influence those in power [ 4 ] and ethical argumentation alone is not sufficient to change policy; however, it is necessary to ensure the rigorous formulation of imperatives to do so [ 5 ]. Both deontological and consequentialist perspectives are explored. Deontological theories maintain that the rightness or wrongness of acts is determined by the nature of the acts themselves, the duties of those performing them and the rights of those affected. Consequentialist theories on the other hand maintain that the rightness or wrongness of acts is determined by their consequences [ 6 ]. Section one explores and critiques the idea that using those drugs that are illegal is morally wrong and doing so warrants punishment by virtue of its immorality. Sections two and three explore and critique the arguments for criminalising the possession, production and trafficking of drugs. Section four offers reflections on how drug policy in the UK and further afield can and should be modified to avert the ethical issues arising from a criminal justice focused approach.

The immorality of (some) drugs

For some, the impetus for punitive drug policy seemingly emanates from the deontological idea that there is something morally wrong about using those drugs that are illegal and that doing so warrants punishment [ 6 ]. The meaning ascribed to ‘drug’, in the illicit sense, which fuels drug policy discourse and the paradigm of the war on drugs [ 7 ] encompasses a vast range of substances with different effects, used by different groups in different circumstances that have as much in common with each other as they do with many legal substances. In fact, the only defining characteristic shared by those drugs that are illegal, distinguishing them from those that are not, such as alcohol, tobacco or coffee, is precisely that they are illegal. This generates a circular argument: illegal drugs are immoral because they are illegal, and they are illegal because they are immoral. It is this circularity that unfortunately means that the position is as logically unassailable for those who hold it as it is nonsensical for those who do not.

Proponents of the view that drug use is immoral may claim that its immorality stems from its potential to cause harm to a consumer. However, it is not obviously correct to say that the potential for an act to cause harm necessarily makes it immoral. Choosing to go skiing or lighting a campfire, for example, could result in an injury or a burn; however, these acts would not be afforded moral status by virtue of their harming potential alone. On the other hand, forcing someone with no training to ski down a steep mountain or setting them on fire before doing so is clearly ethically problematic. If it is the agency of the subject at risk of suffering harm as a result of an act that determines the morality of that act, then it is not immoral for somebody to voluntarily expose themselves to the risk of harm by using a drug. Contrary to this position, it can be argued that adults have a moral right to do what they want to do to their own bodies, which would include using drugs for recreational purposes [ 8 ]. Even if it was accepted that it was immoral for subjects to put themselves in harm’s way, and that this should determine the legal status of different drugs, this is not reflected in current policy as the legal classification of different drugs is not representative of the relative levels of harm that they are responsible for [ 9 ]. If this position was accepted, there would be profound consequences, not only in terms of the legal status of alcohol and tobacco, but also that of unhealthy foods, extreme sports and driving.

A more compelling argument would be to suggest that buying illegal drugs is morally wrong because it provides funding to criminal organisations thereby facilitating other criminal activities that cause harm to third parties. However, this argument once again leads to circularity as the relationship is contingent on contemporary policy: possessing a drug is illegal because buying it is morally wrong; buying it is morally wrong because it provides funding for organised criminal gangs; it provides funding for organised criminal gangs because they control the market for that drug; and they control the market for that drug because it is illegal to possess it.

The idea that the use of some drugs is immoral, and the war on drugs that emanates from this view is ideological; that is, it can be characterised by a configuration of power leading to the imposition of a set of ideas, which give some particular interests the appearance of being universal [ 10 ]. It is not a natural or inevitable state of affairs that the consumption of particular substances, such as coffee or alcohol is widely accepted, or even encouraged while the consumption of others, such as amphetamines or cannabis apparently justifies stigmatisation and punishment. It is only through the influence of powerful historical actors who served to benefit from the propagation of this view that it is now so widely accepted [ 11 ] and it is far from the case that any benefits from a punitive approach to drugs are shared universally. Without a sustained exertion of power, which is most clearly apparent in the enforcement of punitive drug laws, the incoherence of these distinctions would be more plainly obvious to those subject to that power, as would the dearth of beneficial consequences from the criminalisation of drugs. To divert attention from the incoherence of ideological viewpoints, proponents can direct intent focus on the specifics of the subject matter to inspire an emotive response [ 10 ]. In the case of illicit drugs, this often involves highlighting the harm that drug use causes, which indeed may be profound in some cases. However, as previously noted, potential to cause harm does not in itself obviously imbue an act with moral status and this view does not give credence to a moral distinction between harmful illicit drug use and harmful licit drug use or other potentially harmful activities.

These deontological arguments based on circular reasoning and ideology are not a sufficiently rigorous foundation upon which to base policy decisions. Accordingly, the ethical analysis of drug policy which follows is undertaken primarily through a consequentialist lens; that is, does it reduce harm? However, a further deontological argument will be examined regarding the use of criminal sanctions to deter drug use, which is more robust than those posed against drug use itself.

Criminalising the possession of drugs

When exercising punitive drug laws the use of force may lead to physical and psychological harm; contact with the criminal justice system is associated with a host of health and social inequalities which may be exacerbated by prosecution [ 12 ], and if leading to the deprivation of liberty, this is inherently harmful to the individual who is prevented from doing what they want to do. For this approach to be morally justified in consequentialist terms, it would need to prevent more harm than it causes. Proponents might claim that it results in a net reduction in harm to those being punished as it deters them from using drugs in the future. However, there is not convincing evidence that this is the case and even incarceration is not a reliable deterrent as more than one in four prisoners surveyed in the UK reported drug use in prison [ 13 ].

Regardless, data from the UK suggest that most people who take illicit drugs do not do so regularly [ 14 ] and as risk is cumulative, consumption and harm tend to be correlated [ 15 ]. Therefore, as Professor David Nutt highlights in the film, for the vast majority who use drugs, the negative impact of a criminal record would be much more significant than the negative impacts of continued infrequent drug use. For those who use drugs more frequently and problematically who are at the greatest risk of harm from doing so, use often develops in the context of adverse childhood experiences [ 16 ] and socioeconomic deprivation [ 17 ]. This is highlighted by Andria Efthimiou, who has first-hand experience of heroin use: “I was obviously reacting to … a very difficult childhood of illness that nearly killed me many times; difficult family circumstances, socially, economically; stressed out mother; absent father; and drugs were a great comfort so, having another punisher as it were with the police … what’s the point?” These antecedents of other health and social disadvantages are only exacerbated by contact with the criminal justice system and a criminal record.

Alternatively, proponents of punitive drug laws might argue that the harm they cause to individuals is justified by a net reduction in harm in society overall as others are deterred from drug use. Four challenges to this position follow: first, a direct empirical rebuttal; second, a consequentialist challenge related to the unintended negative impacts of criminalising possession; third, a deontological challenge in regard to the ethically problematic nature of using humans as a means to an end; and fourth, a procedural challenge highlighting the inequitable application of punitive drug laws.

First, there is no clear association between drug policy liberality and drug use prevalence, either contemporaneously across different countries [ 18 ] or subsequently in countries that have changed their drug policy [ 19 , 20 ]. Although it is feasible that punitive laws might reduce drug use in some settings, it is not a necessary condition of doing so as in Portugal the use of some drugs has continued to decrease after possession for personal use was decriminalised [ 21 ].

Second, the application of punitive drug laws may encourage behaviours that increase the risk of harm in the wider drug taking population. Fear of punishment might result in people using drugs in more secretive and riskier ways, for example by taking larger amounts before leaving the house or taking drugs that they bought hastily without examining them [ 22 ]. In addition, they may not as readily engage with harm reduction or treatment services, which would otherwise have mitigated the risks that they are exposed to [ 23 ].

Third, even if there was convincing evidence that the punishment of people who use drugs deterred wider use and did not have unintended negative impacts, it is still a morally problematic approach as illustrated by an event in Voltaire’s Candide. The eponymous protagonist refuses to step foot on English soil after witnessing an admiral being ceremoniously shot in the head. Upon asking why the admiral was executed, the characters are told “in this country we find it pays to shoot an admiral from time to time to encourage the others” [ 24 ]. Voltaire wrote Candide to confront the position of Enlightenment philosophers who argued that everything happens for a reason and that the world is truly as perfect as it would need to be to vindicate their belief in an omnipotent, benevolent god. Contrary to this, Voltaire accused the world of being “a senseless and detestable piece of work” typified by the profound injustice of the execution of the admiral and the rationale that led to it. This is the same rationale that persists in contemporary drug policy: that it is fine to use an individual as a means to an end by making an example of them pour encourager les autres (to encourage the others). When explicitly stated as such, this approach is clearly incompatible with contemporary public health ethical guidelines [ 25 ]; the ‘fundamental British value’ of ‘individual liberty’ taught in schools as directed by the same government that bolsters a criminal justice approach to drugs [ 26 ]; and the writings of the philosophers who laid the foundations of European political thought, such as Immanuel Kant and John Stuart Mill, who decried the instrumentalisation of human beings [ 27 , 28 ].

Finally, even if punitive drug laws deterred drug use, had no unintended negative consequences, and were otherwise morally justifiable, they are not applied equitably as members of some ethnic minority communities are punished for the possession of drugs disproportionately compared to the amount that they use drugs. This is notably the case in the USA [ 29 ] but also in the UK [ 30 ], persisting as a face of prejudice in a world acutely sensitised to the shadow of racial inequality. If there were benefits from a criminal justice approach to drugs, it would still be ethically problematic that these benefits were contingent on causing harm that was primarily shouldered by specific groups as determined by the colour of their skin.

Criminalising the production and trafficking of drugs

In deontological terms, punishing the production and distribution of harmful drugs might seem more ethically tenable than punishing the possession of drugs for personal consumption. However, on closer examination this too is not straightforward as it is not always clear whether drug market actors are more accurately characterised as perpetrators of crime or victims of extenuating circumstances. In the UK, exploited children and vulnerable adults play a prominent role in the recently identified county-lines drug market model [ 31 ], and internationally, marginalised and deprived communities face significant pressures, financial and otherwise, to produce drugs [ 32 ]. In addition, as was the case when distinguishing between the consumption of legal drugs such as coffee and alcohol and illegal drugs such as amphetamines and cannabis, the distinctions between producing them are nominally legal, beyond which there is not a clear ethical difference. If it is the potentially harmful nature of a product that warrants laws being enacted against its production, then the production of alcohol, tobacco, refined sugar, and cars should similarly be criminalised.

From a consequentialist perspective, proponents of the war on drugs might claim that it reduces drug-related harm as the seizure and destruction of drugs prevents their consumption and the punishment of producers and traffickers deters others from entering the market thereby further reducing drug availability. Four consequentialist challenges to this position follow: first, a direct empirical rebuttal; second, related to the unintended corollary of increasing innovation; third, highlighting the harm caused to third parties; and fourth, highlighting the preclusion of more refined regulation of the market.

First, as former undercover police officer Neil Woods highlights in the film, the ninth principle of British policing states that the test of police efficiency is not evidence of police action, but the absence of crime [ 33 ]. If the global illicit drug market is considered in criminal terms, domestic and international policing efforts have categorically failed this test. Although vast amounts of money and effort have been devoted to combating the illicit drug trade, the market continues to grow [ 34 ] with the short-term impacts of interdiction proving as unsustainable as decapitating one head of the proverbial hydra. The astronomical profit margins available to drug traffickers mean that the cost of drug seizures can easily be absorbed as a ‘tax’ on their operations [ 35 ] and marginalised drug producing communities can be incentivised to continue production in spite of efforts to deter them from doing so [ 32 ].

Second, efforts to stop the production and distribution of drugs promote innovation, which can exacerbate and lead to new types of harm. For example, new drugs are developed to circumvent existing detection methods and legislation [ 36 ]; in the last 2 decades, more than 670 new psychoactive substances have appeared on the European drug market [ 37 ], for most of which very little is known about in terms of their health impacts or how to mitigate them [ 38 ]. And new means of distribution are devised to avoid enforcement efforts; in the case of the darknet, this has made drugs more readily available [ 39 ]; and in the case of the UK county lines phenomenon, this has promoted new forms of criminality and exploitation [ 31 ].

Third, in some cases, efforts to combat the drug trade can cause harm to third parties as communities and the environment become collateral damage caught in the crossfire of the war on drugs. In Colombia, for example, swathes of the country have been fumigated to destroy coca crops [ 40 ]; a practice some commentators have argued was in contravention of international humanitarian law [ 41 ]. Fumigation was stopped in 2015 after the World Health Organisation declared that the chemicals being used were probably carcinogenic [ 42 ]; however, it looks likely to recommence in the foreseeable future following pressure from the Trump administration [ 43 ].

Finally, the illegality of drug production precludes governmental regulation of the market or enforcement of standards of production to reduce harm. Variable drug purity [ 44 ] and the adulteration of drugs with stronger and more harmful substances, particularly the adulteration of heroin with fentanyl analogues in the USA [ 45 ], have been identified as key factors contributing to increasing drug-related death rates. In addition, the government cannot financially regulate an illegal market. In 2017, in the European Union alone, the illegal drug market was estimated to be worth between 26 and 34 billion euros [ 46 ]. This money, which would otherwise need to be accounted for and could be taxed, may be used to fund harmful activities, including other forms of organised crime and exploitation [ 47 ] and potentially terrorism [ 48 ].

Ethical imperatives for drug policy

There is increasing political and academic support for countries to follow in the footsteps of Portugal and decriminalise the possession of drugs for personal use. This includes recommendations from the United Nations Chief Executives Board for Coordination [ 49 ], a 2019 UK House of Commons Select Committee on Drug Policy [ 50 ], the Royal Society of Public Health [ 51 ], the Canadian Association of Chiefs of Police [ 52 ] and the Lancet Commission on Drug Policy and Health [ 23 ]. Thus far, however, in the UK at least there seems to be little impetus for change.

Although the decriminalisation of the possession of drugs would be a step in the right direction, it does not confront the problems related to the unregulated nature of the criminal drug market. The legal regulation of all drugs would be more congruent, not only with the approach taken with drugs that are currently legal including alcohol and tobacco, but also with other products capable of causing harm, such as refined sugar and machinery. This is not to suggest that current models of regulation for legal products are necessarily correct and research on the commercial determinants of health highlights the need to approach questions of regulation extremely carefully [ 53 ]. A future in which all drugs are legally regulated is difficult to imagine; however, the prospect becomes more palatable when considering that opioid substitution and heroin-assisted therapy are essentially highly regulated markets for drugs, with convincing evidence in their favour that they reduce harm to individuals and wider society following reductions in acquisitive crime [ 54 , 55 ].

The legal status of drugs should not be the crux of the drug policy debate; rather, the key consideration should be how to mitigate the harm they cause, which crucially means minimising the unbridled opportunity for drug market actors to profit from their sale. Neoliberal tendencies can be seen in the marketing practices of both the legal and illegal markets for drugs, which disregard the health and well-being of consumers for want of profit [ 31 , 53 ]. Close regulation is required to ensure that if it was possible to make any profit from drugs, this is subsidiary to reducing the risk of harm and the prevalence of problematic use and dependence. This would include exerting control over how drugs are produced and who can buy them, where, when and with what caveats, as well as prohibiting marketing intended to widen the market. If the intention of regulating the drug market was to reduce the risk of harm and problematic drug use, this would clearly not be compatible with the institution of a free market for drugs, or for example, adverts for cocaine at the cinema. Equally, however, it does not necessarily mean that all those drugs that are currently illegal should only be accessible with a prescription as methadone is in the case of opioid substitution therapy. As one interviewee said in confidence, the key question is not whether illicit drugs should be legally regulated, but how . The regulation of different drugs should reflect the not so subtle differences between them; however, the global push to develop policies along the lines of the Psychoactive Substances Act in the UK, which prohibits the sale of any substances nebulously defined as ‘psychoactive’ aside from those arbitrarily exempted [ 56 ], further homogenises the management of a plethora of substances, which are defined by their granularity.

While a significant reprioritisation of drug policy in the UK is unlikely in the foreseeable future, more could be done to reduce the burden of drug-related harm without a drastic change in legislation. There is convincing evidence that drug treatment and harm reduction interventions including needle and syringe programmes are cost-effective investments that not only reduce harm, but also can lead to savings across many health, social and criminal justice services [ 57 , 58 ]. Despite this, drug treatment budgets in the UK have decreased by nearly 30% in recent years [ 50 ], and although numbers in treatment increased slightly in 2018/19, this follows a consistent fall since 2013 [ 59 ].

The harm reduction movement, which promotes the provision of interventions that reduce the risk that people are exposed to when they choose to use drugs, while admitting that it is not possible to eliminate all drug use [ 60 ] offers a practical conception of consequentialist ethical theory [ 6 ]. However, unfortunately, the concept of harm reduction is misted in controversy, which seems to stem from the flawed position tackled in section one of this article: that the use of some arbitrarily defined substances is immoral. Alternatively, critics might be allowing for the perfect to be the enemy of the good by holding out for the cessation of all drug use, which induction would suggest is an unrealistic goal judging by the ineffectual decades spent waging the war on drugs. Relatively minor tweaks to policy would allow the provision of other harm reduction interventions with promising evidence in their favour, which are currently prohibited under the auspices of UK legislation.  For example, the Home Office has repeatedly refused calls to allow the provision of crack pipes by drug treatment services, which would be particularly pertinent in the current climate to minimise the transmission of COVID-19 as well as providing a means of engagement with people who use crack cocaine [ 61 ]. And despite the successful implementation of drug consumption rooms in other European countries [ 62 ], multiple calls to allow them to be opened in the UK have been rejected [ 63 ].

None of these measures—the harm reduction movement, decriminalisation of the possession of drugs, or the regulation of the drug market—is a panacea, and even together they would not eliminate drug-related harm. However, neither will an ideological war on drugs, which is itself directly and indirectly responsible for incalculable harm to the significant proportion of the population who use drugs and to wider society. Some level of drug use and drug-related harm is as inevitable in the future as it has been present for millennia. Hopefully, one day this will be accepted by policymakers, and the vast resources spent waging the war on drugs will be redirected to reducing harm, rather than propagating it. Not only will the rights of those who use drugs need to be taken into account, but also the rights of the marginalised communities compelled to produce and distribute them if there is any hope of realising the optimistic future for all outlined by the United Nations Sustainable Development Goals.

The magnitude of the cultural gestalt switch and the level of international collaboration required for this to happen cannot be underestimated, and a future in which the war on drugs has ended is far from being realised. However, the COVID-19 pandemic has demonstrated that unprecedented policy change is possible in the face of overwhelming need. Although for most, the need for a change in drug policy is not as immediately tangible, from the perspective of those affected by the war on drugs, an overwhelming need is exactly what is faced. It should once again be stressed, however, that although rapid change is indicated in light of the many ethical problems arising from contemporary drug policy, extremely careful planning is required to mitigate the risk of unintended negative consequences, particularly in terms of the potential influence of actors who may wish to profit from the market. And, as the Lancet Commission on the legal determinants of health highlights, ongoing analysis is needed to ascertain how the law affects health, with the evaluation of new legislation, and consideration of its revision or repealment being as important, if not more so, than its drafting and enactment [ 64 ].

Although it is seemingly unlikely that the UK will spearhead a global rationalisation of drug policy, it is not beyond the realms of possibility following the sensible conclusions of the 2019 House of Commons Select Committee on Drug Policy [ 50 ]. Their initial report concluded that “UK drugs policy is failing” and among other things highlighted the potential benefits of decriminalising the possession of drugs, changing legislation to allow the opening of drug consumption rooms and increasing the provision of harm reduction interventions that are not widely available in the UK such as drug checking services and heroin assisted therapy.

For political actors to gain the mandate for change, however, it is necessary for the electorate to have a greater understanding of the intricacies of the issue, immeasurably more complex than a metaphorical understanding of drugs as an enemy that needs to be fought. Perhaps this is unrealistically optimistic; however, nothing has been achieved without optimism, and it is hoped that this short film might cause at least a few to give pause and reflect.

Link to film

The short film  Putting UK Drug Policy into Focus  is available at the following link. It is indended to be used for educational purposes and as a tool for engaging with the public, policymakers and other professional groups. No permission is required to screen or share the film. A shorter version, and a recording of the webinar at which the film was launched at the 2020 European Harm Reduction Conference are available on the YouTube channel 'Drug Policy in Focus'.  https://www.drugscience.org.uk/uk-drug-policy-focus/ .

Availability of data and materials

Not applicable.

Abbreviations

Coronavirus Disease 2019

United Kingdom

United States of America

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Acknowledgements

An enormous thank you to: those who feature in the film, discussions with whom provided inspiration for this manuscript; Professor John Coggon for his invaluable and detailed comments on earlier drafts; Dr Jason Horsley for his thoughts on the incompatibility of drug policy with ‘fundamental British values’; and Professor Nick Crofts for his knowledge of Voltaire.

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Holland, A. An ethical analysis of UK drug policy as an example of a criminal justice approach to drugs: a commentary on the short film Putting UK Drug Policy into Focus . Harm Reduct J 17 , 97 (2020). https://doi.org/10.1186/s12954-020-00434-8

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DOI : https://doi.org/10.1186/s12954-020-00434-8

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Trump, Harris aren't as far apart as expected on reforming marijuana laws

For the first time in American history, the country's two major presidential candidates both support reforming the nation's cannabis laws -- even legalizing weed, to differing degrees.

There are clear and obvious distinctions between the positions of Vice President Kamala Harris, the Democratic candidate, and former President Donald Trump, the Republican candidate. Neither have made cannabis reform a focal point of their campaigns.

But after nearly 100 years of federal prohibition, the 2024 presidential election could be a stepping stone to larger reforms that activists have long dreamed about.

Marijuana legalization continues to be a popular issue.

A November 2023 Gallup poll reported that 70% of Americans believed marijuana should be legal, with majorities across gender, racial, education and political lines. According to the Gallup poll, 87% of Democrats, 70% of independents and 55% of Republicans supported legalizing weed, including 91% of liberals, 73% of moderates and 52% of conservatives.

Since 2012, 24 states (and Washington, D.C.) have legalized weed for personal use, meaning that 53% of Americans live in states with legal weed. Another 14 states have legalized medical marijuana, including Florida, North Dakota and South Dakota, where voters will decide whether to fully legalize weed at the ballot this year.

Here's a look at where the candidates stand on marijuana legalization:

Vice President Kamala Harris (D)

Harris, 59, has been one of the most vocal proponents of marijuana legalization since she was elected to the Senate in 2016.

But she didn't start out that way.

As San Francisco's district attorney, Harris opposed a 2010 marijuana legalization measure. And while serving as California attorney general, more than 2,000 people were incarcerated for marijuana and hashish-related offenses.

But upon her election to the Senate, Harris's stance on cannabis grew more progressive.

In 2019, she introduced the Marijuana Opportunity Reinvestment and Expungement Act, which would remove cannabis from the list of controlled dangerous substances (essentially legalizing the drug) and co-sponsored the Marijuana Justice Act, an earlier legalization bill.

Harris also co-sponsored the Secure and Fair Enforcement (SAFE) Banking Act, which would allow federally insured banks and credit unions to take on cannabis businesses, which often operate on a cash-only basis due to banking restrictions.

The MORE Act and SAFE Banking Act both passed in the House, but neither has been able to clear the filibuster in the Senate.

Since becoming vice president, Harris has publicly toed the more moderate stance of the Biden Administration. She supported President Joe Biden's call to reschedule cannabis as a Schedule III drug, placing it on the same level as ketamine, testosterone or Tylenol with codeine.

And in March, she held a roundtable discussion with activists, including recipients of presidential pardons for marijuana crimes.

"Nobody should have to go to jail for smoking weed," Harris said. "And what we need to do is recognize that far too many people have been sent to jail for simple marijuana possession."

NORML, the country's longest-running legal weed advocacy group, awarded Harris an "A" grade in its 2024 voters guide. Her running mate, Minnesota Gov. Tim Walz, also received an "A" grade after supporting the effort to legalize marijuana in Minnesota.

Former President Donald Trump (R)

Trump, 78, rarely addressed cannabis reform during his presidential term or his campaigns. But when he did speak, it wasn't as overtly negative as one might expect. At worst, the former president had a mixed opinion.

In June 2018, he told reporters that he would "probably end up supporting" the Strengthening the Tenth Amendment Through Entrusting States (STATES) Act if passed by Congress. That bipartisan bill would have barred the federal government from interfering with states' cannabis laws, including medical marijuana and adult use laws. (Harris was a cosponsor of the STATES Act in the Senate).

Trump's tepid support -- the bill never received a committee hearing -- stood in stark contrast to his own attorney general. It only took then-Attorney General Jeff Sessions, a former senator from Alabama, less than a year in the job before he rescinded the Cole Memorandum, a directive issued during the Obama Administration stating federal prosecutors should not enforce federal marijuana laws in states where weed had been legalized.

Trump's most full-throated support of cannabis reform came just last week, when he announced that he'd be voting in favor of the Florida ballot initiative to legalize weed.

Trump's announcement came on his Truth Social account and reads like a list of talking points for any statewide cannabis campaign.

"I believe it is time to end needless arrests and incarcerations of adults for small amounts of marijuana for personal use," Trump said. "We must also implement smart regulations, while providing access for adults, to safe, tested product."

Donald J. Trump (@realDonaldTrump)

Trump also endorsed the Biden Administration's rescheduling effort, saying his administration would "continue to focus on research to unlock the medical uses of marijuana."

Trump even said he'd work with Congress to pass "common sense laws," including a banking act and a law supporting states' rights to pass marijuana laws -- seemingly endorsing the long-dormant SAFE Banking and STATES Acts.

NORML has only awarded Trump a "C" grade, along with his vice presidential candidate, Sen. J.D. Vance (R-OH). Vance voted against the SAFER Banking Act (a newer version of the SAFE Banking Act) last year when it was up for a vote in the Senate Banking Committee, claiming that the bill could "pave the way for more widespread marijuana use and federal legalization," he wrote in a letter to a constituent , published by NORML.

During a campaign stop in Wisconsin last month, Vance said he wouldn't want his own kids to "ruin their life" after they "take something or do something I don't want them to take.

"I don't want our kids to make mistakes on American streets and have it take their lives away from them," Vance said.

Mike Davis has spent the last decade covering New Jersey local news, marijuana legalization, transportation and a little bit of everything else. He's won a few awards that make his parents very proud. Contact him at [email protected] or @byMikeDavis on Twitter .

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HHS Announces Cost Savings for 64 Prescription Drugs Thanks to the Medicare Rebate Program Established by the Biden-Harris Administration’s Lower Cost Prescription Drug Law

Under President Biden’s Inflation Reduction Act, some people with Medicare will pay less for some Part B drugs if the drug’s price increased faster than the rate of inflation.

The U.S. Department of Health and Human Services (HHS), through the Centers for Medicare & Medicaid Services (CMS), today announced that some Medicare enrollees will pay less for 64 drugs available through Medicare Part B. The drugs will have a lowered Part B coinsurance rate from July 1, 2024 – September 30, 2024, since each drug company raised prices faster than the rate of inflation.  Over 750,000 people with Medicare use these drugs annually, which treat conditions such as osteoporosis, cancer, and infections. White House Domestic Policy Advisor Neera Tanden will announce the cost savings on these life-saving drugs in a keynote address on the Biden-Harris Administration’s focus on lowering costs today at the Center for American Progress.

“Without the Inflation Reduction Act, seniors were completely exposed to Big Pharma’s price hikes. Not anymore. Thanks to President Biden and the new Medicare inflation rebate program, seniors are protected and benefitting from lower Part B drug costs,” said White House Domestic Policy Advisor Neera Tanden. “The Biden-Harris Administration will continue fighting to bring down the cost of health care and prescription drugs for all Americans.”

“President Biden’s Medicare prescription drug rebate program is putting money back in the pockets of seniors and people with disabilities, said HHS Secretary Xavier Becerra. “President Biden made lowering prescription drug costs for Americans a top priority, and he is delivering on that promise. Our work is not complete, and we will continue to fight for lower health care costs for all Americans.”

Please find soundbites from HHS’ Chief Competition Officer, Stacy Sanders, here .

Because of President Biden’s lower cost prescription drug law, the Inflation Reduction Act, which established the Medicare Prescription Drug Inflation Rebate Program, some people with Medicare who use these drugs during this time period may save between $1 and $4,593 per day.

“Everyone should be able to afford their medication, and the Inflation Reduction Act continues to deliver on this goal to improve affordability,” said CMS Administrator Chiquita Brooks-LaSure. “Discouraging drug companies from price increases above the rate of inflation is a key part of this effort, and CMS continues to implement the law to bring savings to people with Medicare.”

Padcev, a medication used to treat advanced bladder cancer, is an example of a prescription drug with a price that has increased faster than the rate of inflation every quarter since the Medicare Part B inflation rebate program went into effect, resulting in lowered Part B coinsurances for seniors and others with Medicare. A beneficiary taking Padcev as part of their cancer treatment may have saved as much as $1,181 from April 1, 2023 through March 31, 2024, depending on their coverage and course of treatment. Another example, Crysvita, treats a rare genetic disorder that causes impaired growth, muscle weakness, and bone pain. A beneficiary taking Crysvita may have saved as much as $765 from July 1, 2023 through March 31, 2024 depending on their coverage and course of treatment.

The Medicare Prescription Drug Inflation Rebate Program is just one of the Inflation Reduction Act’s prescription drug provisions aimed at lowering drug costs. In addition to this program, the law expanded eligibility for full benefits under the Low-Income Subsidy program (LIS or “Extra Help”) under Medicare Part D at the beginning of this year. Nearly 300,000 people with low and modest incomes are now benefiting from the program’s expansion. A comprehensive public education campaign is underway to reach the more than three million people who are likely eligible for the program but not yet enrolled.

In addition, as of January 1, 2024, some people enrolled in Medicare Part D who have high drug costs have their annual out-of-pocket costs capped at about $3,500. In 2025, all people with Medicare Part D will benefit from a $2,000 cap on annual out-of-pocket prescription drug costs.

The Inflation Reduction Act requires drug companies to pay rebates to Medicare when prices increase faster than the rate of inflation for certain drugs. CMS intends to begin invoicing prescription drug companies for rebates owed to Medicare no later than fall 2025. The rebate amounts paid by drug companies will be deposited in the Federal Supplementary Medical Insurance Trust Fund, which will help ensure the long-term sustainability of the Medicare program for future generations.

For more information on the Medicare Prescription Drug Inflation Rebate Program visit, https://www.cms.gov/inflation-reduction-act-and-medicare/inflation-rebates-medicare

To view the fact sheet on the 64 Part B drugs with a coinsurance reduction for the quarter July 1, 2024 – September 30, 2024, visit, https://www.cms.gov/files/document/reduced-coinsurance-certain-part-b-rebatable-drugs-july-1-september-30-2024.pdf

More information and helpful resources about the Inflation Reduction Act and how it is helping to lower costs for people with Medicare can be found at LowerDrugCosts.gov .

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Cody Andrew Seals Sentenced To Thirty Years In Prison For Drug Trafficking And Attempted Murder Of Law Enforcement Officers

KNOXVILLE, Tenn. – On September 13, 2024, Cody Andrew Seals, 27, currently of Luttrell, Tennessee, was sentenced to 30 years in prison by the Honorable Katherine A. Crytzer, United States District Judge, in the United States District Court for the Eastern District of Tennessee at Knoxville.

On April 16, 2024, pursuant to a filed plea agreement, Seals pleaded guilty to a conspiracy to possess with the intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A); discharge of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and the attempted murder of two Tennessee Highway Patrol Troopers who were assisting federal law enforcement agents, in violation of 18 U.S.C. § 1114.

According to filed court documents, federal law enforcement agents and task force officers were investigating a Mexican drug trafficking cartel that was distributing hundreds of kilograms of methamphetamine into the Eastern District of Tennessee and elsewhere. On January 9, 2020, law enforcement officials conducting surveillance observed Seals driving up to a hotel to purchase large quantities of methamphetamine and heroin. Law enforcement followed Seals and requested assistance from the Tennessee Highway Patrol (“THP”) to stop Seal’s vehicle. As two THP Troopers attempted to conduct a traffic stop of Seals’ pick up on Highway 27 north of Chattanooga, Tennessee, Seals fled at a high rate of speed and fired a handgun at the Troopers. After a chase lasting several minutes, THP Troopers were able to force Seals’ truck to a stop on the highway. Seals got out of his truck and began rapidly firing a rifle at both THP Troopers, striking one of the Troopers in the leg. The Troopers returned fire, striking Seals non-fatally. Seals stopped shooting and was arrested. A subsequent search of Seal’s truck resulted in the seizure of 1.4 kilograms of methamphetamine, 500 grams of heroin, and several firearms.

United States Attorney Francis M. Hamilton III and Homeland Security Investigations Special Agent in Charge Rana Saoud made the announcement.

Law enforcement agencies participating in the joint investigation which led to the indictment and subsequent conviction of Seals include Homeland Security Investigations, the Tennessee Bureau of Investigation, the Tennessee Highway Patrol, Tennessee’s 9th Judicial District Drug Task Force, the Georgia Bureau of Investigation, the Georgia State Patrol, and the Drug Enforcement Administration.

Assistant United States Attorney Kevin Quencer represented the United States.

This case is part of an Organized Crime Drug Enforcement Task Forces (OCDETF) investigation. OCDETF identifies, disrupts, and dismantles the highest-level drug traffickers, money launderers, gangs, and transnational criminal organizations that threaten the United States by using a prosecutor-led, intelligence-driven, multi-agency approach that leverages the strengths of federal, state, and local law enforcement agencies against criminal networks.                                                                                                             ###

Rachelle Barnes Public Affairs Officer (865) 545-4167

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