Is There a Case for the Decriminalization of All Drugs?

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Article Overview:

The War on Drugs was supposed to be the beginning of the end of the illegal drug trade, but instead, it created a robust black market that profits off economic and racial inequality. As societies and entire countries have reeled from three decades of failed drug policy, the case for the decriminalization of all drugs is furiously debated at all levels of governance.

The Fatally Flawed War on Drugs

In 2016, the leaders of the Global Commission on Drug Policy criticized the United Nations for issuing a drug policy agreement during a special session that they felt was misguided and ill-advised. Richard Branson, the head of the Virgin Group and a member of the commission, commented that the UN’s approach “was fatally flawed from the beginning,” and that the international drug law system was at risk of being beyond repair. His comments were echoed by the former presidents of Mexico, Colombia, and Switzerland.[1]

The commission’s disappointment in the United Nations stems from their 2011 report that declared the failure of the global War on Drugs, which devastated “individuals and societies around the world” by way of brunt of military interventions, excessive policing, and thriving drug trafficking.[2] Analyzing the report, TIME noted that the origins of the War on Drugs was the idea that “harsh law enforcement action” would eliminate the manufacture and distribution of drugs while acting as a deterrent to consumers.[3]

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Despite trillions of dollars being spent on the War on Drugs, it has failed to meet its goals and made the problem bigger.

The black market has grown, rates of drug consumption have skyrocketed, and entire countries (like Mexico and Afghanistan) have become destabilized because of the vice-like grip of drug cartels and warlords.[4]

Decriminalizing Drugs

The commission created controversy by officially advocating the decriminalization of drug use by consumers who do not pose a public safety threat. For too long, according to the commission’s report, governments, politicians, and legislators have been distracted by partisan questions of being too tough on crime or too soft on crime; to think in such a way is a false dichotomy, wrote the commission. In lieu of this, the future of drug reform calls for a more flexible approach – one that minimizes the public health harms of drug use while prioritizing individual and national security.

To achieve this balance, governments will have to seriously consider not only decriminalizing certain drugs, but even legalizing those substances (“particularly cannabis”), and then using the tax revenue from their production and sale to finance other related operations.

Additionally, countries that have reformed their drug policies to treat users as patients, as opposed to criminals, have enjoyed significantly lower rates of HIV infection among needle users.

The Global Commission on Drug Policy

TIME magazine acknowledges that drug liberalization policies are often put forward, but their starkly progressive nature makes them anathema at the highest levels of governance. But never before 2011 had a body like the Global Commission on Drug Policy (an institution of “pedigree and seriousness,” according to TIME) added its voice to the decriminalization debate. Lest skeptics assume that the commission overlooked the law enforcement aspect of its position, the report instead called for operations to be directed toward “violent criminal organizations,” in order to diminish their influence and reduce their ability to intimidate local populations and police departments (as is the case now).[5] The mistake, according to the commission, is that for too long, law enforcement agencies tried to reduce drug markets, which served only to make the markets much more decentralized and harder to eradicate; alternatively, the focus should be on reducing the harm the markets cause to individuals, communities, and national security.

It is a question of emphasis, says TIME. Governments often lack the nuance to combat drug rings that have cross-border operations; nonetheless, presidents and prime ministers rely on ruthless crackdowns, which garner headlines and short-term rewards, but rarely (if ever) get near the heart of the operations. Drug cartels can easily disassemble and reconstruct their networks as needed, always staying one step ahead of the police or military deployed against them.

The commission report criticized world governments for relying on outdated and convenient political ideologies to inform their respective drug policies instead of “strategies grounded in science, health, security, and human rights.” It is only by breaking the taboo that paralyzes tangible discussion of drug decriminalization that there is a chance of making a lasting impact against the global drug trade, according to the commission. That message, however, has a long way to go. Gil Kerlikowske, then-director of the White House’s Office of National Drug Control Policy, agreed that the War on Drugs has fallen far short of its goals, but disagreed with the commission’s decriminalization strategy, arguing that “making drugs more available will make it harder to keep our communities healthy and safe.”[6]

Nonetheless, the Global Commission on Drug Policy remains undeterred. Ruth Dreifuss, the former president of Switzerland and a current member of the commission, said that she had little faith in the United Nation’s 2016 drug policy agreement and reiterated that a change of global political thinking is “absolutely necessary” to achieve any meaningful accomplishments. Fellow commission member and former Colombian president César Gaviria Trujillo had even stronger words, condemning the UN for being “unrealistic, totally naive, almost stupid” in their goal to create a world free of drug abuse. Such a world will never happen, railed Trujillo.

A Reversal of Repressive Policies

Trujillo’s frustrations are shared by a growing number of medical experts around the world. An international coalition of doctors, scientists, and researchers, convened by Johns Hopkins University and the Lancet medical journal, published its own report before the UN’s special session, wherein they argued that the status quo of drug policy has caused widespread violence, death, economic loss, an erosion of human rights, and the spread of disease, such as hepatitis C and HIV. The only solution, they wrote, is the global decriminalization of drugs. Such a step would represent “a complete reversal of the repressive [drug] policies imposed by most governments.”[7]

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The status quo of drug policy has caused widespread violence, death, economic loss, an erosion of human rights, and the spread of disease.

Dr. Chris Beyrer, of the Johns Hopkins Bloomberg School of Public Health and a member of the coalition, was quoted in The Guardian as saying that national drug laws are based on the idea that prohibiting every level of use, ownership, production, and distribution of illegal drugs will be what ends the epidemic of drug abuse. However, these policies originate from beliefs about drug use that are not scientifically, economically, or psychologically sound, Beyrer says, and they have damaged public health and human rights across the world.[8]

Beyrer’s commission calls for the decriminalization of minor, nonviolent drug-related offenses, where only a small quantity of illegal drugs is used, owned, or sold. Using the military to go after drug networks is prohibitively expensive and demonstrably ineffective, so that practice should come to an end; instead, policing efforts should be redirected toward violent and armed criminals. For nonviolent offenders (such as drug mules, people who transport drugs illegally, sometimes against their will), prison sentences should be minimized.

Drug Markets and Harm Reduction

A further recommendation is a gradual move toward legal and regulated drug markets. The commission acknowledges that in some countries, such an idea is impossible, but predicts that as current measures prove futile in improving respective drug epidemics, more and more countries (on a region-by-region basis, like US states) will move in that direction.

A more tangible goal (but nonetheless controversial) is increasing access to clean needles (through harm reduction programs like syringe exchange and/or safe injection sites), oral drugs like methadone, and equipping more people with naloxone, the nasal spray overdose-reversal drug.

Another recommendation is to discontinue the practice of using planes to spray toxic pesticides on drug crops, which has devastating ecological and environmental effects.[9]

To further bolster its arguments, the commission’s report notes that there is minimal scientific evidence that what it calls “repressive drug policies” are having their desired effects. Before the 2016 session, the last time the United Nations convened a special session on drug use was in 1998, to which it gave the slogan “A Drug-Free World.” Indicative of the times, the UN advocated a zero-tolerance policy toward drug use, encouraging governments to criminalize every level of drug activity.

Epidemics

Since 1998, the dream of a “drug-free world” has not only lain in ruins; it has ruined dozens of societies and tens of thousands of lives the world over. In 2006, for example, the government of Felipe Calderón in Mexico mobilized the military to fight drug cartels in civilian areas, an action that “ushered in an epidemic of violence […] that also spilled into Central America.” More civilians have been killed in Mexico than those who have died in the wars in Afghanistan and Iraq combined. It is bloodshed on a scale that does not happen outside of a formal state of war. Some parts of Mexico experienced a reduction in projected life expectancy.[10]

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African-American men were more than five times more likely to be incarcerated for drug offenses than white American men.

The United States has not been spared the harmful effects of the repressive policies of the War on Drugs. Of all the countries to have suffered, America is perhaps the best documented, so the impact of prohibitionist drug policies (in terms of policing, arresting, and sentencing) on ethnic minority communities and low-income individuals) has yielded some of the most damning data.

In 2014, African-American men were more than five times more likely to be incarcerated for drug offenses than white American men, even though there is no significant difference in how either population consume illegal drugs. In the words of the Huffington Post, “When it comes to illegal drug use, white America does the crime, black America gets the [jail] time.”[11] As one of the “disastrous consequences of the War on Drugs,” black and Hispanic Americans accounted for 75 percent of the prison population in state and federal prisons for drug-related offenses, even though they represent only 29 percent of the general American population.[12] The U.S. Sentencing Commission reported in 2012 that black Americans are generally given longer prison sentences for drug crimes while white Americans who are convicted of the same crimes receive lesser sentences.[13] Such sentencing disparities are “socially and economically devastating,” Dr. Beyrer’s commission found.

Portugal: Hardly Anyone Dies from Overdosing

The story is distinctly different in Portugal, where in the 1990s, almost 1 in 10 citizens was addicted to heroin. Desperate for a solution, the government decriminalized minor drug offences in 2001, “and now hardly anyone dies from overdosing,” noted The Independent in 2015. While the overdose rate per million EU residents is 17.3, only 3 per 1,000,000 Portuguese people die as a result of drug consumption.[14]

Drug users were no longer being punished for their habit, and as time passed, the United Kingdom’s Home Office noted that fewer people were taking drugs, and the rate of drug addiction fell dramatically. Ann Fordham, the executive director of the International Drug Policy Consortium, explains that more people were willing to come out of the shadows and seek treatment.[15] It was a remarkable turnaround for a country that had become the laughing stock of western Europe for being “completely naive” about drugs, in the words of Dr. João Castel-Branco Goulão who was one of the people tasked with pulling his country out of a public health drug epidemic.

In 2009, the Cato Institute reported that Portugal’s experiment with drug decriminalization led to massively reduced rates of illegal drug use among adolescents, lowered rates of HIV and other blood-borne infections by 94 percent, and caused a marked rise in the number of people getting help for substance abuse. The number of people arrested for drug offenses has dropped by over 60 percent, which has opened up significant funding for mental health and substance abuse outreach programs.

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Only 3 per 1,000,000 Portuguese people die as a result of drug consumption.

The Cato Institute’s report was led by Glenn Greenwald, a Pulitzer Prize-winning journalist and bestselling author, who told Salon magazine that drug decriminalization in Portugal “has been an unquestionable success” in every way.

The key was the focus on treatment, not punishment. A focus on punishment is a mistake that many other countries continue to make, which is why they continue to struggle with unprecedented rates of drug abuse and Portugal doesn’t.[16]

Opposition to Drug Decriminalization

Dr. Beyrer of the Johns Hopkins Bloomberg School of Public Health credited Portugal for controlling an “explosive, unsafe, injection-linked HIV epidemic” through its decriminalization of minor drug offenses, and said that the Czech Republic’s decision to decriminalize drugs probably avoided a similar public health problem. This is reason to be optimistic, Beyrer said, but he acknowledged that there is often unflinching opposition to the idea of scaling down charges for minor drug use. The Russian Federation, for example, is “vigorously opposed to any reform of current drug regimes.”

Similar opposition is found in the United States, especially since the election of Donald Trump as president and his appointment of Jeff Sessions as Attorney General. The current US government’s policies on drug reform are at odds with the population’s opinions on drugs. Even as a record high of 60 percent of Americans support the legalization of marijuana, Attorney General Sessions “wants to bring back the War on Drugs,” in the words of the Washington Post. Sessions has made clear his disagreement with individual states that have legalized recreational sales and decriminalized private use of cannabis. [17], [18] Sessions has warned that he is willing to use the federal government to penalize those states for technically breaking federal law since cannabis is still a Schedule I controlled substance.[19]

This puts current American drug policy at a crossroads, says Fortune magazine. Eight states have legalized recreational marijuana entirely; 22 have decriminalized it; and 29 states have legalized medical marijuana. A number of states are considering some permutation of marijuana reform, and a senator has introduced a bill that would legalize cannabis across the country. When it comes to marijuana, writes Fortune, “US policy […] is on a path toward liberalization – if not outright legalization.”[20]

Research has suggested that the states that legalized recreational cannabis have not experienced the feared rise in marijuana use, and there is evidence of decreases in cocaine and heroin consumption as well.[21] The rate of violent crime and traffic accidents have remained unaffected by drug legalization in those states, although some insurance companies report that crashes are up in the states in question (whether the cause of the accidents is correlated to the availability of cannabis is still up for debate).[22], [23] Fortune concludes by arguing that instead of trying to turn the clock back on drug reform, the United States should look at the success story in Portugal and other countries that have modernized their respective drug laws.

Is It Too Late to Decriminalize Drugs?

However, that path is an uphill climb, Fortune acknowledges, conceding that as the US reels from the opioid epidemic, even public health organizations like the Centers for Disease Control have called for restricting access to drugs instead of decriminalizing them. The point is echoed by Vox magazine, where German Lopez, the publication’s drug policy and criminal expert reporter, explains that his previous views on drug decriminalization have been profoundly shaken by the scope and effects of the opioid crisis.[24]

For Lopez, the main talking points about the failures of the War on Drugs were enough to convince him that decriminalization was the only logical way forward. Regulation would be a more effective and smarter form of controlling drug use, and it would gradually erode at the hold of the black market on America’s drug supply and consumption.

But the roots of the opioid epidemic lie in how powerful and addictive opioids were made more available than they ever should have been. Some state governments even increased access to opioids (by passing laws that required insurers to cover the medications), as a result of aggressive and lucrative lobbying from drug manufacturers.[25] Ironically, the opioid crisis is precisely what anti-decriminalization advocates have worried about, writes Lopez; a dangerous, addictive product would be introduced into the market, the government would be too slow (and, in some cases, reluctant) to do anything about it, and by the time the danger would be realized, addiction and overdose deaths would become commonplace.

Noble Experiments and Trillion Dollar Failures

The opioid epidemic led Lopez to revisit his views on drug decriminalization, suggesting instead that “full legalization isn’t the right answer to the war on drugs.” Given the United States’ checkered history with controlling illegal substances – from the “noble experiment” of Prohibition to the “trillion dollar failure” of the War on Drugs – Lopez is unconvinced that the US government will ever successfully regulate dangerous drugs in a legal setting.[26]

Lopez specifically addresses the decriminalization of harder drugs, saying that the opioid epidemic has shown the margin for error is too small to risk. He is not the only journalist to have changed his mind on the subject; Robert VerBruggen of RealClearPolicy came to a similar conclusion, saying the loose restrictions on opioid-based painkillers in the 1990s “made all hell break loose.”[27]

The opioid epidemic has changed the landscape of addiction and drug reform in America, to the point where the window for drug decriminalization has passed. That’s the concern of Ethan Nadelmann, the former executive director of the Drug Policy Alliance, who told German Lopez that while he hasn’t completely given up on the idea of decriminalizing drugs, the scale of opioid and heroin abuse in the United States has given him cause for concern.

America’s Drug Mistakes

Ironically, the problem is not as severe in European countries because opioids have been more regulated on the continent. Switzerland, for example, has largely avoided an opioid crisis like that plaguing North America, and Swiss officials told Nadelmann that “the US’s failures in the opioid epidemic shouldn’t hinder legalization efforts in Europe.” Even as Portugal revamped its own drug policies, the prescription of opioid-based drugs was tightly controlled.

In Vox, Lopez writes that both the Food and Drug Administration and the Drug Enforcement Administration moved too slowly to control the abuse of legal opioids and the spread of diverted painkillers. In Dissent magazine’s “The Opioid Crisis and the Failure of Politics,” Kathleen Frydl slams the FDA for their enthusiastic approval of opioid painkillers and their stumbling response to the consequences. The DEA similarly turned a blind eye to rampant prescription rates in the 1990s, which Frydl puts down to pharmaceutical corporations aggressively (and lucratively) lobbying legislators for exemptions. An internal 1999 report from the DEA showed how an unnamed pharmaceutical company requested a formal hearing about prescription quotas; the DEA “increased the aggregate production quotas for both oxycodone and hydromorphone, and has determined that a hearing is not necessary.” Lopez notes that the pharmaceutical corporation’s influence was such that it didn’t even need a hearing to get what it wanted from the DEA: increased production quotas for the generic versions of OxyContin and Vicodin, two of the painkillers at the heart of the prescription opioid tsunami.

The examples persist into the recent past. In 2015, drugmakers in Maine successfully rallied for a bill that would require insurers to cover opioid-based painkillers that are supposed to be harder to use off-label. The Portland Press Herald slammed lawmakers of the state’s 128th Legislature for not making any meaningful changes to Portland’s drug and insurance laws, even as the opioid crisis in the state gets worse.[28]

The Affinity for Unfettered Capitalism

German Lopez suggests that America’s “affinity for unfettered capitalism” (a problem found nowhere else in the world) means that drug decriminalization would never work in the United States. The combination of dangerous drugs being relentlessly marketed and distributed by powerful companies, and a government that is either too heavy handed or bureaucratically paralyzed, ensures that finding the right balance between individual liberties, public health, smart law enforcement, and bipartisan cooperation is all but impossible.

In many ways, the unlikeliness of America moving toward drug decriminalization goes deep into American culture itself. Kevin Sabet, co-founder of the anti-cannabis legalization organization Smart Approaches to Marijuana, said that America has proved that it is simply not a country that can promote moderation in consumer products or in corporate advertising. The United States has “a horrible history of dealing with these kinds of things,” Sabet says, which is why he opposes marijuana legalization. Lopez writes that while he disagrees with Sabet on many points, it is hard to refute his point.[29]

The result is that the United States finds itself between a rock and a hard place. Its War on Drugs policies have failed by every conceivable measure yet the staggering rate of drug abuse and overdose cries out for some kind of regulation. A middle path isn’t impossible, Lopez notes. One possibility might be to emulate the Portuguese model, where personal drug consumption is not criminalized but restrictions are placed against commercial companies trying to make a profit off drug sales. Increasing basic access to mental health and substance abuse treatment will also help the effort to deal with addiction regardless of decriminalization policies. Harm reduction programs, like syringe exchange programs, safe injection sites, or Canada’s prescription heroin system (to treat chronic heroin users who cannot respond to conventional therapy), can increase the scope of public health treatment while still stopping short of wholesale legalization.[30]

Unsatisfactory Options

But there is no easy answer to the question of whether there is a case for the decriminalization of all drugs. As German Lopez concludes, it boils down to “picking between a bunch of unsatisfactory options”: the widespread damage done by a generation-long War on Drugs, or a drug crisis that has killed more people than soldiers who died in Iraq, Afghanistan, and Vietnam.

Keith Humphreys, a drug policy expert at Stanford University, explained that the United States has reached the point where it can’t have everything. People and their politicians will have to choose, actively or passively, whether they want individual freedoms, access to healthcare, the right to pleasure, or the consequences of law enforcement and threats to public safety. It may be possible to have some combination of those factors, said Humphreys, but not all of them. Something will have to give.[31]

Is Drug Decriminalization Worth the Risk?

Writing in The New York Times, two-time Pulitzer Prize winner Nicholas Kristof reaches a very different answer to the question of decriminalizing all drugs: Portugal’s 15-year experiment worked; America’s four-decades long war on drugs hasn’t. There would be inevitable setbacks when implementing such a policy, Kristof grants, but if the United States were to match Portugal’s death rate from drugs, it would save one life every 10 minutes; overall, it could save the same number of lives that are lost due to gun violence and car accidents combined.[32]

Kristof admits that he had reservations about decriminalizing dangerous drugs because of the risk of opening a Pandora’s box of addiction. However, Portugal’s policies (which seem “fundamentally humane and lifesaving”) changed his mind, even as he concedes that it will be impossible for the United States to simply duplicate the Portuguese system and expect the same seismic shift.

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If the United States were to match Portugal’s death rate from drugs, it would save one life every 10 minutes

But if nothing else, Kristof concludes, Portugal has taught the world that it is possible to save the lives of drug users and not rack up trillions of dollars in biased policing and flawed incarceration policies. People who might have fatally overdosed in the shadows are still struggling with their heroin addictions, but they are nonetheless alive. For Kristof, that difference is worth the risk.

Citations

[1] ” Decriminalize All Drugs, Business and World Leaders Tell UN.” (April 2016.) The Guardian. Accessed September 20, 2017.

[2] “A Real Debate about Drug Policy.” (June 2011). Wall Street Journal. Accessed September 20, 2017.

[3] “Report: The Global War on Drugs Has Failed. Is It Time to Legalize?” (June 2011). TIME. Accessed September 20, 2017.

[4] “AP Impact: After 40 Years, $1 Trillion, US War on Drugs Has Failed to Meet Any of Its Goals.” (May 2010). FOX News. Accessed September 20, 2017.

[5] “Corruption, Drug Cartels and the Mexican Police.” (September 2012). The National Interest. Accessed September 20, 2017.

[6] “War on Drugs Not Working, Says Global Commission.” (June 2011). The Guardian. Accessed September 20, 2017.

[7] “Public Health and International Drug Policy.” (March 2016). The Lancet. Accessed September 20, 2017.

[8] “Medical Experts Call for Global Drug Decriminalization.” (March 2016). The Guardian. Accessed September 20, 2017.

[9] “Spraying Crops, Eradicating People.” (December 2002). Cultural Survival. Accessed September 20, 2017.

[10] “The Staggering Toll of Mexico’s Drug War.” (July 2015). PBS. Accessed September 20, 2017.

[11] “When It Comes to Illegal Drug Use, White America Does the Crime, Black America Gets the Time.” (September 2013). Huffington Post. Accessed September 20, 2017.

[12] “Connecting the Dots: 10 Disastrous Consequences of the Drug War.” (January 2013). Huffington Post. Accessed September 20, 2017.

[13] “2012 Report to the Congress: Continuing Impact of United States v. Booker on Federal Sentencing.” (December 2012). United States Sentencing Commission. Accessed September 20, 2017.

[14] “Portugal Decriminalised Drugs 14 Years Ago – And Now Hardly Anyone Dies from Overdosing.” (June 2015). The Independent. Accessed September 20, 2017.

[15] “What Happens if You Decriminalize Drugs?” (October 2014). The Telegraph. Accessed September 21, 2017.

[16] “The Success of Drug Decriminalization In Portugal.” (March 2009). Salon. Accessed September 21, 2017.

[17] “Gallup: Record High 60 Percent Of Americans Back Legal Pot.” (October 2016). US News & World Report. Accessed September 21, 2017.

[18] “How Jeff Sessions Wants to Bring Back the War on Drugs.” (April 2017). Washington Post. Accessed September 21, 2017.

[19] “Jeff Sessions Slams Marijuana Legalization (Again).” (September 2017). Forbes. Accessed September 21, 2017.

[20] “Could Legalizing All Drugs Solve America’s Opioid Epidemic?” (September 2017). Fortune. Accessed September 21, 2017.

[21] “Dose of Reality: The Effect of State Marijuana Legislations.” (September 2016). Cato Institute Policy Analysis. Accessed September 21, 2017.

[22] “Medical Marijuana Laws, Traffic Fatalities, and Alcohol Consumption.” (May 2013). Journal of Law and Economics. Accessed September 21, 2017.

[23] “Pot Has Increased Crashes in OR, CO, WA, Says Insurance Study.” (June 2017). KING5. Accessed September 21, 2017.

[24] “I Used to Support Legalizing All Drugs. Then the Opioid Epidemic Happened.” (September 2017.) Vox. Accessed September 21, 2017.

[25] “Politics of Pain: Drugmakers Fought State Opioid Limits Amid Crisis.” (December 2016). The Center for Public Integrity. Accessed September 21, 2017.

[26] “War on Drugs A Trillion-Dollar Failure.” (December 2012). CNN. Accessed September 21, 2017.

[27] “Questioning My Drug Libertarianism.” (January 2016). RealClearPolitics. Accessed September 22, 2017.

[28] “As Maine’s Opioid Crisis Worsens, 128th Legislature Largely Does Nothing.” (July 2017). Portland Press Herald. Accessed September 22, 2017.

[29] “Meet the Man Trying to Halt Marijuana Legalization.” (March 2016). Vox. Accessed September 22, 2017.

[30] “Canada Has Just Approved Prescription Heroin.” (September 2016). Washington Post. Accessed September 22, 2017.

[31] “How Scientists Rank Drugs from Most to Least Dangerous — And Why the Rankings Are Flawed.” (December 2015). Vox. Accessed September 22, 2017.

[32] “How to Win a War on Drugs.” (September 2017). The New York Times. Accessed September 22, 2017.