US drug policy and its tipping point

People in Washington do an awful lot of talking about tipping points these days. There is the tipping point on fiscal policy, whereby the country may finally be ready to raise taxes on its wealthiest members after three decades during which any rate increase was considered anathema. Then there is the tipping point on gun control, with Americans so horrified at the Sandy Hook Elementary School massacre in Newtown, Connecticut that they suddenly appear eager for action. Finally, there is a sense that the United States might also be approaching a tipping point on the “War on Drugs”, especially after voters in Colorado and Washington State chose to fully legalize the possession, consumption and sale of marijuana in the recent November elections. But while it is true that a shift in public opinion is slowly taking place on all such matters, it might still be a long time before we see any significant policy change, especially on the latter. Rather than any dramatic turnaround, we should therefore expect more gradual and incremental steps from the future of the politics of drug control.

“I don’t think the ballot measures in Colorado and Washington State are a tipping point in the sense that the prohibition regime is now going to come crumbling down,” says Jeffrey Miron of Harvard University and the Cato Institute. “I think it is a step toward pulling back from prohibition, but not necessarily a big step or a permanent step.” While the two referendums have re-energized the domestic debate over legalization, in the long run their significance will depend on what the federal government decides to do, which is still anyone’s guess. According to Miron, who is an expert on the economics of libertarianism and of illegal drugs, the administration will likely try to intervene in one way or another, by either suing Colorado and Washington for violating federal law, or by simply claiming that federal law (according to which marijuana remains an illegal substance) still stands, granting federal law enforcement the power to move in and arrest people caught in this gray zone.

Undoubtedly, the politics of legalization are particularly tricky for this White House. On one hand, the more liberal supporters of President Barack Obama are sympathizers, but this does not universally apply to all Democratic voters and it is certainly not true for moderates and independents. Additionally, by now a prohibition mentality has sort of set in the federal government, becoming almost institutionalized in places like the Drug Enforcement Administration and the White House Office of National Drug Control Policy. “Overall, it’s not obvious that the right political decision for the President is to be supportive of legalization,” Miron says.

But even if, by some miraculous set of circumstances, marijuana legalization was allowed to survive in Colorado and Washington, and potentially even permitted to spread to other states, the US would still be a long way from solving the devastating consequences of the so-called War on Drugs, a name so fraught with negative connotations that the Obama administration decided to drop it in 2009. 

As a term, it has been used in reference to a campaign - initially launched in the United States by the Nixon administration with the Controlled Substances Act of 1970 - to curb international drug trafficking by clamping down on the production, distribution and consumption of illegal drugs at home and abroad.

In the US alone, the policies of the drug war have led to the arrest and incarceration of millions of people at a cost, for the federal government, of more than $1 trillion over the last four decades. Internationally, this “zero tolerance” approach has done little to curtail the production and distribution of illegal substances or to restrain violent drug cartels. In June of 2011, the Global Commission on Drug Policy released a report that unequivocally stated: "The global war on drugs has failed, with devastating consequences for individuals and societies around the world."

According to Mark Kleiman, Professor of Public Policy at UCLA and an expert on drug abuse and crime control policy, the drug war “is a very costly endeavor, unnecessarily so” and it is “inadequately effective, because many of the policies are foolish.”

Simply legalizing pot however, whether one agrees with the policy or not, would fall short of addressing the issue. “Marijuana accounts for a large fraction of arrests but a small fraction of incarcerations,” says Kleiman, “90% of the people in prison for drug law violations are there for drugs other than marijuana.”

For libertarian-inclined Americans, the answer to this puzzle is a no-brainer. “I think everything should be legal,” says Miron, “attempts to restrict access don’t have very much success, so I think we should be more honest and emphasize a more responsible use, as in ‘don’t drink and drive’ kind of policies.” However, Miron is the first to admit that this remains a minority view in the United States and that it is not going to go mainstream any time soon.

“People who believe that legalizing marijuana will end the sufferings of the drug war are simply wrong,” says Kleiman, “unless they intend to legalize all drugs, for which there is no public support.” Kleiman, who is a big critic of the war on drugs, also faults marijuana legalization advocates for muddling the water in a way that is detrimental to a serious debate on the issue. “The drug warriors and the drug legalizers together have created the false impression that our choice is between the war on drugs or legalization, and that’s false,” he says.

Other proposals on the table that would change current policy without requiring a complete overhaul of the American justice system include removing criminal penalties for possession and reducing the length of sentences for trafficking. Kleiman believes the key is to focus more on repeated and violent drug offenders and that a program like South Dakota’s “Sobriety 24/7” (by which people convicted of drunk driving twice are required to take a breathalyzer test every morning and, if they fail, are sent to jail for a couple days) could successfully be applied to them as well.

A similar approach could also work internationally. “In my view one of the huge negatives of US policy is that we pressure other countries to follow our lead, yet the effects have been just utterly horrific,” says Harvard Professor Jeffrey Miron. “My guess is that many countries in Latin America would be much more willing to consider legalization if it weren’t for American pressure.” Short of full-blown legalization of all drugs (which would probably be pointless unless the US and Europe, which drive demand and prices, went the same way,) they could also be prompted by Washington to shift their enforcement strategy by only going after dangerous drug traffickers. “We should not be asking those governments to reduce the overall drug volumes,” says UCLA Professor Mark Kleiman, “we should ask them to protect their public safety, go after their violent dealers.”

Already, the newly elected President of Mexico Enrique Peña Nieto has outlined a new plan to combat drugs and drug related violence, which departs from the all-out-war against cartels pursued by his predecessor Felipe Calderón with Washington’s support. Peña Nieto has promised to concentrate more on fighting crime that affects ordinary citizens.

In a long article that appeared in the November 2012 issue of the New York Magazine, journalist Benjamin Wallace-Wells called this new era of drug control policy “the truce on drugs.” A shift that might be harder to detect than legalization would, but which is not necessarily less substantial and which might at least put the US and the rest of the world on the right path, away from four unsuccessful decades of the war on illegal substances.