CRITICS SCAPEGOAT THE ANTIDRUG LAWS

An oft-repeated mantra of both the liberal left and the far right is that
antidrug laws do greater harm to society than illicit drugs. To defend this
claim, they cite high rates of incarceration in the United States compared
with more drug-tolerant societies. In this bumper-sticker vernacular, the
drug war in the United States has created an "incarceration nation."

But is it true? Certainly rates of incarceration in the United States are
up (and crime is down). Do harsh antidrug laws drive up the numbers? Are
the laws causing more harm than the drugs themselves? These are questions
worth exploring, especially if their presumptive outcome is to change
policy by, say, decriminalizing drug use.

It is, after all, an end to the "drug war" that both the left and the right
say they want. For example, William F. Buckley Jr. devoted the Feb. 26,
1996, issue of his conservative journal, National Review, to "the war on
drugs," announcing that it was lost and bemoaning the overcrowding in state
prisons, "notwithstanding that the national increase in prison space is
threefold since we decided to wage hard war on drugs." James Gray, a
California judge who speaks often on behalf of drug-decriminalization
movements, devoted a major section of his book, Why Our Drug Laws Have
Failed and What We Can Do About It, to what he calls the "prison-industrial
complex." Ethan Nadelmann, executive director of the Drug Policy Alliance
and perhaps the most unabashed of the "incarceration-nation" drumbeaters,
says in his Web article, "Eroding Hope for a Kinder, Gentler Drug Policy,"
that he believes "criminal-justice measures to control drug use are mostly
ineffective, counterproductive and unethical" and that administration
"policies are really about punishing people for the sin of drug use."
Nadelmann goes on to attack the drug-court system as well, which offers
treatment in lieu of incarceration, as too coercive since it uses the
threat of the criminal-justice system as an inducement to stay the course
on treatment.

In essence, the advocates of decriminalization of illegal drug use assert
that incarceration rates are increasing because of bad drug laws resulting
from an inane drug war, most of whose victims otherwise are well-behaved
citizens who happen to use illegal drugs. But that infraction alone, they
say, has led directly to their arrest, prosecution and imprisonment,
thereby attacking the public purse by fostering growth of the prison
population.

Almost constant repetition of such assertions, unanswered by voices
challenging their validity, has resulted in the decriminalizers gaining
many converts. This in turn has begotten yet stronger assertions: the drug
war is racist (because the prison population is overrepresentative of
minorities); major illegal drugs are benign (ecstasy is "therapeutic,"
"medical" marijuana is a "wonder" drug, etc.); policies are polarized as
"either-or" options ("treatment not criminalization") instead of a search
for balance between demand reduction and other law-enforcement programs;
harm reduction (read: needle distribution, heroin-shooting "clinics," "safe
drug-use" brochures, etc.) becomes the only "responsible" public policy on
drugs.

But the central assertion, that drug laws are driving high prison
populations, begins to break down upon closer scrutiny. Consider these
numbers from the U.S. Bureau of Justice Statistics compilation, Felony
Sentences in State Courts, 2000. Across the United States, state courts
convicted about 924,700 adults of a felony in 2000. About one-third of
these (34.6 percent) were drug offenders. Of the total number of convicted
felons for all charges, about one-third (32 percent) went straight to
probation. Some of these were rearrested for subsequent violations, as were
other probationers from past years. In the end, 1,195,714 offenders entered
state correctional facilities in 2000 for all categories of felonies. Of
that number, 21 percent were drug offenders. Seventy-nine percent were
imprisoned for other crimes.

Therefore, about one-fifth of those entering state prisons in 2000 were
there for drug offenses. But drug offenses comprise a category consisting
of several different charges, of which possession is but one. Also included
are trafficking, delivery and manufacturing. Of those incarcerated for drug
offenses only about one-fourth (27 percent) were convicted of possession.
One-fourth of one-fifth is 5 percent. Of that small amount, 13 percent were
incarcerated for marijuana possession, meaning that in the end less than 1
percent (0.73 percent to be exact) of all those incarcerated in state-level
facilities were there for marijuana possession. The data are similar in
state after state. At the high end, the rates stay under 2 percent.
Alabama's rate, for example, was 1.72 percent. At the low end, it falls
under one-tenth of 1 percent. Maryland's rate, for example, was 0.08
percent. The rate among federal prisoners is 0.27 percent.

If we consider cocaine possession, the rates of incarceration also remain
low - 2.75 percent for state inmates, 0.34 percent for federal. The data,
in short, present a far different picture from the one projected by drug
critics such as Nadelmann, who decries the wanton imprisonment of people
whose offense is only the "sin of drug use."

But what of those who are behind bars for possession? Are they not
otherwise productive and contributing citizens whose only offense was
smoking a joint? If Florida's data are reflective of the other states - and
there is no reason why they should not be - the answer is no. In early
2003, Florida had a total of 88 inmates in state prison for possession of
marijuana out of an overall population of 75,236 (0.12 percent). And of
those 88, 40 (45 percent) had been in prison before. Of the remaining 48
who were in prison for the first time, 43 (90 percent) had prior probation
sentences and the probation of all but four of them had been revoked at
least once. Similar profiles appear for those in Florida prisons for
cocaine possession (3.2 percent of the prison population in early 2003).
They typically have extensive arrest histories for offenses ranging from
burglary and prostitution to violent crimes such as armed robbery, sexual
battery and aggravated assault. The overwhelming majority (70.2 percent)
had been in prison before. Of those who had not been imprisoned previously,
90 percent had prior probation sentences and the supervision of 96 percent
had been revoked at least once.

The notion that harsh drug laws are to blame for filling prisons to the
bursting point, therefore, appears to be dubious. Simultaneously, the
proposition that drug laws do more harm than illegal drugs themselves falls
into disarray even if we restrict our examination to the realm of drugs and
crime, overlooking the extensive damage drug use causes to public health,
family cohesion, the workplace and the community.

Law-enforcement officers routinely report that the majority (i.e., between
60 and 80 percent) of crime stems from a relationship to substance abuse, a
view that the bulk of crimes are committed by people who are high, seeking
ways to obtain money to get high or both. These observations are supported
by the data. The national Arrests and Drug Abuse Monitoring (ADAM) program
reports on drugs present in arrestees at the time of their arrest in
various urban areas around the country. In 2000, more than 70 percent of
people arrested in Atlanta had drugs in their system; 80 percent in New
York City; 75 percent in Chicago; and so on. For all cities measured, the
median was 64.2 percent. The results are equally disturbing for cocaine use
alone, according to Department of Justice statistics for 2000. In Atlanta,
49 percent of those arrested tested positive for cocaine; in New York City,
49 percent; in Chicago, 37 percent. Moreover, more than one-fifth of all
arrestees reviewed in 35 cities around the nation had more than one drug in
their bodies at the time of their arrest.

If the correlation between drug use and criminality is high for adults, the
correlation between drug use and misbehavior among youth is equally high.
For children ages 12 to 17, delinquency and marijuana use show a
proportional relationship. The greater the frequency of marijuana use, the
greater the incidents of cutting class, stealing, physically attacking
others and destroying other peoples' property. A youth who smoked marijuana
six times in the last year was twice as likely physically to attack someone
else than one who didn't smoke marijuana at all. A child who smoked
marijuana six times a month in the last year was five times as likely to
assault another than a child who did not smoke marijuana. Both delinquent
and aggressive antisocial behavior were linked to marijuana use - the more
marijuana, the worse the behavior.

Even more tragic is the suffering caused children by substance abuse within
their families. A survey of state child-welfare agencies by the National
Committee to Prevent Child Abuse found substance abuse to be one of the top
two problems exhibited by 81 percent of families reported for child
maltreatment. Additional research found that chemical dependence is present
in one-half of the families involved in the child-welfare system. In a
report entitled No Safe Haven: Children of Substance-Abusing Parents, the
National Center on Addiction and Substance Abuse at Columbia University
estimates that substance abuse causes or contributes to seven of 10 cases
of child maltreatment and puts the federal, state and local bill for
dealing with it at $10 billion.

Are the drug laws, therefore, the root of a burgeoning prison population?
And are the drug laws themselves a greater evil than the drugs themselves?
The answer to the first question is a clear no. When we restricted our
review to incarcerated felons, we found only about one-fifth of them were
in prison for crimes related to drug laws. And even the miniscule
proportion that were behind bars for possession seemed to have serious
criminal records that indicate criminal behavior well beyond the possession
charge for which they may have plea-bargained, and it is noteworthy that 95
percent of all convicted felons in state courts in 2000 pleaded guilty,
according to the Bureau of Justice Statistics.

The answer to the second question also is no. Looking only at crime and
drugs, it is apparent that drugs drive crime. While it is true that no
traffickers, dealers or manufacturers of drugs would be arrested if all
drugs were legal, the same could be said of drunk drivers if drunken
driving were legalized. Indeed, we could bring prison population down to
zero if there were no laws at all. But we do have laws, and for good
reason. When we look beyond the crime driven by drugs and factor in the
lost human potential, the family tragedies, massive health costs, business
losses and neighborhood blights instigated by drug use, it is clear that
the greater harm is in the drugs themselves, not in the laws that curtail
their use.