In 1996, then-Speaker of the House Newt Gingrich introduced the Drug Importer Death Penalty Act which, as the name implies, would have imposed the death penalty on those who imported a sufficient amount of marijuana or other illegal drugs into the United States on more than one occasion. (Hat tip: Ezra Klein)
Archive for the ‘War on Drugs’ Category
On Tuesday, January 10 at noon, I will be speaking on the War on Drugs at a panel organized by the University of Chicago Law School Federalist Society. I will discuss the ways in which the War on Drugs undermines constitutional federalism, some of the harm it inflicts on our society, and recent changes in public and elite opinion that may make it easier to promote change in this field. Also taking part in the panel will be Cook County Commissioner John Fritchey.
The NYT profiles two law enforcement officers — a border patrol agent and a probation officer in Arizona — who lost their jobs because they questioned the wisdom of drug prohibition. One signed a letter sponsored by LEAP (Law Enforcement Against Prohibition), the other just expressed doubts to co-workers about keeping marijuana illegal. Both are now filing suit challenging their dismissals.
The NYT reports that two governors, Washington’s Christine Gregoire and Rhode Island’s Lincoln Chafee, have petitioned the federal government to have marijuana reclassified as a Schedule II substance under the Federal Drug Control Act. The reclassification would mean recognizing that marijuana has acceptable medical uses, and would be a step toward protecting medical marijuana use in the 16 states that currently permit it.
Radley Balko has an interesting piece at Huffington Post on the ways in which the War on Drugs creates perverse incentives for police departments:
Arresting people for assaults, beatings and robberies doesn’t bring money back to police departments, but drug cases do in a couple of ways. First, police departments across the country compete for a pool of federal anti-drug grants. The more arrests and drug seizures a department can claim, the stronger its application for those grants.
“The availability of huge federal anti-drug grants incentivizes departments to pay for SWAT team armor and weapons, and leads our police officers to abandon real crime victims in our communities in favor of ratcheting up their drug arrest stats,” said former Los Angeles Deputy Chief of Police Stephen Downing. Downing is now a member of Law Enforcement Against Prohibition, an advocacy group of cops and prosecutors who are calling for an end to the drug war.
“When our cops are focused on executing large-scale, constitutionally questionable raids at the slightest hint that a small-time pot dealer is at work, real police work preventing and investigating crimes like robberies and rapes falls by the wayside,” Downing said.
And this problem is on the rise all over the country. Last year, police in New York City arrested around 50,000 people for marijuana possession. Pot has been decriminalized in New York since 1977, but displaying the drug in public is still a crime. So police officers stop people who look “suspicious,” frisk them, ask them to empty their pockets, then arrest them if they pull out a joint or a small amount of marijuana. They’re tricked into breaking the law. According to a report from Queens College sociologist Harry Levine, there were 33,775 such arrests from 1981 to 1995. Between 1996 and 2010 there were 536,322.
Several NYPD officers have alleged that in some precincts, police officers are asked to meet quotas for drug arrests. Former NYPD narcotics detective Stephen Anderson recently testified in court that it’s common for cops in the department to plant drugs on innocent people to meet those quotas — a practice for which Anderson himself was then on trial.
At the same time, there’s increasing evidence that the NYPD is paying less attention to violent crime. In an explosive Village Voice series last year, current and former NYPD officers told the publication that supervising officers encouraged them to either downgrade or not even bother to file reports for assault, robbery and even sexual assault.
Even when police officials don’t consciously prioritize drug crimes ahead of violent crimes, the vast expenditure of law enforcement resources on the former probably reduces the amount of police effort that can be devoted to the latter.
Later in the article, Balko notes that the War on Drugs also incentivizes police departments to shift resources away from violent crime because drug busts allow them to earn extra money through asset forfeiture, while solving violent crime usually does not:
The most perverse policy may be asset forfeiture. Under civil asset forfeiture, police can seize property from people merely suspected of drug crimes. So long as police can show even the slightest link of drug activity to a car, some cash, or even a home, they can seize it. In the majority of cases, most or all of the seized cash goes back to the police department. In some cases, the department has taken possession of cars as well, but generally non-cash property is auctioned off, with the proceeds then going back to the department. An innocent person who has property seized must go to court and prove his property was earned legitimately, even if he was never charged with a crime. The process of going to court can often be more expensive than the value of the property itself.
Asset forfeiture not only encourages police agencies to use resources and manpower on drug crimes at the expense of violent crimes, it also provides an incentive for police agencies to actually wait until drugs are on the streets before making a bust.
I wrote about the ways in asset forfeiture threaten constitutional property rights here.
This Monday at noon, I will be taking part in a Federalist Society panel on the War on Drugs at the University of Arkansas School of Law. Joining me will be University of Arkansas lawprofs Mark Killenbeck (constitutional law) and Laurent Sacharoff (criminal law).
This is a very timely event because both public and elite support for the War on Drugs is rapidly eroding. Public support for marijuana legalization recently broke 50% for the first time, and a variety of groups such as the NAACP, the Global Commission on Drug Policy, and a prominent British panel have called for an end to the War on Drugs this year. Although the Obama administration has so far failed to take advantage of it, there is now much broader political support for at least scaling back the War on Drugs than ever before.
A new Gallup poll shows that public support for legalizing the possession of marijuana has now hit a record-high 50%, up from 46% last year [HT: Tom Angell of Law Enforcement Against Prohibition]. Forty-six percent still oppose legalization. This continues a longstanding trend under which support for legalization has gradually but consistently risen from 12% in 1970 to today’s figure.
Moreover, the trend towards increasing public support for legalization is likely to continue. Like previous data, the new Gallup poll shows that support for legalization is higher the younger the respondents are. Some 62% of people age 18-29 support legalization, compared to 31% of those 65 and over. As I discussed in this post, this is mostly a generational effect, under which members of later generations are consistently more likely to support legalization than their elders. It is not a cohort effect, under which people support legalization when young but tend to change their minds as they age. Every age group in the Gallup survey is substantially more likely to support legalization than the one immediately older. Even the 50-64 group supports legalization at a 49% rate. Moreover, the longterm trend in aggregate opinion also reinforces the idea that we are witnessing a generation effect. If it was just a cohort effect, we should not see an increase in overall support for legalization over time. Indeed, opinion should have trended the other way, since the average age of the population is today considerably higher than in 1970.
Unfortunately, the new poll continues to show that self-described conservatives are among those least likely to support legalization (34%). I made the conservative case against the War on Drugs here, here, and here. Check out also William F. Buckley’s classic article on the subject. As he put it, “it is outrageous to live in a society whose laws tolerate sending young people to life in prison because they grew, or distributed, a dozen ounces of marijuana.”
To avoid confusion, I am not suggesting that marijuana legalization is a good idea merely because public opinion increasingly supports it. I think majority opinion is wrong about a great many things, in part because of the influence of political ignorance. Rather, the trend in public opinion is important because it increase the likelihood that legalization will become politically viable.
Obviously, majority opinion is not the only factor influencing drug policy. A lot of organized interest groups benefit from the War on Drugs, including prison guard unions, construction firms that build prisons, various government contractors, and many law enforcement agencies for whom it generates funding. Nonetheless, public opinion does have a substantial impact of its own. If we get to the point where 60 or 70% of the public supports legalization, I predict that the status quo is likely to become politically untenable even in spite of interest group lobbying. And, if present trends continue, we might well reach 60% support within the next 10-12 years.
The House Judiciary Committee recently passed a bill that would make it a crime for Americans to plan or even discuss any activities abroad that would violate federal drug laws if they occurred in the US – even if the acts in question are completely legal in the countries where they actually take place. Radley Balko has the disturbing details:
The House Judiciary Committee passed a bill yesterday that would make it a federal crime for U.S. residents to discuss or plan activities on foreign soil that, if carried out in the U.S., would violate the Controlled Substances Act (CSA) — even if the planned activities are legal in the countries where they’re carried out. The new law, sponsored by Judiciary Committee Chairman Rep. Lamar Smith (R-Texas) allows prosecutors to bring conspiracy charges against anyone who discusses, plans or advises someone else to engage in any activity that violates the CSA, the massive federal law that prohibits drugs like marijuana and strictly regulates prescription medication.
“Under this bill, if a young couple plans a wedding in Amsterdam, and as part of the wedding, they plan to buy the bridal party some marijuana, they would be subject to prosecution,” said Bill Piper, director of national affairs for the Drug Policy Alliance, which advocates for reforming the country’s drug laws. “The strange thing is that the purchase of and smoking the marijuana while you’re there wouldn’t be illegal. But this law would make planning the wedding from the U.S. a federal crime.”
If the law passes the full House and then the Senate, it would be illegal for Americans to do things like plan to smoke marijuana in the Netherlands or Portugal, or other countries where pot is legal. As Radley points out, the law would also have a negative impact on medical professionals who work abroad with drugs that are illegal in the US. Hopefully, this ill-conceived bill will die in Congress, perhaps in the Senate. If not, it will be interesting to see whether Obama would be willing to veto it. So far, the president has disappointed civil libertarian supporters who hoped that he would curb the War on Drugs. He has even reneged on his popular campaign promise to end federal medical marijuana prosecutions in states where medical marijuana is legal. Hopefully, this bill will be a bridge too far (or perhaps a joint too far) even for this administration.
Justices Stephen Breyer and Antonin Scalia testified before the Senate Judiciary Committee yesterday. Scalia made the interesting argument that the creation of numerous federal drug crimes has reduced the quality of the federal judiciary:
Testifying before a Senate committee Wednesday, Scalia blamed Congress for making federal crimes out of too many routine drug cases. In turn, that created a need for more judges.
Federal judges ain’t what they used to be,” he said during a rare appearance before the Senate Judiciary Committee..
The federal judiciary should be an elite group, said Scalia, who has served on the high court for 25 years. “It’s not as elite as it used to be,” he said.
He was responding to a question about what he sees as the greatest threat to the independence of judges.
I am no fan of either the War on Drugs or the federalization of criminal law. I’m even less of a fan of the combination of the two. And Scalia is certainly right to criticize Congress for federalizing too many petty drug crimes. Unfortunately, however, he himself has contributed to the problem (at least at the margin) by voting to uphold one of Congress’ most constitutionally dubious extensions of federal drug law in Gonzales v. Raich, which I discussed here.
In this Reason article, Jacob Sullum documents the Obama administration’s disappointing record on the War on Drugs. Although as a Senator and presidential candidate Obama expressed strong support for liberalizing drug laws, as president he has done almost nothing on that score, and in some areas he has even tightened up enforcement. The administration has even reneged on the president’s popular campaign promise to end medical marijuana raids in states where medical marijuana is legal under state law.
It would be wrong to blame Obama alone for policies that have developed over the course of several decades. Nor would it be realistic to expect him to end the War on Drugs in one fell swoop. The real tragedy of his record in this area is that he has not even taken incremental steps that enjoy strong popular support, such as legalizing medical marijuana and cutting back on draconian sentences for low-level drug offenders. Even full legalization of marijuana gets about 46% support in polls, which is a higher level of popularity than Obama himself enjoys right now. It’s also worth noting that Obama has backtracked on his previous commitments on the War on Drugs at the very time when lots of prominent groups are calling for an end to the War.
The administration does deserve credit for curbing drug interdiction in Afghanistan, which had previously done much to undermine the War on Terror there. On the home front, however, the Administration’s War on Drugs policy has been a disappointment to all but committed drug warriors.
Cato Unbound has an interesting symposium on the changing status of men in society, including a lead essay by Kay Hymowitz arguing that men are in decline and “falling behind.” The idea that the men are declining is not unique to Hymowitz. Anthropologist Lionel Tiger has a book advancing the same thesis. Other writers have also taken up this mantra.
But the evidence underpinning the case for male decline doesn’t add up. Most of it consists of the well-known facts that men now have slightly lower levels of educational attainment compared to women, and never-married men trail comparable women in income. However, there is no actual decline in male performance in either field. Rather, what has happened is that women are doing much better than before thanks to economic and social changes that have opened up new opportunities for them. When several European nations lifted legal disabilities imposed on Jews in the 19th century, the percentage of Jews in various occupations and educational institutions rapidly increased, and the percentage of gentiles in the same fields fell. Obviously, gentiles were not “in decline.” Rather, Jews were doing better because of the easing of discrimination against them. Much the same can be said of women over the last few decades. On balance, men actually benefit from the rise of women, just as gentiles benefited from that of the Jews. Everyone is better off when society is able to more fully benefit from developing the talents of more of its people.
Nineteenth and early century anti-Semitism flourished in part because many Europeans didn’t understand that the economy wasn’t a zero-sum game in which gains for Jews can only come at the expense of gentiles. Today’s fears that economic gains for women somehow harm men are similarly misplaced. Even if women end up out-earning men (which they are still far from doing), that does not mean that men have been harmed, any more than gentiles suffer because of the much higher average income and educational attainment of Jews.
It’s also worth noting that men continue to dominate the highest levels of achievement in many occupations, in part because the variation in male achievement is greater than that among women. Men are more likely to become high school dropouts than women (thereby explaining some of the data cited by Hymowitz), but they are also more likely to be at the top of the class or their profession.
Hymowitz also argues that men have suffered because of the “collapse of marriage norms.” However, the data shows that only about 20% of men aged 40-44 have never been married. And even that twenty percent doesn’t all consist of people deprived of marriage opportunities by social change. Some men (like some women) simply don’t want to be married, and anywhere from 3 to 9 percent of men are gay (gay marriage is a recent phenomenon, and is still available in only a few states). Marriage continues to be available to those men who want it. And despite Hymowitz’s concern that men have lost their status as providers for the family, married men who live with their spouses still have incomes about a third higher than those of married women. Whether or not married men should be the primary bread-winners in their families, the majority still are.
Hymowitz does identify two genuine areas of male decline. It is certainly true, that men have suffered a relative loss from the diminishing importance of occupations where physical strength is a key job qualification. On balance, however, men – like women – have benefited enormously form the rise of modern technology that has displaced work previously performed by human brawn. It has made an enormous range of goods more readily available to a wide range of people at lower prices. Men who rely on physical strength to make a living were relatively more in demand fifty years ago. But their overall standard of living was far lower than today.
Hymowitz is on firmer ground in pointing to the extremely low marriage rates and high rates of single-parenthood among poor African-Americans and Hispanics. This is a genuine social tragedy. But it has little to do with any broader decline of the male gender. Rather, it is in large part caused by the War on Drugs, which imprisons a high percentage of young inner city males, thereby making family formation extremely difficult. The best way to begin to restore family values in poor minority communities is to end the War on Drugs. That’s likely to be a lot more helpful than worrying about the supposed decline of males.
UPDATE: I should note that Hymowitz doesn’t, in so many words, say that men are in decline, merely that they are “falling behind.” That phrasing is consistent with a view that men are better off than before, but merely haven’t made as many gains as women have in recent years. Still, it’s hard to justify concern about men “falling behind” unless there is some actual harm to men involved, as opposed to merely having slightly lower educational attainment (and among the never-married, slightly lower income) than women.
The NAACP recently adopted a resolution calling for the abolition of the War on Drugs, emphasizing the harm that it inflicts on minority communities. This is a sea change for the nation’s most prominent black civil rights organization.
The NAACP resolution is far from the first indication that the War on Drugs inflicts great harm on poor minorities. Scholars and commentators of widely divergent ideologies have long recognized this point. I previously blogged about it here and here. Nonetheless, the NAACP resolution is a milestone because of the organization’s prestige. The NAACP now joins a growing list of prominent groups that have called for an end to the War on Drugs in recent months, including the Global Commission on Drug Policy and a high-profile British government commission.
Complete abolition of the War on Drugs is not yet politically feasible. But the increasing recognition that the war causes more harm than good does create some political space to move towards that goal in an incremental way. Sadly, the Obama Administration refuses to take even the most modest and politically popular steps towards legalization. In fairness, most Republicans have been as bad or worse on the issue. Change we can believe in may well be coming in this field. But it may take a few more years of generational replacement for it to happen.
In the meantime, we can at least add this one to the list of issues where the NAACP and I agree.
I recently did a Bloggingheads TV dialogue with Glenn Greenwald, a prominent liberal legal blogger. We focused on several ongoing legal controversies, including the debate over legality of the Libya war, the constitutional controversy over the debt limit, and recent developments in the War on Drugs. It turns out that there was a high degree of agreement between us on all three of these issues (somewhat predictably on the first and third, but less so on the second). Bloggingheads TV has also put together a helpful compilation of links to articles and posts mentioned in our discussion, including some of our previous writings on the relevant issues.
Thanks to Glenn for his insightful comments, and to Bloggingheads TV for organizing this event.
Walter Russell Mead has an interesting post on the failure of the drug war, and what might come next. This passage sums up so much of what is wrong with the current approach.
The Drug War, with an impact stretching far beyond the inner cities, is one of America’s worst policies. It costs billions we don’t have; it promotes the growth of transnational criminal gangs and supports large black markets in money and arms that terrorists as well as drug lords can use; if fills the prisons and it hasn’t stopped either the use of existing illegal drugs or the development of new ones. . . .
What we are doing now isn’t working. My old CFR colleague and Coast Guard official Steve Flynn used to say that if terrorists wanted to smuggle a nuclear warhead into the United States their best bet would be to hide it in a shipment of cocaine. Since our interdiction rate is so low, the bomb would have an excellent chance of getting through.
The drug war inevitably leads to corruption in the forces recruited to fight it. It erodes civil liberties. It diverts law enforcement resources from other tasks. In a society which believes that lap dancers in strip bars are exercising their constitutionally protected right of free expression and that virtually any government interference in the termination of unborn life is an obscene and inexcusable violation of the right to privacy, it is hard to find good reasons why government should have the right to tell us what chemicals to put in our bloodstreams.
This is all too true. The question is what to do about it. Here Mead offers some caution. Marijuana legalization may be an easy call (at least for us non-politicians). Moving toward legalization of other drugs could be more difficult. Still, even accounting for Mead’s cautionary notes, it’s hard to believe legalization would be worse than what we have now.
Back in October 2009, the Obama Justice Department issued a memo that some interpreted as discouraging federal raids on medical marijuana dispensaries operating in states where medical marijuana is permitted under state law. I pointed out at the time that the memo imposed few if any genuine restrictions on federal prosecution of medical marijuana producers. Certainly, it fell far short of implementing Barack Obama’s 2008 campaign promise to stop medical marijuana prosecutions in states where medical marijuana is legal.
Now the Justice Department has issued a new memo to federal prosecutors emphasizing that it has no intention of discouraging federal medical marijuana prosecutions, regardless of state law:
The Department’s view of the efficient use of limited federal resources as articulated in the [2009] Ogden Memorandum has not changed. There has, however, been an increase in the scope of commercial cultivation, sale, distribution and use of marijuana for purported medical purposes…..
The Ogden Memorandum was never intended to shield such activities from federal enforcement action and prosecution, even where those activities purport to comply with state law. Persons who are in the business of cultivating, selling or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the Controlled Substances Act, regardless of state law. Consistent with resource constraints and the discretion you may exercise in your district, such persons are subject to federal enforcement action, including potential prosecution. [emphasis added]
Some will argue that the administration has no choice but to enforce these laws. However, prosecutorial discretion gives the executive the power to decide not to pursue these cases if the president so chooses. Indeed, the federal government can only prosecute a small fraction of the numerous violations of today’s overbloated federal criminal law. The average American commits about three federal felonies every day. Every administration must inevitably prioritize some federal laws over others.
There is no legal obstacle preventing the president from keeping his campaign promise. The problem is lack of political will. The hesitation is remarkable in light of the fact that polls show that some 81 percent of the public supports legalization of medical marijuana.
Democratic Representative Barney Frank and Republican Ron Paul recently introduced a bill that would repeal the federal law banning marijuana:
The legislation would eliminate marijuana-specific penalties under federal law, but would maintain a ban on transporting marijuana across state lines. It would allow individuals to grow and sell marijuana in states that make it legal.
The bill has no chance of passing the Republican-controlled House.
The bill was introduced by Democrat Barney Frank of Massachusetts and Ron Paul, a Texas Republican running for his party’s presidential nomination.
Four Democrats are co-sponsors: John Conyers of Michigan, Barbara Lee of California, Jared Polis of Colorado and Steve Cohen of Tennessee.
As the Washington Post notes in the article quoted above, the bill has no chance of actually passing. Nevertheless, it is a step forward for legalization advocates. It’s the first time such a bill has been introduced in Congress. It is also significant that the sponsors include big-name Democratic politicians like Frank, Conyers, and Lee. They are fairly prominent, mainstream Democratic pols. Ron Paul, unfortunately, is far more isolated within his own party. In recent years, public opinion has become much more favorable towards marijuana legalization, with 46 percent of the public now supporting it. This bill is another sign that legalization is becoming less marginal and more of a mainstream cause.
On the other hand, it is unfortunate that this essentially federalist bill hasn’t attracted any support from conservatives, especially the Tea party faction. After all, the bill does not require nationwide legalization, but merely leaves it up to each state to decide for itself. One of the main themes of the Tea Party is their insistence that the federal government has exceeded its constitutional bounds. The War on Drugs is a particularly extreme example of such federal overreach. Indeed, the federal ban on marijuana is responsible for Gonzales v. Raich, the Supreme Court’s broadest and most questionable interpretation of federal power so far (which I criticized in this article). Raich held that Congress’ power to regulate interstate commerce was broad enough to justify a ban on the possession of medical marijuana that had never been sold in any market or ever crossed state lines.
Every lower court decision upholding the constitutionality of the Obamacare individual mandate has relied heavily on Raich. In my view, the mandate goes even further than Raich did. But there’s no doubt that Raich makes life more difficult for mandate opponents. A political movement that is serious about constraining federal power cannot, consistent with its principles, support the present sweeping federal War on Drugs.
House Budget Committee Chairman Rep. Lamar Smith seemed to cite Raich in his confused justification for refusing to let his committee consider the proposed legalization bill. He claims that “[a]llowing states to determine their own marijuana policy flies in the face of Supreme Court precedent.” In reality, Raich merely permits a federal ban on marijuana, but does not require it. More importantly, neither the real Raich nor Smith’s dubious interpretation can be squared with the sorts of strict constitutional limits on federal power that Tea Party conservatives advocate.
UPDATE: It turns out that liberal Republican Senator Jacob Javits and Democrat Ed Koch (later to become Mayor of New York) introduced a bill to decriminalize marijuana back in 1977. Other decriminalization proposals have been introduced in the past as well, including by Frank and Paul in 2009. The current proposal goes beyond decriminalization and includes actual legalization. Decriminalization still leaves in place civil penalties for possession and, in some proposals, criminal punishment for sale. By contrast, legalization would eliminate both.
Today is the 40th Anniversary of Richard Nixon’s Declaration of the War on Drugs. Coincidentally, it comes on the heels of declarations by international and British commissions that the War has been a miserable and costly failure. Over the last four decades, the War on Drugs has killed tens of thousands of people, imprisoned hundreds of thousands, and inflicted severe damage on family values. It is long past time that we declared defeat.
In theory, the War is already over. The Obama Administration’s “drug czar” said so over two years ago. But as this recent report by Law Enforcement Against Prohibition shows, the reality has not matched the rhetoric. On the ground, the federal government continues to wage the war as aggressively as ever. The administration hasn’t even kept the President’s 2008 campaign promise to stop prosecutions of medical marijuana users in states where medical marijuana is legal. Instead, federal prosecutors have actually escalated prosecutions in such states.
It would be silly to saddle the present administration with the sole blame for a policy that has continued for forty years. President Obama does, however, have an unprecedented opportunity to do something about the problem. Public opinion is more favorable to legalization efforts than ever, with 46% in favor of full legalization of marijuana. Majority opinion isn’t ready for full legalization across the board. But it would likely support, or at least tolerate, significant steps in that direction. Much good can be accomplished by a president with even modest political courage.
The Obama Administration does deserve credit for cutting back on the War on Drugs in Afghanistan, which had previously severely undermined the War on Terror. It is not too late for the president to demonstrate similar good sense and courage with respect to the War on Drugs here at home.
The Global Commission on Drug Policy recently issued a report concluding that “[t]he global war on drugs has failed, with devastating consequences for individuals and societies around the world.” It points out that fifty years of international drug prohibition policies have had little impact on drug consumption (which continued to rise), but has caused enormous harm. The report urges governments to “[e]nd the criminalization, marginalization and stigmatization of people who use drugs but who do no harm to others.”
Many of the points in the report are not new; to a large extent, it summarizes previously available data and academic research. Its main significance arises from the high status and ideological diversity of the Commission members. They include a variety of prominent policy makers and public figures, including Greek Prime Minister George Papandreou, former Mexican President Ernesto Zedillo, and former UN Secretary General Kofi Annan. On the political right, we have former Reagan Administration Secretary of State George Shultz, Paul Volcker, and Nobel Prize-winning author Mario Vargas Llosa, a prominent libertarian and former Peruvian presidential candidate. The Global Commission Report comes just a few weeks after a high-profile British panel (which also included prominent conservatives) reached a similar conclusion.
Libertarians, economists, and my fellow constitutional theorists are all known for arguing that the conventional wisdom overstates the importance of individual political leaders. Instead, we emphasize the the constraining impact of institutions, public opinion, and political incentives. The structure of the system matters a lot more than the individual leader. Libertarian economist Bryan Caplan, however, recently argued that a great leader could do a lot more good than most libertarians believe:
I maintain that an intelligent, wise, brave president could do enormous good. How? For starters, he could give full presidential pardons to everyone serving time for (federal) drug-related offenses. The president can’t end the drug war on his own, but he could free hordes of innocent people before his term (singular, no doubt) ran out.* And needless to say, there are plenty of other unjust laws a president could negate with blanket pardons.
The lesson: Libertarians should stop insisting that our problems are too complex for any human being to solve. Many of our problems can literally be solved with the stroke of a pen. Any intelligent, wise, brave leader who wants to solve problems faces vast orchards of low-hanging fruit. The only reason the orchards are so bountiful, unfortunately, is that people who are intelligent, wise, and brave rarely make it to the top.
Bryan’s main point is well taken. An “intelligent, wise, brave president” unconcerned about reelection could do a lot of good that conventional politicians avoid for fear that it would hurt their electoral prospects. By the same token, such a leader could also do a lot of harm, if his unpopular policies turn out to be worse than those preferred by the electorate. At the same time, as Bryan recognizes, it’s no accident that such leaders “rarely make it to the top.” The political process systematically advantages those candidates who prioritize seizing and holding on to power over those who are willing to sacrifice office for the sake of principle.
In addition, Bryan somewhat overstates the good that even a president totally indifferent to his political fate can do in the unlikely event that he could get elected in the first place. Such a leader would still have to trim his sails somewhat in order to avoid a political backlash that makes things worse than they were before. Consider Bryan’s example of a president who decides to pardon everyone serving time for federal drug-related offenses. That policy would be extremely unpopular. It will be even more so if even one or two of the pardoned drug dealers goes on to commit a highly publicized murder or other serious crime.
In response, Congress might well enact broader and more punitive anti-drug laws; even if the incumbent vetoes them, his successor would not. The next president would sweep into office on a pro-drug war platform; quite possibly, he would order federal prosecutors and law enforcement agencies to pursue the War on Drugs more aggressively than before. There might be a similar backlash at the state level (the states imprison many more drug offenders than the feds do). The cause of drug legalization, which has been slowly gaining ground over the last several decades, would suffer a significant political setback. The net result could well be a long-term increase in the number of people imprisoned for nonviolent drug offenses. Other principled but highly unpopular policies could backfire in similar ways.
That said, there is much that a politically brave president opposed to the War on Drugs could do to make things better without generating a massive backlash. He could order federal prosecutors to deemphasize drug prosecutions relative to other priorities (without actually banning such prosecutions entirely). He could issue pardons or commutations in some of the more egregious drug cases (ones involving police abuses or extremely long sentences for minor offenses). He could keep President Obama’s broken campaign promise and genuinely end medical marijuana prosecutions in states where medical marijuana is legal. Many of these measures would carry a political price, which is one reason why Obama hasn’t done any of them. On the other hand, they probably are not large-scale enough to make drugs a major issue in the next presidential election or generate a backlash large enough to undue the good they would do at the margin. These changes are small enough that the majority of rationally ignorant voters wouldn’t even notice them, thereby reducing the likelihood of a major backlash.
The bottom line: A good, wise, and politically fearless president could do a lot more good than many suppose. But even the best and bravest leader would still have to make substantial concessions to political reality, lest all his good works be undone.
In 2009, the Obama Administration announced a new federal policy regarding marijuana in states in which medical marijuana has been legalized. The policy statement instructed federal prosecutors not to devote federal resources to prosecuting those who use or supply medical marijuana in strict compliance with state law. At the time, Ilya and I praised the new policy, though Ilya was quite skeptical it would make much difference.
Since the policy it was announced, it appears the policy has been difficult to maintain, and prosecutions of medical marijuana distributors has continued, largely because the federal government fears that some marijuana distributors are serving more than the medicinal marijuana market. As the NYT reports, federal prosecutors appear to be escalating efforts to go after marijuana distributors in medical marijuana states.
As some states seek to increase regulation but also further protect and institutionalize medical marijuana, federal prosecutors are suddenly asserting themselves, authorizing raids and sending strongly worded letters that have cast new uncertainty on an issue that has long brimmed with tension between federal and state law. . . .
Letters so far have gone out to governors in Arizona, Colorado, Montana, Rhode Island, Vermont and Washington, prompting some states — including Rhode Island and Montana, in addition to Washington — to revise or back away from plans to make the medical marijuana industry more mainstream.
In Washington, Ms. Gregoire asked for guidance from the state’s two United States attorneys, Mike Ormsby and Jenny Durkan. In a reply to the governor last month, they said the federal government would prosecute “vigorously against individuals and organizations that participate in unlawful manufacturing and distribution activity involving marijuana, even if such activities are permitted under state law.”
The changes have angered supporters of medical marijuana, who say the federal government is sending mixed signals, even as they argue that it has not technically changed its position.
The Justice Department claims there has been no change in policy. Marijuana has remained illegal under federal law, and prosecutors have continued to pursue larger and more conspicuous dispensaries without much regard for state law, prompting increasing conflict with state officials. In the meantime, state level efforts to decriminalize medical marijuana continue apace. There’s now talk of a ballot initiative here in Ohio. So the federal state tension will continue.
Is there a better way? Yes, but it would be difficult to implement without legislation. Here’s what I suggested in 2009:
The Justice Department has to set prosecutorial priorities, as there are more federal crimes on the books than federal prosecutors can ever hope to prosecute. The aim should be to focus federal resources in those areas where there is a distinct federal interest, or where the federal government has a comparative advantage of state and local law enforcement. Where federal law conflicts with state law, prohibiting activities state laws allowed, federal efforts should still focus on those instances of alleged lawbreaking where there is a distinct federal interest, including spillover effects on neighboring jurisdictions.
The federal government has a legitimate interest in controlling interstate drug trafficking, but no particular interest in prosecuting those who seek to provide medical marijuana to local residents pursuant to state law. So it only makes sense for the Justice Department to tell federal prosecutors to focus their efforts on those who are not in compliance with state law, such as those who use medical marijuana distribution as a cover for other illegal activities, interstate drug trafficking in particular. California should be free to set its own marijuana policy, but the federal government retains an interest in preventing California’s choice from adversely affecting neighboring states.
Ideally, the federal government would treat marijuana like alcohol, retaining a federal role in controlling illegal interstate trafficking but leaving each state entirely free to set its own marijuana policy, whether it be prohibition, decriminalization, or somewhere in between.
A British panel composed of leading members of Parliament and former public officials has concluded that the War on Drugs is a failure and should be abandoned. The panel includes former heads of MI5 (the British domestic intelligence agency) and the Crown Prosecution Service, as well as leading Conservatives, including prominent former members of Margaret Thatcher’s government. Here’s a report by the conservative-leaning Daily Telegraph:
The “war on drugs” has failed and should be abandoned in favour of evidence-based policies that treat addiction as a health problem, according to prominent public figures including former heads of MI5 and the Crown Prosecution Service.
Leading peers – including prominent Tories – say that despite governments worldwide drawing up tough laws against dealers and users over the past 50 years, illegal drugs have become more accessible.
Vast amounts of money have been wasted on unsuccessful crackdowns, while criminals have made fortunes importing drugs into this country.
The increasing use of the most harmful drugs such as heroin has also led to “enormous health problems”, according to the group….
It could lead to calls for the British government to decriminalise drugs, or at least for the police and Crown Prosecution Service not to jail people for possession of small amounts of banned substances.
Their intervention could receive a sympathetic audience in Whitehall, where ministers and civil servants are trying to cut the numbers and cost of the prison population….
The chairman of the new group, Baroness Meacher…. told The Daily Telegraph: “Criminalising drug users has been an expensive catastrophe for individuals and communities….”
Lord Lawson, who was Chancellor of the Exchequer between 1983 and 1989 [under Margaret Thatcher], said: “I have no doubt that the present policy is a disaster….”
In the United States, the opposition of political conservatives is still perhaps the most important obstacle to efforts to cut back on the War on Drugs. Hopefully, this reconsideration by some of their British counterparts will lead more American conservatives follow the example of William F. Buckley and Pat Robertson, both of whom gradually came to realize that the War on Drugs causes enormous harm, and is bad for family values.
I rarely have anything good to say about Pat Robertson. But the devil-monger deserves his due: I have to commend his call for the legalization of marijuana. Moreover, he cites several good reasons for this stance, including the high cost of prohibition, and the fact that imprisonment of small-time drug dealers and users is “ruining young people.” I suspect that Robertson has begun to realize that the War on Drugs is bad for family values. It will take a lot of good works to make up for all the ridiculous and offensive things that Robertson has said over the years. But helping to end the War on Drugs would be a good start.
As the recent defeat of California’s Proposition 19 shows, the opposition of social conservatives is one of the biggest political obstacles to curtailing drug prohibition. Hopefully, more conservatives will come to the same realization as Robertson and, before him, the far more intellectually respectable William F. Buckley.
Pete Guither has a helpful roundup of reactions to the defeat of Proposition 19, which would have legalized marijuana under California state law. Opinion seems to be divided between those like myself and Kevin Drum who believe that support for legalization is rising and those who claim that the cause is probably hopeless because of opposition by parents and the elderly (e.g. Tyler Cowen and Megan McArdle).
I continue to be optimistic about public opinion trends. Gallup poll data shows that support for marijuana legalization has slowly but consistently risen from 12% in 1970 to 46% today. This is exactly the percentage of the vote that Prop 19 got, despite the fact that the elderly (who tend to oppose legalization by large margins) were vastly overrepresented in the 2010 California electorate. This longterm trend strongly supports my theory that disproportionate opposition to Prop 19 among the elderly is a generation effect (caused by ideological differences between younger and older generations) rather than a cohort effect (caused by people becoming more anti-legalization as they get older).
Megan McArdle and Tyler Cowen emphasize the role of parents in opposing marijuana legalization. It is indeed true that parents are more likely to be against legalization than others. But as Bryan Caplan points out, the impact of parenthood is minor compared to that of other factors such as ideology, gender, and religion. Moreover, parents, like other groups, have become less opposed to legalization over time. Today’s parents are more likely to oppose legalization than today’s childless adults. But they are still more supportive than the parents of 10, 20, or 30 years ago.
On balance, therefore, I think the trend towards greater support for marijuana legalization will continue, which cuts against Tyler’s theory that Prop 19 was the “high-water mark” for the legalization cause.
That doesn’t automatically mean that legalization will actually happen. Public opinion is not the only determinant of policy. Interest group influence matters too, and there are some powerful ones opposed to legalization (including the prison industry, various law enforcement agencies, and others). It is also possible that unexpected events will reverse the current trend. Although I don’t consider it to be likely, the next generation could turn out to be more socially conservative than today’s young people. It’s also possible that the trend towards support for legalization will be undercut by some dramatic negative event, such as the death of a prominent celebrity from a marijuana overdose. It would be irrational for voters to change their minds about legalization because of such an incident. But ignorance and irrationality are major factors in public opinion.
Despite these caveats, the data suggest that legalization advocates have more reason for optimism than their opponents. The long-term trends seem to be in their favor.
UPDATE: I previously failed to provide a link to the Gallup polling data on historical trends in public support for marijuana legalization. I have now corrected that mistake.
To me, the most disappointing of the many electoral results this Tuesday was the relatively narrow (54-46) defeat of California Proposition 19, the marijuana legalization initiative that I and and many other VCers endorsed. I’m not disappointed because this proves that law professors have little electoral clout. We knew that already. Rather, the disappointment is because Prop 19 was the best opportunity in many years to deal a serious blow to the War on Drugs. Early polls showed that it had a decent chance to win.
At the same time, it is notable that such a broad legalization measure could get 46% of the vote in the nation’s largest state despite the near-uniform opposition of the political establishment in both parties, ranging from President Obama to Governor Schwarzenegger and many others. Such a result would have been almost unthinkable a decade ago.
The CNN exit polls on Proposition 19 contain lots of interesting data. They reveal that the initiative lost in large part because of its weakness among two groups: the elderly and self-identified “conservatives.”
I. The Age Gap.
People over the age of 65 voted against Prop 19 by a 68-32 margin. Had the electorate been limited to people under the age of 50, Proposition 19 would probably have won, albeit narrowly (by about 51-49). But people over the age of 50 formed a whopping 54% of the California electorate, which reflects the much greater of propensity of the elderly to vote and participate in politics. Using the data collected here, I calculated that people age 50 and above are actually only about 37.5% of the voting-age population in the state.
The interesting question about the age gap on this issue is whether it is a cohort effect or a generational effect. In other words, do people start out favoring legalization in their twenties, but turn against it as they age (a cohort effect)? Or are more recent generations generally more favorable to drug legalization, a difference that persists as they age (a generational effect)? My tentative conclusion is that its probably more of a generational effect. This is not just a difference between the very young and the rest. Rather, each successive age group is much more pro-legalization than those older than them. Even 50-64 year olds were 12 points more favorable to Prop 19 than the over-65s. Moreover, much social science data suggests that political attitudes tend to be fairly consistent with age, solidifying for most people when they are in their twenties. Winston Churchill notwithstanding, if you were a socialist at twenty, that implies a high probability you will still be one at forty. In addition, an important recent study suggests that the elderly actually become more socially liberal as they age, not less so.
II. The War on Drugs and Conservatism.
Self-identified conservatives were even more opposed to Prop 19 than the elderly, with 73% voting against. Unlike the generation gap, legalization advocates cannot expect this problem to get better on its own. I don’t expect conservatives to quickly change their views on this issue. Adherents all political ideologies are slow to change longstanding beliefs, and tend to dismiss opposing evidence out of hand, while overvaluing any evidence that supports their preexisting views.
But I hope conservatives will at least consider the following points. First, the case against the War on Drugs and other “morals” regulations is very similar to the standard conservative critique of economic regulation, a point I made in greater detail in this article and here. Indeed, the War on Drugs is one of our biggest examples of economic regulation, since it bans the sale of a product and creates a vast illegal market that stimulates violence and organized crime. It is in fact quite similar to left-wing proposals to ban products such as cigarettes or fatty foods, both of which pose greater health risks than many currently illegal drugs do. Ironically, Proposition 19 was opposed by 67% of those voters who said in the same survey that government is currently doing “too much,” probably because of the large overlap between this group and ideological conservatives.
Second, the War on Drugs severely hampers two cherished conservative goals: winning the War on Terror and promoting family values. Even if you think that drug prohibition is on balance a worthy objective, is it really worth the price of greatly exacerbating the terrorist threat and undercutting the ability of poor African-Americans to form intact families? Few can do so so long as a very high percentage of poor black males are either in prison or cycling in and out of custody, in large part as a result of the War on Drugs.
Every ideology sometimes faces difficult tradeoffs. The War on Drugs poses several particularly important ones for conservatives. Over time, I hope that more conservatives will come to agree with William F. Buckley’s conclusion that “it is outrageous to live in a society whose laws tolerate sending young people to life in prison because they grew, or distributed, a dozen ounces of marijuana.”
My short essay for the Encyclopedia Britannica blog looks at the racist origins of marijuana prohibition. The essay is part of a two-day series of pro/con articles related to California’s proposition 19.
