Return to Part 1 of the Report Return to Part 2, Sections 1-3 of the Report
Section IV. Alternative Policies for the Regulation of Drugs
B. Harm Reduction
C. Decriminalization of Illicit Drugs
2. Does Criminal Enforcement of Drug Laws Benefit or Harm the Users and Potential Users That are Directly Targeted?
3. Does Criminal Law Enforcement of Drug Laws Benefit or Harm Members of the Public at Large?
4. Does Criminal Enforcement of the Drug Laws Benefit or Harm Society in General?
5. Assessment of Decriminalization Arguments
D. Modification of Marijuana Penalties in Other States
E. Medicinal Use of Marijuana
F. Recent Changes in Other States
2. Arizona Initiative
3. Massachusetts, California, and Ohio
G. European and Australian Drug Policies
H. Medicalization of Drug Treatment
2. Swiss Heroin Maintenance Program
3. Australias Proposed Pilot Study
I. Gateway Concerns
J. Other Social Policy Alternatives
Section V. Areas of Further Analysis and Possible Recommendations
SECTION IV. ALTERNATIVE POLICIES FOR THE REGULATION OF DRUGS
A. Introduction Top
Discussion of how to develop an appropriate policy for dealing with drug use and distribution is confounded by a lack of consistent and complete data and disagreement about how to use and interpret the data. It is also bedeviled by the opinion of many who believe that any drug use, even drug use that has become an addiction, is a character defect or is an immoral activity threatening society as a whole and deserving criminal sanction.47
Furthermore, assessment of the advantages and disadvantages of various drug policy regimes is daunting.
[P]articipants in drug policy debates are quite selective in highlighting the particular dimensions of harm that serve their rhetorical purposes. For example, in newspaper essays, legalization advocates emphasize drug prohibitions affront to civil liberties and the incentives it creates for black market crime and violence; prohibiters emphasize the risks of addiction and its pernicious effect on families, neighborhoods, and the workplace.48
In addition to the difficulties in identifying what are the harms or consequences of a particular drug policy, data on the magnitude of the consequences is incomplete, unavailable, or difficult to estimate. And then, it is even more difficult to ascribe costs to those harms or consequences. For example, drug-related deaths may increase or decrease under different regulatory regimes and, in particular, the proportion of death may change among users, sellers, or innocent persons.49
In describing the alternatives for developing a drug policy, MacCoun, Reuter, and Schelling suggest a possible spectrum of schemes ranging from: (1) prohibitory regimes, (2) prescription regimes, and (3) regulatory regimes.50 Each of these regimes has some overlap.
They suggest that, except for some libertarians, no one seriously suggests that now-illicit drugs should be as freely available as most other consumer goods (legalized). Illicit drugs would be regulated at least as fully as are prescription drugs and over-the-counter drugs and as are tobacco and alcohol. Both of the latter drugs have extensive restrictions on distribution to or use by adults and are prohibited for youths.
A prohibitory regime is essentially the present-day policy. Heroin, cocaine, and marijuana are prohibited except for certain medical purposes. MacCoun, Reuter, and Schelling classify decriminalization as a "low-severity" type of prohibition - production and distribution would be outlawed, but possession for individual use would be not be sanctioned.
A prescription or maintenance regime allows illicit drugs to be prescribed and administered under the direction of a health professional to relieve symptoms of addiction to the drug. Methadone is currently prescribed to relieve heroin addiction. In addition to relieving the addicts discomfort when he is abstinent from the drug, a prescription regime is intended to reduce an addicts unlawful behavior of acquiring the otherwise illegal addictive drug and of acquiring money to obtain the drug. A prescription regime also is intended to improve the addicts health, job prospects, and other social functioning. A variation would allow self-administration by some patients under supervision.
A regulatory regime would allow some legal use of an otherwise illicit drug. Several variations are possible: A person who could prove that he could use the drug safely would be licensed for that drug or the drug could be available to any adult except those who had forfeited their right to that drug by violating some condition of eligibility for the drug.
B. Harm Reduction Top
Given that a variety of drug regulatory approaches exist, a basis for analyzing the merits of those approaches is needed.
The industrial countries in Europe, as well as Australia, have articulated a policy of harm reduction as central to their strategies for addressing illicit drug use and assessing the benefits of various policies.51 That term, however, has only recently been accepted in the United States as a substantial focus of the drug policy debate.
The concept of harm reduction is inherently vague and evolving. Any policy, whether hard or soft, punitive or tolerant, that a proponent claims to reduce harm, as that proponent defines harm, may seek to fall under its shelter. Indeed, no responsible spokesperson for any drug policy believes that he or she is promoting a policy that is harm enhancing. Harm reduction, then, is a common goal that does not, of itself, answer the debate on the most appropriate drug strategy.
The concept of harm reduction is nonetheless important as an expressed goal of drug strategies because it provides the broadest, most useful test against which the various strategies can be measured. Moreover, although some claim that harm reduction is a code or slogan of proponents of drug legalization, the concept itself is neutral in the debate among those who demand stringent law enforcement, those who demand a liberal right to drug use, and those who suggest a moderated policy between the extremes.52 The concept merely requires that a proponent of a particular drug policy justify that policy in terms that are meaningful to the society -- that is, by demonstrating how the policy maximizes social benefits.
Harm reduction advocates might claim that, while abstinence is a valid method of reducing harm from drug use, abstinence has not been possible for a great number of drug users. Given that reality, some advocates assert that other methods are available and should be pursued to reduce some of the harms of drug use. Thus, harm reduction may seek law enforcement collaboration with public health authorities and drug users to reduce the harms from drug use.53 In each case, however, the benefit of the proposed policy is measured by the harm avoided.
Analytically, harm reduction is a loose corollary to the utilitarian principle of "the greatest good for the greatest number." The premise is that the goal of social policies is to benefit the health and welfare of society. In the context of illicit drugs whose impact is conceded to be primarily harmful, it reasonably follows that the social drug policy should be designed to reduce the overall harm to society stemming from the drug, drug use, and the primary and secondary effects of drug use, both to the user, third persons, and society as a whole. Once minimization of harm is understood as a primary goal of social policy, the effects of particular policies can be judged against that standard. The concept of harm reduction moves the debate away from ideological or partisan slogans toward a reasoned, scientific analysis of what policies benefit society.
As such, those engaged in the social policy debate must define their terms and values, and balance costs and benefits. In the context of drug policy, the balance includes matters such as dollar costs to the user, to third persons, and to society as well as health and civil liberty concerns that cannot be reduced to dollar values. The process of analyzing a particular strategy in harm reduction terms requires the analyst to recognize and articulate those various costs, to assign relative values, and to articulate assumptions.
Harm reduction, as a tool, has limitations. The fact that all harms, costs, and benefits cannot be quantified means that an analyst ultimately assigns ideologically based values on the unquantifiable costs. Harm analysis does not shift all aspects of the debate from the political to the scientific sector. The harm reduction concept does not avoid the problem that some analysts may place a higher relative value on health concerns (preventing the spread of AIDS or protecting against drug induced fetal withdrawal syndromes) or on civil liberty concerns (preventing state abuse of forfeiture laws) or on preserving moral values (protecting teenagers from the temptation of drug use). What constitutes the best policy under a harm reduction analysis depends in part on how one balances the various harms. Performing that analysis requires that harms be documented, acknowledged, and justified and it requires that the assumptions and values be stated. As such, it provides a sophisticated vehicle for the policy analysis.
In that process, the concept of harm reduction also provides a vehicle for consensus building with respect to certain aspects of the debate and for a more precise analysis of how strategies differ. Particular adverse effects can be analyzed and addressed independently. More specifically, such an analysis may lead to a consensus with respect to certain discrete harm reduction strategies (for example, to reduce the spread of AIDS) without necessarily implicating other fundamental and controversial issues such as those concerning sentencing.
"Harm reduction" has been used as a slogan of some commentators seeking to reform the status quo. That has occurred because current drug policies lead to a number of harmful results, including a substantial cost to the public fisc, the incarceration of large numbers of minority males, the spawning of a violent black market, adverse health effects, and infringement of civil liberty concerns. Many opponents of the status quo argue that those costs, i.e., the harms done by current policies, have never been properly analyzed and justified. Harm reduction provides those critics with a basis for insisting that the costs of the current system be acknowledged and measured against rational criteria.
As noted above, however, harm reduction concepts are not biased. A harm reduction analysis - assuming that current policy makers could be correct that criminal law enforcement suppresses a large amount of harmful drug use - might ultimately support all, or most, of the status quo policies. But it might also support variations or fine tuning of current policies if harmful effects of those policies can be eliminated without undermining the core policies - taking further steps, for example, to reduce needle sharing that contributes to the spread of AIDS, but retaining existing punitive sentencing policies. And alternatively, a rigorous harm reduction analysis, if buttressed by appropriate evidence, might show that the status quo cannot be justified under a rational analysis. If that is so, policy makers, and the public at large, should have the benefit of that analysis.
This report assumes the validity of harm reduction analysis - or harm minimization as the goal is sometimes styled - as a measuring stick. Existing policies and proposed alternatives should be analyzed in terms of their social costs and benefits. Policies with the potential for reducing harm should be identified. It should be recognized, however, that harm reduction concepts are inherently limited by (or absolutely biased in favor of) fundamental social values, such as those expressed in Constitutional requirements of due process and fundamental fairness. A policy of summary public executions of drug dealers may effectively reduce drug use but violates more fundamental social concerns under our system of government.
A harm reduction analysis provides a principled bases for recommended reforms. A number of policies might potentially be implemented to reduce the net harms stemming from illicit drug use with very little risk of promoting further drug use or risking displacement of harms to a different venue. Such policies as increased drug treatment, for example, have been shown to be highly cost effective relative to current incarceration policies.54 Policies that shift drug users away from intravenous drug use and the sharing of contaminated needles -- increased availability of methadone maintenance treatment, for example, and increased availability of sterile needles -- can be implemented to reduce the spread of AIDS not only among the drug using population but among the population at large. If one assumes, for example, that preventing the spread of AIDS deserves priority over prevention of drug use, those policies would, by definition, be harm reducing.55 At the completion of this study, we hope to identify policies that will reduce the overall harm stemming from the existence of illicit drugs.
C. Decriminalization of illicit drugs
1. Introduction Top
The most serious challenge to current drug policies has been brought by commentators who argue, using a harm reduction analysis, that illicit drugs be "legalized" or "decriminalized"56 Since the criminal justice system is currently the first resort of Connecticut drug policy, those critiques have significant potential implications.
This section reviews those arguments and examines whether the criminal justice system has a proper role in the control of illegal drugs. Enforcement of drug laws has played a major role in creating a federal rate of incarceration that is the highest per capita in the world, a rate that impacts disproportionately on minorities. As many as one in three black males between 20 and 29 years of age are under the supervision of the criminal justice system, many for drug-related offenses. That rate of criminal justice supervision is up from one in four in only five years.57 Legalization proponents argue that criminal law enforcement also carries numerous other unacceptable human, economic, and social costs. The legalization concept embraces a wide spectrum of possible alternative policies. As Ethan Nadelmann states it:
"In its broadest sense, . . . legalization incorporates the many arguments and growing sentiment for de-emphasizing our traditional reliance on criminal justice resources to deal with drug abuse and for emphasizing instead drug abuse prevention, treatment, and education, as well as noncriminal restrictions on the availability and use of psychoactive substances and positive inducements to abstain from drug abuse."58
The essence of the legalization/decriminalization argument is that strict criminal enforcement of the prohibition on use of illicit substances does substantially more harm than good and that preferable alternatives exist. Those claims are argued with respect to three classes: the drug users themselves; third parties in contact with or impacted by the drug users; and the society as a whole. The argument is as follows:
(a) Prohibition harms rather than assists those who use the illicit substances. Substance users are subject to arrest and incarceration and thereby denied personal freedoms, including current and future economic prospects. Their criminal status causes many such as pregnant women and HIV individuals to avoid obtaining necessary health care. Their use of black markets to obtain the illegal substances denies them reasonable protection against tainted substances in dangerously potent concentrations. The prohibitions, by forcing drug taking practices underground, also lead to such unhygienic practices as needle sharing, increasing exposure of users to life-threatening diseases such as AIDS and hepatitis. Finally, prohibition, by raising the cost of the drugs, financially burdens drug users, some of whom risk other criminal activity to support their illegal habits. Collectively, it is argued, the harm of these effects exceed any harms that would occur were the person allowed to pursue the drug use.
(b) Prohibition increases crime and other public health risks. Members of the public are exposed to an increase in criminal acts due to the activities of the drug users who steal to support their expensive illicit habits and due to the violent nature of black markets that accompany and are driven by the demand for illicit drugs. Members of the public are also exposed to increased risks caused by the spread of disease by those illicit drug users who share dirty needles. Proponents of legalization argue that those harms exceed any harms that would occur in the absence of prohibitions.
(c) Prohibition creates high economic and social costs. The social structure as a whole is damaged by the high cost of its expenditures on the criminal justice system, and by the potential for corruption of the justice system, the erosion of civil liberties resulting from enforcement needs, the disproportionate impact on minorities of enforcing drug prohibition laws, and the siphoning of funds into the criminal justice system that are needed for social supports. Again, legalization proponents argue that these costs exceed any harms that would result in the absence of drug prohibition.
Moreover, advocates assert that criminal enforcement activities have failed, and, because of inherent limitations of law enforcement, always will fail to stem substance abuse by willing users and to reduce the availability of drugs on the street. They note that current policies allocate an inordinate share of the resources available to the criminal justice system to drug enforcement, making those funds unavailable for enforcement against violent crimes. Moreover, noting the social, cultural, economic, and physiological roots of drug abuse, they suggest that any reasonable criminal law enforcement is doomed to failure because it does not address the causes of the problem.
In the light of these criticisms and the high fiscal and social costs of our system of prohibition, it is important that policy makers, before endorsement of continued reliance on the criminal justice system, ensure that our current policy continues to be justified.
First, a caveat. Analysis is difficult because the dynamics of controlling drug abuse and of assessing costs are extremely complex. "Assessment of costs under a given regime usually requires at least three distinct steps: identifying all the relevant dimensions of consequences; estimating their magnitudes; and then assessing the costs of those consequences. All present major problems."59 There are many different drugs. They work differently, each with its own pattern of abuse, toxicity, and social impact. They are used by different people in different contexts. Substance abuse occurs in constantly changing social environments and the degree of use may be responsive to such cultural phenomenon as ideological movements, youth fads, class and peer expectations, and economic deprivation. Studies are unreliable because drug users who engage in illegal activity potentially compromise themselves if they report accurately on their use. Substance abuse is also a personal phenomenon and the users susceptibility to abuse varies not only with the user but with the users circumstances at the time. An observation in one case may not be accurate across ethnic or economic or generational groups. Thus, generalizations should be viewed with suspicion.
On a statistical level, experts both for and against legalization or other policies cite apparently persuasive statistics for their conflicting views.60 At the same time, controlled experiments are largely not possible. The lessons that can be drawn from the experiences of this and other countries seem to vary with the observer. In the final analysis, a neutral observer must be frustrated both by the difficulty in ascertaining the underlying facts and the difficulty in assigning costs and benefits to those facts as they are determined.61 As one commentator notes, "Implicit in both the status quo and legalization views, as well as the many combinations in between, are cost/benefit calculations in which each side argues that the costs [of alternative policies] outweigh the benefits."62
It is possible, however, to analyze, if not always quantify, certain effects, both negative and positive, of prohibition. The high costs of current policy in financial and human terms are beyond dispute. Whether or not they are offset by the harm prevented, they must be noted in any balanced analysis. Any rational drug policy employing criminal law enforcement must have an awareness of and make an educated attempt to balance the various costs and benefits of criminalizing drug use.
For purposes of this discussion, "illicit substances" and "drugs" refer to marijuana, cocaine, heroin, and the various other prohibited hallucinogens, amphetamines and stimulants. Prescription drugs, alcohol and nicotine, consumption of which is not strictly prohibited, are therefore generally excluded from the analysis. "Legalization" and "decriminalization" are recognized as distinct, imprecise, but related, concepts that could include a variety of policies. "Legalization" generally refers to removing criminal law enforcement altogether from drug policy, but, depending on the proponent, may not preclude various regulatory restrictions, such as prohibiting sales to minors and advertising. "Decriminalization" generally refers to policies that remove penalties, or at least incarceration as a penalty, for use of a drug, but that retain penalties and restrictions on production and sale of substances. Proponents of these two schools may differ strongly, but often share arguments as to the harms caused by the existing prohibitory regime.
2. Does criminal enforcement of drug laws benefit or harm the users and potential users that are directly targeted? Top
Traditional law enforcement punishes and deters antisocial conduct by a wrongdoer against a third party. It assumes that where there is a crime, there is a victim - someone who has been assaulted or deprived of property - whose rights society must vindicate. Due process for the accused person is important because society is concerned that the accused be treated fairly in determining whether he performed the criminal act. Society is less concerned if, after conviction, incarceration burdens the wrongdoer. After conviction, while society remains concerned with rehabilitation, a primary focus is on providing sufficient punishment to deter further crime and on punishing and incapacitating the wrongdoer. Incarceration may be necessary to vindicate the rights of the victim and to protect society. Stated differently, in the traditional case, concern for the convicted wrongdoer may take a back seat to societys other priorities.
The case of a user of illicit substances, however, must be analyzed differently. In many of those cases, there is no direct third-party victim of the substance user, no injured person whose rights the police and courts seek to vindicate. The main reason for prohibiting illicit substances is to deter the potential user from harming himself and to lessen the harm that actual users suffer from substance abuse. We do not want John Belushi or Len Bias self-destroying on a dangerous substance. We do not want our child experimenting with a toxic substance. The law is protecting users, and potential users, from themselves. It is particularly relevant with respect to drug laws, therefore, to consider whether the criminal justice system protects drug users, drug abusers, and potential users and abusers, from more harm than it inflicts.
If total harm exceeds total benefit to the user and potential user, some other justification, such as prevention of harm to others or to society as a whole, is necessary to rationalize current criminal enforcement policies. This is not a new question. The Dutch, for example, who claim to have taken a pragmatic approach to the drug problem, assert as a primary principle that "efforts must be made to ensure that drug users are not caused more harm by criminal proceedings than by use of the drug itself."63 While the answer to this cost/benefit question is uncertain, critics raise legitimate concerns about the levels of harm being inflicted on users by the current system. Further review as to whether specific policies can address and appropriately lessen those harms is therefore in order.
Current law enforcement practices impose substantial costs on users. In a society founded in part on the acknowledged right "to life, liberty, and the pursuit of happiness," a high value is assigned to our personal liberty. The taking of personal liberty invokes our strongest constitutional protections. Yet users of illicit substances, collectively, annually serve many thousands of years of jail time. As the result of arrests and convictions, incarcerated drug users suffer economic losses in employment, employment opportunities, education, and the freedom to pursue the pleasures of life free from government intervention. One result of our high rate of drug convictions is that the United States has the worlds highest rate of per capita incarceration.64 Moreover, we incarcerate a high percentage of young minority adults in a time period that is critical to their development as economically viable workers. Assigning a particular number or value to the cost of that incarceration, of course, requires a number of value judgments. One must estimate not only the cost in lost economic opportunity (what economic viability would these drug users have had if they had not been incarcerated, and to what extent does incarceration itself reduce economic opportunities in the future?), but also the cost in loss of personal freedom itself (what would one pay, assuming adequate resources, not to go to prison?). But by any standard, the cost of criminal law enforcement to the persons incarcerated is enormous in terms of lost liberty and lost economic opportunity. "The suffering of those who undergo punishment, and that of their families and friends, must be counted as a cost of enforcement, which must be weighed against its benefits in deciding how much of it to undertake." 65
The criminal laws against drug use also impose a health cost on users. Because users can obtain drugs only in an illegal market, they do not have access to substances of known quality and potency. In the absence of prohibition, our society demands that foods and drugs meet rigorous standards of quality control precisely to protect the health of consumers. Drug prohibition, however, takes illicit substances out of that protective process and subjects illicit substance users to the dangers of tainted drugs and of drugs of unknown strength. As a result, users periodically fall victim to adulterated substances. Stephen Duke and Albert Gross note:
Pure heroin almost never reaches the street. It is cut a minimum of five times before reaching the customer, by a wide variety of chemicals. Common adulterants include quinine, lactose, sucrose, mannite, procaine and baking soda. Most of these diluents are relatively harmless to most people, but allergic reactions are still possible.
Quinine is different. It is a common adulterant because it tastes like heroin and makes it impossible for the user to determine the purity of the product by tasting it. Quinine also causes vasodilation which mimics the vascular effects of heroin sufficiently to confound users into believing they have a high-quality product. Unfortunately, quinine can also cause cardiac arrest when injected into a susceptible subject. This accounts for many heroin overdoses.66
In other words, one effect of laws designed to protect users from the health risks of drugs may actually be to expose users to greater risks. Some of the overdose deaths that make the news might be prevented under a different regulatory regime. There are other health risks. Where needles are unavailable, intravenous drug abusers are more likely to practice needle-sharing. Use of contaminated needles subjects intravenous drug users to the risk of contracting and spreading needle-born diseases such as HIV and hepatitis. While Connecticut has liberalized access to needles, they are still not freely available, and needle-sharing is more likely with respect to illicit activity. Some addicts in Connecticut do not carry their own syringes, increasing the risk that they will share needles already used by other injecting drug users. These addicts fear carrying sterile needles themselves because of police harassment under paraphernalia prohibition provisions.67 Drug abusers may also become so marginalized that they avoid any medical care at all. A drug abuser may fear that seeking medical assistance will expose, or risk exposing, his illegal practices to authorities, with such potential consequences as incarceration, loss of custody of children, humiliation, and social stigma. A pregnant drug user who fails to seek prenatal care increases the already high risk of fetal harm and of a complicated or unsuccessful delivery.68
By raising the costs of illicit substances far above the cost of production, the drug laws also impose an increased financial burden on users. The need for money to support a drug habit may lead users to theft, prostitution, or other crime. Money spent on drugs is not available to support dependents and meet other obligations.
Offsetting those harms, commentators who support criminal enforcement of drug laws cite two primary benefits to users: (1) that the criminal penalties may be used to force users to seek treatment to terminate or reduce use - thus potentially restoring those persons to a substance-free life,69 and (2) that the deterrent benefits of prohibition prevent a sufficient number of potential users from entering a life of substance abuse to justify otherwise acknowledged costs. We cannot quantify these benefits, however, and the amount of benefit varies with each illicit substance. How harmful, in fact, is use of the particular substance that is being deterred? How helpful is enforced treatment? Commentators disagree over the extent to which the criminal law acts as a deterrent, the value of that deterrent in the light of the respective harms caused by substance use and by enforcement, and the extent to which treatment is useful and cost effective in reducing use or limiting total harm.
The degree to which illicit drug use harms the user is itself a matter of controversy.70 A substantial portion of drug use occurs only in subcultures that tolerate its use. Elliot Currie notes the strong social and culture component of American inner-city drug use, which he traces, in large part, to the loss of opportunity within an alienated and disenfranchised minority population.
One difficult aspect of the problem is that, if a person has already been marginalized by society - that is denied access to economic opportunities because of lack of education or discrimination, that persons use of drugs to reduce misery may be a more or less rational act. 71 In any case, each user has decided that his or her use of the particular drug is sufficiently "beneficial" to justify the economic cost, the risk of criminal law enforcement, and the risk of detrimental health or addictive effects. It is because we do not trust that users judgment, and because in numerous cases the judgment, from a rational perspective, is faulty, that the various illicit substances are prohibited. Nonetheless, many persons use illicit substances for recreational pleasure without addiction or substantial personal harm. Many users terminate their use of illicit substances on their own initiative as they become aware of the risks or as promised pleasures prove illusory.72 One commentator suggests that most illicit drugs are substantially less addictive than cigarettes (which are very addictive).73 And much of the harm caused by the drugs, when identified, can be traced to adulteration, high economic costs, and unhealthy practices that result from its illegality. For marijuana in particular, the evidence of long-term detrimental health effects, at least as to effects that might justify incarceration to protect the user from harming himself, is weak. For heroin, a significant number of users apparently remain unaddicted and continue to lead normal lifestyles. For many of these users, the costs caused by drug use in lost opportunities due to intoxication and in direct health costs, both short and long term, appear to be significantly less than the cost of incarceration.
Most commentators agree, however, that a significant number of drug users abuse some of these substances with both self-destructive and socially destructive effects.74 Whether one ultimately becomes a drug abuser depends on a complex interrelationship of individual makeup, genetics, social, and economic factors. However, some heroin users do develop addictions that must be satisfied and that, uncontrolled, lead to self-destructive, antisocial acts including crime to support their habits. Cocaine users exhibit a similar mixture of part-time users who maintain controlled use and of a significant minority of out-of-control users who degenerate into antisocial activities.
Again, commentators substantially disagree over how pernicious the particular drugs are. Duke and Gross, in Americas Longest War, argue that the health effects of even the most dangerous drugs have been exaggerated and that overdose deaths and other health problems often reflect use of a drug that is tainted as a result of its being illegal. With respect to heroin, they cite Americas experience with Vietnam veterans, many of whom became addicted in Vietnam but terminated use on returning to the States. Duke and Gross comment that "The adverse effects on the users health are either quite indirect or are attributable to prohibition."75 Goldstein, by contrast, analyzes the various drugs as "chemical attacks" on the brain, all of which result in potentially damaging physiological reactions. Notes Goldstein in Addiction, "The more we learn about addictive drugs and brain chemistry, the more clear it becomes that the brain is far too delicate to tamper with, too complex an organ to risk damaging its intricate regulatory controls."76
Enforcement of laws against illicit drug use leads to the arrest and incarceration of many - although a significant minority - of these drug users. Where the current drug use is under reasonable control - where, for example, the drug user retains a "normal" job and family life, and the use has not led to self-destructive or antisocial acts - the incarceration depriving the user of his personal liberty and destroying his economic viability is largely exacting harm. With respect to marijuana use, which does not have the same health dangers as "harder" substances, incarceration almost always inflicts more harm on the user than potential benefit. That analysis, together with the high costs of enforcement and incarceration, led to decriminalization movements for possession by adults in some states.77
Incarceration, then, only potentially benefits those drug users who are already in, or who are on a path to, a self-destructive cycle of drug abuse. How much current law enforcement benefits these abusers is difficult to measure. Commentators suggest that many, if not most, incarcerated addicts do not receive adequate treatment for their addiction. Many abusers, often continuing to use drugs while incarcerated, are released, still addicted and without economic prospects, back in the same culture that led to the self-destruct addiction in the first place.78 In Connecticut, for example, it has been suggested that 80% of the inmate population abuses alcohol or drugs, but that the Department of Corrections provides substance abuse treatment to less than 20% who need it.79 While methadone maintenance treatment appears to work successfully for some heroin addiction, no treatment is universally successful. Treatment for such drugs as cocaine, that requires behavior modification, is particularly challenging.
In any case, the criminal enforcement system is not primarily used as a gateway to successful treatment. Incarceration is imposed regardless of whether the user is addicted or in need of treatment. No system-wide effort is being made to use criminal justice primarily on behalf of medical treatment, rather than as a punitive system of incarceration and incapacitation. Thus, even with respect to self-destructive drug users, it is not clear that criminal law enforcement generally confers a benefit. On the other hand, anecdotally, incarceration leading to successful treatment does help some users.
In short, law enforcement may inflict more harm than benefit on drug users. Moreover, the harm that is inflicted on those abusers by high levels of incarceration and punishment is an undesirable cost inflicted on persons that ideally we want to help. The imposition of that harm weighs against the current emphasis on use of the criminal justice system. That perspective underlies the rationale of the European countries that approach drug abuse from a social and medical perspective and that limit reliance on criminal enforcement. Even if current criminal law enforcement is necessary to deter drug use by nonusers, or for other reasons, it is appropriate to reduce the harm actually inflicted on users where that harm is unnecessary to the effectiveness of the drug reduction policy. Such a view argues for compassion and understanding toward the drug users, for more treatment, for a review of alternative policies, for modified sentences or none at all, and for efforts to lessen the harm inflicted by incarceration on that persons economic viability and social condition.
Supporters of criminal law enforcement, however, claim that criminal law enforcement deters sufficient potential users from becoming actual users to justify its costs. If sufficient potential users are deterred, that deterrent effect, itself, may justify drug prohibitions if the health costs, loss of economic viability, and loss of personal autonomy that would otherwise result from drug use is high. That is, the harm from drug use that the potential users avoid because of the deterrent may be greater than the harm that the law enforcement itself inflicts on actual users and may justify its monetary costs. A number of factors bear on the strength of this argument and make analysis of the benefit of deterring potential users difficult to evaluate.
We do not know how much deterrent effect the criminal law has. Intuitively, prohibition should work. Criminal law enforcement against illicit drugs creates a black market which substantially raises the cost of the illicit drug over its production cost. This increased cost, the fact of illegality, the reduced availability, and the risk of incurring criminal sanctions should discourage people from using drugs. Assuming a cost of drug use, each such discouraged potential user represents a benefit derived from prohibition.
It is, however, impossible to quantify how much net benefit occurs. Making the use of a substance criminal can also be counterproductive. The high profit margins within the black market that result when a substance is sold at several times its production cost create large profits for persons supplying the drugs. That profit itself creates a strong illicit industry with an incentive to market its product, expand its use, and recruit new users. Those large profit margins also create an economic incentive that attracts youths to deal in that market when they might otherwise participate in the legitimate economy. Among populations feeling disenfranchised, the illegality of a substance can also lend use of the substance an anti-authority symbolic value, such as smoking marijuana developed among counterculture antiwar demonstrators during the 1960s. Elliot Currie argues that for disenfranchised minority youth, one of the attractions of illicit drug use is the excitement of the chase and the sense of beating the system. Writes Currie,
Drug use is one response to a growing sense of exclusion from the kind of life others have - and one way of repudiating the constricted and often demeaning lives that increasingly face the young and poor. In the absence of more constructive ways of challenging those conditions, drugs and the drug culture offer an alternative set of values, different ways of testing ones worth, new means of achieving a sense of identity and social prestige. As in the 1950s and 1960s, the resulting culture is an oppositional one, in which toughness, risk-taking, outsmarting authorities, and having no visible licit source of income become cardinal virtues. In that upside-down world, the potential harmfulness of hard drugs becomes the main reason for their appeal; the threat of legal sanctions becomes an opportunity to demonstrate a kind of courage that has few legitimate channels of expression.80
In a given context, then, the creation of an industry to market a drug, combined with the attraction of a forbidden fruit and an economic opportunity for an economically deprived class, may induce more drug use than might otherwise occur, or than might occur under certain legalization scenarios.81
Moreover, the deterrent argument assumes that a significant number of persons are not currently using drugs because they are illegal or expensive. It may be, however, that the current non-drug using population does not use drugs primarily because of the now better-understood health risks and because of social stigma rather than because of illegality. Given the strong social disapproval of illicit drug use by mainstream society, drug use might not significantly rise were criminal enforcement suspended. In at least two cases where marijuana use was decriminalized, little evidence was apparent of adverse effects or increased use.82
In summary, in the harm/benefit analysis of criminal law enforcement with respect to actual and potential users, criminal law enforcement can be justified primarily by reference to the unknown and unquantifiable benefits that accrue from the deterrence of use by potential users. Whether those benefits are sufficient to justify current law enforcement policies requires an assessment of the extent to which those benefits are real. Recognizing that current enforcement policies also inflict a level of harm on persons such as drug abusers that society wishes to protect from themselves, we ought also to examine whether alternative policies might retain the existing benefits of deterrents without inflicting the existing levels of harm. Moreover, this analysis of the harms and benefits must be considered in the broader context of the effect of drug enforcement policies on third persons and on the society generally. Those issues are reviewed under the next two headings.
3. Does criminal law enforcement of drug laws benefit or harm members of the public at large? Top
While we are uncertain about the effect of criminal law enforcement against users and potential users, the imposition of criminal laws might be justified if those laws protect third parties from the antisocial acts of the users. Prohibition on drug use might be justified, for example, to prevent accidents caused by driving by a drug-intoxicated person or to prevent the spousal or child abuse resulting from drug intoxication.
Again, however, as was the case with respect to the effect of drug laws on users, there is little reliable evidence of the effect of drug laws on third persons. The evidence that is available is construed differently by the interested parties. Different drugs also differ in their effects.
Nonetheless, some evidence that is available - primarily gathered under our current regime prohibiting drug use - indicates that much of the current cost to the public from illicit substance use results from the high costs of drugs created by the prohibition itself. Some of the dynamics are quite simple. An abusing drug user who is addicted to the drug may, over the course of the addiction, spend all of his money getting the drug. When his resources are exhausted, the addict seeks public assistance or engages in illegal activities to obtain the needed funds. Moreover, since, as a drug user, the person is already engaged in criminal acts such as illegal possession of drugs and drug paraphernalia, the inhibitions that the criminal law might otherwise impose to prevent other criminal acts are lessened. Typically, then, a significant number of abusing addicts engage in larceny, burglary, the selling of drugs, or prostitution to obtain the money required by the high cost of their drug. The result is a significant rise in criminal acts to obtain property, sometimes accompanied by violence against the property owners. At least some of those acts would not be committed if the addict had access to the illicit substances at a price commensurate with their production costs.83
The dynamics of the black markets also lead to criminal acts. Drug dealers and buyers do not have recourse to the legal system to settle contract and other drug trade disputes. Insurance is not available to cover business losses. It follows that many disputes - over turf, over quality of a sale, over payments not made - are settled violently, sometimes with gun fire.
Thus, some critics argue that the drug market should be legalized, not because we like drugs, but because a legalized market (such as those for tobacco, prescription drugs and alcohol) is much more effectively policed, regulated, and controlled than is the currently unregulated black market. Instead of being operated by conservative, responsible business people under government supervision, American drug markets, by intentional default, are run in secret by marginal, criminal members of society.84
Currently, the violence of those disputes is substantially exacerbated because the black market is sufficiently lucrative to fund an inner city weapons race.85 That violence, of course, is destructive not only of the lives of the participants - homicide is a leading cause of death among young minority men - but is tremendously destructive to the lives and property of innocent third parties. It may be, as argued by Duke and Gross, that these dynamics are, at least in part, responsible for much of the inner city decline experienced in American cities.86
Finally, public policy that makes drug use illegal has had the corollary effect of denying their use for legitimate medical purposes. Even some of the current illegal use is arguably justifiable self-medication to treat depression or a physiological condition of dependence. Certain illicit drugs might, in some cases, be more effective than existing medications in the treatment of pain, particularly for terminal patients. Illicit drugs such as cocaine and some opiates have allowable medicinal uses (pain relief by morphine, for example). Use of those drugs to relieve symptoms of a persons addictions to illicit drugs is, however, not permitted in the United States. Proponents of marijuana use argue that it is useful in chemotherapy, in treating wasting disease in AIDS, in treatment of glaucoma, and in other applications such as reduction of muscle spasms.87 (Of course, such a cost could theoretically, at least, be addressed separately without reference to drug policy in general.)
By contrast, the costs to third parties that result directly from illegal drug use - and hence the benefits that accrue to third parties from its suppression - are difficult to quantify. Those costs are, however, undoubtedly real and some commentators argue that the primary cost from drug use would mount significantly were drug use undeterred. Moreover, some of the cost inflicted on third persons by drug use is through injury to children, who are neglected by drug using parents, and in harm to fetuses from drug use during pregnancy. Both those contexts elicit high social concern and costs.
The costs vary significantly depending on the particular drug. Marijuana, for example, does not generally induce aggression or direct antisocial acts. There is no evidence and little reason to believe that marijuana use leads to an increase in assaults or thefts. However, even marijuana is mood altering in ways that, at least speculatively, may lead to costs. A stoned parent may be more neglectful, or less likely to pay child support, or may be a less safe driver. Nonetheless, the particular costs of marijuana use imposed on third persons appear to be of a lower order than the costs of enforcement or that flow from enforcement. Commentators pinpoint marijuana use by adults as the best candidate for less stringent enforcement or decriminalization.
Other drugs, such as heroin and cocaine, are less benign. Cocaine, in particular, as a stimulant, may induce aggressive, antisocial behavior not unlike that induced by alcohol. Heroin and cocaine are also associated with fetal withdrawal syndromes, the full health ramifications of which are not yet known.88 Persons addicted to heroin, or who binge on cocaine, may fail to serve as reliable employees or responsible family members. Each such antisocial act that results from illicit drug abuse imposes a cost on third persons. To the extent that such illicit drug use is suppressed by criminal law enforcement, those costs are avoided and criminal law enforcement produces a benefit. Unfortunately, quantifying that benefit, as was the case in quantifying the benefit of suppression to potential users, is impossible precisely because we do not know the extent to which criminal law enforcement reduces illicit drug use. By contrast, the costs imposed on third persons that result from making drug use illegal -- increased property crimes by addicts paying for their habits, black market turf wars, and the spread of AIDS -- are relatively visible. Moreover, as argued by Duke, Gross, and Currie, some of those costs may be better addressed by social programs, health care, and treatment for the users. These programs are incompatible with stringent criminal enforcement.
For example, we are concerned with the fetal harm that may result when a mother uses drugs (or alcohol) during any stage of pregnancy. Criminal law enforcement may deter some cases by preventing potential mothers from indulging in illegal drug use. On the other hand, making the drug use illegal and, as is now the case in some jurisdictions including Connecticut, threatening the mother with arrest or loss of the child also may lead some mothers to avoid necessary prenatal care, care that might provide critical counseling and treatment that could ameliorate the danger of fetal harm. Without empirical evidence that quantifies the results for various strategies, we lack the information needed to be comfortable that pursuing criminal enforcement is the most rational policy.
4. Does criminal enforcement of the drug laws benefit or harm society in general? Top
Aside from the impact of criminal law enforcement of drug laws with respect to users, potential users, and third persons, current enforcement policies have a number of other negative effects that must be balanced against any beneficial deterrent and treatment gain.
The most visible, quantifiable effect of criminal law enforcement of drug laws on the society generally is its tremendous cost. Prison populations, costing states from $20,000 to $30,000 annually per inmate (not accounting for any lost tax revenues due to the inmates unemployment), are at a historic high. Enforcement of drug laws requires time and money for court facilities, court personnel, judges, prosecutors, public defenders, probation officers, sheriffs, court reporters, law enforcement officers, and law enforcement facilities and equipment. Those costs are a direct charge against government revenues and preclude the expenditure of those funds toward other social needs. At the law enforcement level, spending funds on drug suppression uses money that could be used to enforce laws prohibiting crimes against persons and property. Moreover, these costs are incurred not only locally, but also nationally and internationally in interdiction, crop suppression, and the suppression of money laundering. Criminal suppression of illicit drug use has, in fact, created two industries that depend on its continuation - the illicit industry supplying the substances in demand and the criminal enforcement industry developed to suppress the illicit industry. One practical "problem" with legalization is the substantial economic dislocation it would cause here and in the third world.89
As civil libertarians note, criminal suppression of drug use has another disturbing cost. Illicit drug use is voluntary in the sense that the user wants and intends to satisfy his desire - or in the case of an addict - his need for the drug. Unlike other criminal activities, the "criminal" using drugs is often the only person directly victimized and that person wants to engage in the activity. Again, in the case of transportation and distribution of drugs, the persons who are parties to the transaction want the activity to go forward without government interference.
Prosecutors and law enforcement officers, on the other hand, are charged with suppressing this activity without a victim or natural informer to identify the wrongdoer. Often, the only way that they can obtain information and suppress the crime is by making themselves or an informant part of the transaction or by invading the privacy of the acting parties. At the same time that they lack access to information, they are pressured by politicians, the public, and the media for action. Moreover, law enforcement officers work within a judicial system that was designed with an inherent concern about the potential abuse of police power. Our Bill of Rights intentionally limits the power of police officers, prosecutors, and judges. Officers are constrained by warrant requirements, search and seizure limitations, due process requirements and a historic recognition of the individuals rights to privacy. Efforts at criminal law enforcement in this context pressure those in charge to reduce the effect of those limitations on their conduct so that they can obtain results.
Commentators suggest that what suffers is the protection provided individuals by the Bill of Rights and, in some cases, the integrity of law enforcement personnel and the judicial process. Numerous cases cited by commentators note the erosion of basic privacy and due process rights. Property is seized and forfeited by the government without the protections of a criminal trial. Forfeiture may be based not on particular acts but on what a landlord is presumed to have known about his tenants. Prohibitions against "money laundering" sanction transfers of assets that have no necessary connection to drug trafficking or any other illegal activity. Some law enforcement officers are caught perjuring themselves to bypass what they know are constitutional limitations. Other officers and officials are corrupted by protection money paid by dealers and distributors. New exceptions are added to what were once believed to be clear limits on government enforcement authority. In essence, some commentators argue that the end is used to justify the means - that a portion of the enforcement establishment act as if constitutional protections were not intended to protect persons that they have deemed guilty. For those who feel that an essence of the American dream is the protection of the individual against abusive or arbitrary use of government power, this cost is a major concern.90
Judge Torruella observes that,
[P]rohibitions enforcement has had a devastating impact on the rights of the individual citizen. The control costs are seriously threatening the preservation of values that are central to our form of government. The war on drugs has contributed to the distortion of the Fourth Amendment wholly inconsistent with its basis purposes. Particularly in the areas of search and seizure, we have seen major changes in the law brought about by Congress and the courts zeal to support the enforcement of drug prohibition. I will not make a full laundry list, but courts have allowed the issue of search warrants in drug cases based on anonymous tips, have put in jeopardy the attorney-client relationship through the forfeiture of fees, and have permitted the use of the grand jury to inquire into the attorney-client relationship. Some of the most egregious actions committed by the government have been in the area of forfeitures in which courts have allowed abuses which seriously undermine principles of legality and due process. (Citations omitted.)91
Another social cost of criminal law enforcement is the disproportionate impact that it has had on minorities. Even though whites account for 75% of illicit drug use,92 criminal law enforcement has resulted in the incarceration of an extraordinarily high percentage of young black males. Incarceration has a devastating effect on the future economic potential of convicted persons. Thus, the costs imposed by criminal law enforcement fall heavily on young blacks. This has not gone unnoticed within that black community, members of which view it as evidence of racism and of their disenfranchisement by our society. How do we estimate the social cost of rendering a segment of society economically feeble and socially alienated? Elliot Curries primary theme is that the economic and social deprivations imposed on minority culture provide the roots for, the breeding ground for, drug abuse. In his view, only by addressing the more fundamental social roots of the problem can we hope to get a handle on the closely intertwined abuses of illicit substances. It should, however, be noted that the minority community itself is not in full agreement as to the best way to attack the drug problem. Some subscribe to increasing, rather than decreasing, enforcement.93 Others want funds for schools, parks, community centers, and jobs.
Finally, serious concerns have been raised as to the fairness of the way in which criminal law enforcement sentences are imposed under mandatory guidelines. Speaking with respect to federal law, Judge Torruella notes the problem as follows:
As a Judge, I am also struck by how much of the penalties for drug trafficking are imposed on others than those most culpable. For example, the importation and selling of drugs is controlled by one set of people, but it is implemented by quite another -- the so-called mules, often poor people, conscripted to smuggle or sell drugs by powerful organizations. Depending on the preferences of the prosecutors, they are charged, tried, and convicted in what may be a futile attempt to reduce their numbers -- futile if, as I suspect, there is an inexhaustible supply of people willing to take a chance on drug dealing in order to make a little money. Although I would be the last to justify their commission of crimes for profit, the fact is that these people, who have little information to trade to the prosecutors, end up with heavy sentences, while in the scheme of things the big fish, if caught at all, are able to work out deals with the government which may leave them with light sentences or even without any prosecution. This is something that goes beyond mere injustice in the inequality of treatment, it is essentially an immoral outcome which tarnishes our entire judicial system.94
5. Assessment of decriminalization arguments Top
Are the costs of criminal law enforcement, the harms inflicted on users, on the inner-cities, on the judicial system, on the public fisc, balanced by commensurate benefits in the suppression of harmful drug use? The answer requires recourse to a set of facts that are not yet in. To what extent is the suppression successful and what degree of harm does that suppression avoid? How are we to balance the values? What value is assigned to the erosion of civil liberties or to the cost of incarcerating a substantial portion of a generation of black men? What value is assigned to the successful protection of a son or daughter who might otherwise have fallen prey to addiction? What value is assigned to the lives of addicts who currently die using an adulterated substance? What cost when AIDS is transmitted by a dirty needle that might have been exchanged for a clean one? What is the cost of our inability to access these illicit drugs for legitimate painkilling, maintenance treatment for addictions, or other uses?
Ultimately, how much criminal law enforcement is appropriate to achieve all, or a reasonable degree of the deterrent value of law enforcement and what is the value of actually achieving that deterrent in terms of reduced harm? Questions of the deterrent value of criminal law enforcement in drug policy are the most crucial issues over which mainstream commentators are at odds.
Many commentators, even when concerned about the apparent excess harm of current criminal justice policies, appear to favor retaining a criminal component, at least against sellers, if only to deter use by those persons who might otherwise be tempted to experiment but are actually deterred. Elliot Currie, in Reckoning, writes:
If we take [the primary harms resulting from drug abuse] seriously, and I think we must, we cannot avoid being deeply concerned about anything that would significantly increase the availability of hard drugs within the American social context; and no one seriously doubts that legalization would indeed increase availability, and probably lower prices for many drugs. In turn, increased availability - as we know from the experience with alcohol - typically leads to increased consumption, and with it increased social and public-health costs . . . It is difficult to imagine why a similar rise in consumption - and in the associated public-health problems - would not follow the full-scale legalization of cocaine, heroin, methamphetamine, and PCP (not to mention the array of as yet undiscovered "designer" drugs that a legalized corporate drug industry would be certain to develop).95
Mark Kleiman, writing in Against Excess, argues that: "The hardest challenge would seem to be to combine limited suffering with high deterrence." In Kleimans analysis, however, "Some suffering on the part of the person punished is inseparable from the objective of deterrence; no one fears what is pleasant."96 In his view, this leads to a system of very high threatened enforcement with relatively little actual punishment - a sufficiently punitive system so that few people will dare to transgress. "How much punishment it will be necessary to inflict will depend on how long it takes for offenders to understand that the price of committing crimes, in terms of the expected punishment suffered, has gone up, and how much that change in perceived risk influences their behavior."97 However, given that our system already inflicts very high levels of punishment on a large number of people, a recommendation that we do more of the same is at the least disconcerting, if not Draconian.
Chief Judge Juan R. Torruella comments on reducing demand through penalties on users as follows:
As to demand: It is pretty obvious to most observers that users of illegal drugs are de facto and morally the principal cause of our drug dilemma . . . The need to emphasize demand reduction is recognized by many leading experts, although I have yet to see any proposal that takes into account the hard facts of real politics. The only places that I am aware of in which there is real, no-nonsense demand side enforcement against users are Malaysia and Singapore, as well as some Moslem countries. There, the possession of any amount of illegal drugs is a hanging offense. I do not favor such draconian measures, and regardless of my preferences, I do not see the political climate for such demand side enforcement, and for that reason I do not see much possibility for stemming the demand for illegal drugs in the United States by the use of prohibition tactics.98
Avram Goldstein, in Addiction, suggests a somewhat different formulation that nonetheless argues for deterrent value.
Drug policy should aim to reduce the prevalence of drug addiction and the recruitment of new addicts. Every policy has its costs, both monetary and human. Prohibitions cause harm, but this harm has to be weighted against the damage that is caused by the drug being prohibited . . . The general aim is to achieve an optimal degree of harm reduction by means of a reasonable degree of regulation - as little as necessary - for each addictive drug.99
Similarly, Elliot Currie argues for retention of a level of deterrent through law enforcement. Yet, he argues,
... there exists not a shred of empirical evidence that longer sentences deter serious drug offenses any better than shorter and more consistent ones. It is time to acknowledge that the escalation of penalties in the United States has done nothing to improve public safety or to diminish the drug crisis; and time to examine the alternative. Other advanced industrial countries - even those that have adopted what they regard as a tough stance against drugs - generally impose far less severe sentences for drug offenses, and they are none the worse for it.100 Currie, Reckoning at 191.
Duke and Gross, on the other hand, argue that the deterrent, itself, has no value:
Even if heroin, cocaine and marijuana legalization increased substantially the numbers of users of such drugs and even their total drug consumption, the number of abusers of such drugs could still be diminished by legalization. The drugs used would probably be less potent than those now available and therefore less addictive and less damaging. Users of legal drugs also have many advantages over users of illegal drugs that help them to resist frequent, heavy use. They need not be criminals or outcasts to use the drugs. They are less likely to acquire serious or incapacitating illnesses from drug use. They need not steal to buy their drugs; they can work at a regular, legitimate job. Legal-drug use, therefore, is far more compatible with the personal ties, extrinsic resources and general well-being that support efforts to resist drug abuse.101
There is, in fact, no empirical study that can provide us with certain answers as to the value of current law as a deterrent, or of the effects of weaker or stronger enforcement, or of none at all. We do not, in short, know what the relationship is between the severity of criminal sanctions and the beneficial effect of such deterrents. If, for example, merely criminalizing drug use, with light penalties, provided 90% of the deterrent effect, that low level of enforcement might provide a substantial benefit over current policy. Perhaps, as Duke and Gross argue, the act of making use criminal, in and of itself, may impose costs that exceed deterrent benefit. In the current arguments, the dynamics of how prohibition actually works have become a matter of faith. Legalization proponents cite statistics from the Netherlands, or from states that decriminalized marijuana, to support claims that there would be little or no rise in drug use. Prohibitionists cite horror stories like the opium trade in China or the current widespread and sometimes destructive use of unregulated alcohol to show that if drugs are available they will be used.102 While a reasonable assessment as to the danger of increased use from decriminalization is necessary to evaluate decriminalization as a policy, there is no reliable way of making that assessment.
That is not to say, however, that continuation of current stringent levels of enforcement should be endorsed. There is reason to doubt that our current law enforcement system can justify the heavy price that it exacts. European experiences suggest the possibility that equal or better results can be achieved with programs that inflict less harm on the users and better address the social and medical roots of the problem. At the same time, with the current uncertainties, it may not be attractive to embrace decriminalization of drug use when use often results in significant levels of harm not only to users but to others.
As noted by Elliot Currie, the third way, neither stringent law enforcement nor legalization, takes advantage of our best thinking on alternatives: reducing sentences, for example, to keep minor offenders out of penal institutions, better using custody as an opportunity for treatment and rehabilitation, changing policing strategies and treatment strategies, and addressing the underlying economic roots of the problem through job training and social supports. At the least, these alternatives must receive serious consideration.
The social costs, then, of our current criminal enforcement policies are disturbing. To justify them one must posit that the social costs of failing to control drugs, or of controlling them in ways that do not impose those costs, would be even greater - that these costs would be exceeded by the primary and secondary costs of increased drug use were the enforcement policies eliminated. Would drug use, legalized, really lead to a much larger segment of society being incapacitated by drug use? Are there approaches to decriminalization that would lower these heavy social costs without letting the feared Genie of unrestricted drug use out of the bottle? No one knows. We do not know how much more drug use there would be, or the extent to which that use could be, or would be, controlled within reasonable limits by other social forces. We do know, however, that the costs of current policies are high. Moreover, the industrialized countries of Europe, all of which have lesser drug problems, seem to have kept their problems better in check with less stringent criminal law enforcement.103 They may show a way toward more effective policies. Their policies are reviewed in subsection H, below.
D. Modification of Marijuana Penalties in Other States. Top
Some ten states have reduced their penalties (generally to a fine) for possession of small amounts of marijuana. The states include Oregon, Maine, Ohio, New York, Nebraska, California, North Carolina, Colorado, Minnesota, and Mississippi. In Connecticut, the permitted penalty for a first time offense of possession of a small amount of marijuana can be up to one year imprisonment.
Twenty-four states, including Connecticut, have enacted legislation aimed at permitted patients with certain disorders to have access to marijuana under a physicians direction. States such as Maine and Minnesota define the amount covered by their statutes as a "usable amount" or a "small amount" respectively. Other states specify quantities that come within the statute, most often one ounce, 28.5 grams, or 25 grams.
Although the effect of the ten states penalty reduction statutes is sometimes unclear, it appears that five of the ten states now consider possession of small amounts of marijuana to be non-criminal violations. Oregon, Maine, Ohio, New York and Nebraska clearly remove such violations from criminal liability. Two states, California and North Carolina, retain misdemeanor status for possession of lesser quantities of marijuana, but reduce the possible penalties from prior statutes. The three remaining states, Colorado, Minnesota, and Mississippi, have reduced the status of this kind of violation from a misdemeanor to either a "petty offense" (Colorado), a "petty misdemeanor" (Minnesota) or an "offense" (Mississippi). In these states, a fine of not more than two hundred dollars may be imposed (not more than one hundred in Colorado) for a first offense. In Colorado, a first-time offender also might serve fifteen days in the county jail.
Five of these ten states impose increased penalties for subsequent violations. Of the states that increase penalties, all but one require that the subsequent violations take place within a certain period of time (two, three or six years) for the penalty to escalate. Nebraska increases the penalty for the second offense and increases it further for three or more offenses. Nebraska does not specify a period of time within which those offenses must take place for the higher penalty to apply. California increases the "penalty" for subsequent violations only to the extent of requiring that a person who has been convicted of possession three or more times within the immediately preceding two-year period be diverted to education, treatment or rehabilitation. If a person is so diverted, he is not subject to the fine that otherwise would be imposed. The other states providing increased penalties impose increased fines for subsequent violations.
Fines in those states that reduce penalties for possession of small amounts of marijuana for a first violation (or for any violation in those states that do not increase penalties for subsequent violations) are mostly up to one hundred dollars or set at one hundred dollars. Three states specify fines of up to two hundred dollars and one state provides a fine of one to two hundred dollars. Second violation fines, for those states that increase penalties, range mostly from two-hundred-fifty to four hundred dollars, with one state permitting up to one thousand dollars. Three of those states permit prison time of one to sixty days. For states that increase penalties still further for three or more violations, fines range from two-hundred-fifty to five hundred dollars, with possible prison time from five days to six months.
Colorado includes provisions in its possession laws that penalize the public display, use or consumption of marijuana. Under Colorado law, if the amount of marijuana involved is not more than one ounce, the person may be punished at a minimum by a fine of not less than one hundred dollars, or at a maximum by a fine of not more than one hundred dollars and fifteen days in the county jail. If the amount of marijuana involved is more than one ounce, the person is guilty of possession and shall be punished under the appropriate possession statute.
Does reduction in penalties for possession of small amounts of marijuana encourage increased use of marijuana? This question, understandably, troubles policymakers. In 1973, Oregon became the first jurisdiction in the United States to enact a law reducing penalties for possession of small amounts of marijuana (less than one ounce). Other states subsequently looked to Oregon to gauge the impact of penalty reduction when considering similar legislation. Senator Venditte of Nebraska urged the Nebraska Senate not to follow Oregons course of action:
Since the law went into effect a little over four years ago, marijuana usage in Oregon seems to have risen sharply. In 1974 for instance, the first year after the law went into effect, state police alone issued 633 pot citations. One year later, 1975, the figure rose to 718. In 1976, state police issued more than 2,000 citations. The figures are not yet in for 1977. But projections now apparently will exceed 3,000 and perhaps more. 104
No evidence, however, suggests that increased marijuana use was caused by Oregons reduction in penalties. Marijuana use increased steadily among all age groups during the 1970's, even in states that had not reduced or eliminated criminal penalties for possession. Dr. Lloyd D. Johnson, Program Director for the Institute for Social Research at the University of Michigan told a United States Senate Subcommittee at a hearing on the effects of marijuana:
As you probably are well aware, marijuana use rose consistently across the decade of the 70's for those of high school age, as well as for most other age groups.... Daily or near-daily use rose at an alarming rate between 1975 and 1978, nearly doubling in just three years from 6% to 11% of [high school] seniors. 105
Similarly, a secondary analysis of four national surveys conducted in the United States between 1972 and 1977 concluded:
It was found that first, levels of use tended to be higher in the "decriminalization" states both before and after the changes in the law. Second... states which moderated penalties after 1974... did indeed experience an increase in rates of marijuana use, among both adolescents (age 12-17) and adults (age 18 or older).... However, the increase in marijuana use was even greater in other states and the largest proportionate increase occurred in those states with the most severe penalties. 106
Thus, increased use of marijuana in states that reduced penalties for possession did not appear to be in excess of increased use in other states, and was, in fact, less than that of states with stricter penalties.
Some researchers have found that the legal status of marijuana, or other drugs, has little effect on usage. Individual and social factors other than legal status are more relevant in predicting drug use. Clifford F. Theis and Charles A. Register, Department of Economics and Finance of the University of Baltimore, conducted a study applying econometric analysis to measure the effect of legal sanctions for marijuana use on individuals reported drug usage. The study included a number of control variables commonly used by econometricians in analyzing behavior, such as age, education, marital status, ethnicity and urbanization. The study concluded initially that "there is no strong evidence that decriminalization effects either the choice or frequency of use of drugs, either legal (alcohol) or illegal (marijuana and cocaine)." 107 Further, Thies and Register found that, among the control variables, the most consistently significant to predicting drug use were religiousness, marital status and education. 108 They suggest that law and social institutions take a greater role in promoting social factors that decrease the use of drugs, observing that:
However, it is not evident that among the specific roles for law and social institutions should be criminal sanctions for possession of small amounts of marijuana. 109
In his testimony delivered before Subcommittee on Alcoholism and Narcotics of the United States Senate Committee on Labor and Public Health and Welfare in 1974, Richard Bonnie, Professor at the University of Virginia asserted that criminalizing marijuana use is an ineffective means of deterring that behavior, assuming that deterrence is a goal of criminalization. Among a number of reasons for his conclusion, Bonnie noted that marijuana use is frequently "expressive" behavior, and cautioned that a legal threat is likely to be less of a deterrent to that type of behavior than to behavior designed to meet some other end. Further, a legal threat tends to be less of a deterrent to adolescents and young adults, who predominate among marijuana users, than to older adults. Bonnie cited non-legal factors as being more determinative of whether an individual will use marijuana than the legal status of the drug:
[W]hether or not a person will join the millions of other Americans who have experimented with marijuana will be determined more by who he knows and how fearful he is of adverse health consequences than by fear of adverse legal consequences.... a large proportion of persons who have not yet used marijuana profess that they would not use the drug even if it were legitimately available, and offer health-related or ethical reasons.... Similarly, a large proportion (perhaps 50 percent) of the persons who have chosen not to continue use after their initial experimentation profess that they would not become "users" even if the drug were legitimately available.... 110
Bonnie concluded that only a small number of individuals who had either not experimented with or had experimented with and no longer used marijuana would be inclined to use marijuana if penalties for its possession and use were reduced.
Some argue that such a policy signals to adolescents and teenagers that society is more tolerant of marijuana use and will consequently encourage greater use of the drug among persons in those age groups. However, research indicates that even reducing penalties for marijuana sale and use among the population generally would not significantly increase marijuana use among teenagers. Dr. Lloyd D. Johnston surveyed approximately 17, 000 seniors from each graduating class between 1975 and 1979. The students were from both public and private high schools nationwide. Johnston asked each class what effect legal sale and use of marijuana would have on their own behavior. Johnston found:
In each of the last five graduating classes, students in the aggregate have predicted that they would be little affected even by these broad changes in the law. In 1979, half of the respondents said they would not use the drug, even if it were legalized, and another 29% said they would simply continue their current rate of use. Only 6% said they would use it more often than at present, while another 6% said they would try it for the first time. 111
Johnston, cautious of answers to such a hypothetical question, enlarged his sample of seniors to include those in states where penalties had been reduced (California, Ohio and New York). Johnston found the effects of penalty reduction in those states to coincide with the effects predicted by the students:
Looking at the impact of decriminalization on marijuana use between 1975 and 1979, we find little evidence of differential change in marijuana use between those states which decriminalized and those states which did not. Put another way, any increase in marijuana use in the decriminalized states, taken as a group, was equal to or less than the increase being observed in the rest of the country where decriminalization was not taking place. 112
A similar outcome occurred in the Netherlands, which adopted separate policies for soft-drugs (cannabis products) and hard drugs (heroin, cocaine) nearly twenty years ago. Criminal penalties for heroin trafficking, for example, increased while penalties for marijuana use decreased. "Coffee shops" are permitted to sell marijuana and hashish, provided they do not advertise, but are closed down immediately if caught selling harder drugs. 113 The result has been that:
Cannabis consumption among Dutch teenagers has increased -- but to levels slightly below those in the U.S. Dutch parents care at least as much about their kids as American parents do, but almost no one sees marijuana as a huge problem. As Eddy Engelsman, the former Dutch drug czar, explained, "We succeeded in making pot boring." 114
Some controversy exists about whether reducing penalties for marijuana increases the use of other drugs or of alcohol. Some researchers contend that reducing or eliminating criminal penalties for marijuana use is likely to encourage users of harder drugs to substitute less health-adverse marijuana. Ethan Nadelmann of the Lindesmith Center proposes that, given the choice, drug consumers prefer drugs that are both legal and of lower potency to more powerful ones. Nadelmann refers to the lessons of the last century:
Ethical debates aside, the principal objection to all drug legalization_proposals is that they invite higher levels of drug use and misuse by making drugs not just legal but more available and less expensive. Yet the late-nineteenth-century experience suggests the opposite: that in a legal market most consumers will prefer lower-potency coca and opiate products to the far more powerful concoctions that have virtually monopolized the market under prohibition.... The antidote to addiction in late-nineteenth-century America, the historical record shows, consisted primarily of education and regulation -- not prohibition, drug wars, and jail. 115
The notion is that some users of hard drugs would find marijuana more attractive after reduction of penalties because it is less harmful and would pose little legal risk to the user. Other researchers have found, however, that reducing penalties for marijuana has virtually no effect on either the choice or frequency of use of legal or illegal drugs. In 1988, Theiss and Register surveyed states that had reduced penalties for marijuana and found:
[W]e could say that decriminalization of marijuana increases the number of marijuana users by about one percent, and decreases the frequency of use of marijuana, among marijuana users, by about 0.3 times per month. Furthermore, decriminalization of marijuana has an almost indiscernible impact on the number of alcohol users or the number of cocaine uses. 116
Theiss and Register found neither evidence of substitution of marijuana for more adverse drugs nor of the "gateway" effect of marijuana -- that marijuana use leads to use of harder drugs and, therefore, making marijuana more available will result in increased use of other drugs. They concluded:
States that have decriminalized marijuana did not suffer epidemics of marijuana use, nor epidemics of other drugs, relative to states that continued to apply criminal sanctions to possession of small amounts of marijuana.... Stated conversely, recriminalization of marijuana is unlikely to yield a significant reduction in the use of marijuana or, for that matter, other legal or illegal drugs. 117
Zimmer and Morgan also concluded that while "most users of heroin, LSD and cocaine have used marijuana... most marijuana users never use another illegal drug." 118 Zimmer and Morgan found in their review of scientific literature no consistent correlation between increases and declines in marijuana use and the use of other drugs that would lead to the conclusion that marijuana users tend to use other drugs as well. Similarly, in the Netherlands, although marijuana use increased somewhat during the past decade, cocaine use decreased and remains lower than in the United States:
Whereas approximately 16% of youthful marijuana users in the U.S. have tried cocaine, the comparable figure for Dutch youth is 1.8 percent. Indeed, the Dutch policy of allowing marijuana to be purchased openly in government-regulated "coffee shops" was designed specifically to separate young marijuana users from illegal markets where heroin and cocaine are sold. 119
Thus, there seems to be no evidence that decreasing or eliminating criminal penalties for possession of small amounts of marijuana has increased the use of marijuana in those states that have done so in excess of the increased use of marijuana in other states during the past two decades. Nor is there conclusive evidence that reducing penalties for marijuana increases the use of other drugs, either legal or illegal.
Eric Single reports in his review of the impact of reducing penalties for marijuana in some states during the 1970's that all states that reduced or eliminated penalties for marijuana possession experienced reductions in the number and kinds of marijuana arrests made by law enforcement officers. Single reports the following examples of decreases in marijuana possession arrests in reduced penalty-states:
In California, marijuana possession arrests declined by 36%, from 38,878 in the first half of 1975 to 23,588 in the first half of 1976 when "decriminalization" was in effect.... More serious marijuana charges (possession with intent to sell, trafficking, etc.) did not decline.... There were similar decreases in marijuana possession arrests in other "decriminalization" states immediately following the change in law. In Minnesota possession arrests declined by 43%; in Columbus, Ohio, the corresponding figure was 36%; in Denver, Colorado, 41%. 120
Single found that reducing penalties for, marijuana possession resulted in decreased spending on marijuana law enforcement in those states that embraced this approach. Initially, Single found some evidence that police in the reduction states diverted their focus from marijuana possession to offenses involving other illicit drugs. 121 Further, Single concluded that:
As a result of the new laws, there was a sharp decline_in the incarceration of offenders and an increase in revenues from fines. In part due to the redirection of priorities toward the "hard drugs" and partly due to increasing use of fines, the total cost of marijuana enforcement declined substantially. For example, in California the total cost of marijuana enforcement declined from $17 million in the first half of 1975 to under $4.4 million in the first half of 1976. 122
In Connecticut, according to figures provided by the Court Operations Division, the total number of offenses disposed of under section 21a-279 of the Connecticut General Statutes during the period of July 1, 1994 to June 30, 1995 was 8,981. Of that number, 1,700 were convictions and 7,281 resulted in not guilty dispositions or were nolled. The figures do not reflect whether the disposed offenses related only to possession of marijuana. It does appear, however, that most marijuana possession cases do not result in convictions, even though the criminal justice system expends resources to process them.
E. Medicinal Use of Marijuana. Top
Since 1981, Connecticut has recognized the medicinal value of marijuana by permitting physicians to prescribe marijuana as a medication to treat certain patient disorders: glaucoma and the side effects of chemotherapy. That policy is embodied in Connecticut General Statutes sections 21a-246 and 21a-243.
Connecticuts legislation was part of a nationwide policy shift begun in 1978 in which thirty-six states enacted legislation, in the face of federal prohibitions, to permit patients to use marijuana for medicinal purposes.123 These laws remain in effect in twenty-four states. State legislation concerning medical access to marijuana generally falls into five categories: 1) therapeutic research programs; 2) prescriptive or pseudo-prescriptive authority; 3) scheduling marijuana under state controlled substances acts in a manner that allows its medical use; 4) medical necessity defense, and 5) removal of state criminal liability and penalties.
Two factors restrict the application of Connecticuts policy permitting medicinal use of marijuana: the number of disorders for which marijuana can be used is limited and pharmacies cannot carry marijuana to fill prescriptions written by physicians.124 In addition, without a change in federal law, patients using marijuana and physicians and pharmacies dispensing it still face possible criminal charges for violation of federal law.
F. Recent Changes in Other States
1. Introduction Top
In recent months, four states have taken several actions with respect to drug policy. In November, 1996, the Arizona electorate, in a ballot initiative, adopted a comprehensive proposal concerning drug treatment and criminal sanctions for certain drug activity. The Arizona initiative also permits physicians to prescribe controlled substances for treating certain disorders. Also in 1995 and 1996, the legislatures in Ohio and Massachuetts and the California electorate, by ballot initiative, adopted provisions allowing physicians to authorize use of marijuana for patients to address specific medical disorders.
2. Arizona Initiative. Top
Arizona voters, by a vote of 65% to 35%125, adopted a comprehensive measure that reforms Arizona drug policy with respect to treatment and criminal justice. The initiative was designed to move non-violent drug users out of the prison system and into expanded treatment and education programs and to permit extremely ill persons to have certain controlled drugs such as marijuana prescribed by a physician. Arizona ballot initiative 200, An Initiative Measure: Drug Medicalization, Prevention, and Control Act of 1996, has several components, most notably:
Those persons convicted of possession or use (not sale) of a controlled substance must be placed on probation, with appropriate levels of supervision, community service, home arrest and the like, and placed in an appropriate drug education or treatment program. On a third conviction, a term of imprisonment is imposed. Sale offenses and violent offenders are not eligible.
Those persons convicted of a violent crime while under the influence of a controlled drug must serve 100 percent of a prison sentence without parole.
The increased probation, education, and treatment programs are supported by a tax on alcohol and tobacco.
A physician, when supported on a second medical opinion, may prescribe certain controlled substances such as marijuana to seriously ill or terminally ill patients. A patient who uses or possesses a prescribed controlled substance would not be subject to criminal penalties.
3. Massachusetts, California, and Ohio. Top
In 1996, Massachusetts adopted a bill to establish a therapeutic medical research program as a means of providing medicinal marijuana to those for whom the drug offers relief. California voters, by a 56% to 44% margin126, adopted Proposition 215 which allows a physician to authorize the medical use of marijuana for certain disorders. A patient in possession of the physicians authorization is not subject to a criminal charge of possession (but not for sale or distribution) of marijuana. Similarly, a 1995 revision to the Ohio code (Ohio Code Ann Sec. 2925.11(I)) gives a person a defense to a charge of possession of marijuana if the possession is pursuant to a physicians recommendation. The use of marijuana for medical purposes is earlier discussed in section IV. F of this report.
G. European and Australian Drug Policies Top
European countries seek the ideal of a drug-free society. Many of those countries, however, now recognize the reality that persistent drug addiction, lucrative organized crime, and increasing costs for law enforcement, treatment, and prevention subvert the ideal. The United Nation's International Narcotics Control Board acknowledged the illusiveness of the goal of a drug-free society. The Board stated that "successes in eradicating illicit cultivation and production of narcotic drugs . . . can only be temporary since one source of supply and a particular kind of drug will inevitably be substituted for another."127 Similarly, the United States Department of Justice pointed out the limitations of law enforcement to eliminate illegal drug use. The Department of Justice noted that drug dealers "respond to enforcement pressures, changing, tastes, and market dynamics" by developing new drugs or increasing the potency of drugs like marijuana and heroin.128
Policies among European countries vary in their approach toward resolving the conflict between the ideal and the reality. Although all countries would undoubtedly prefer to eliminate entirely the social and health costs associated with drug abuse, national drug policies in many European countries represent pragmatic efforts towards minimizing such costs through a combination of strategies. Those drug strategies typically address four areas: law enforcement, treatment, prevention, and international cooperation.129 The extent to which any of these four areas are emphasized varies significantly among European countries.130 For example, France and Sweden both emphasize a law enforcement approach to combat drug abuse and adhere to abstinence as the goal of treatment programs. Sweden defines the drug user as a "criminal threat to society" and will admit only 450 "extremely ill" addicts to its methadone programs.131 In France methadone programs were almost nonexistent until 1993.132 While 1993 estimates showed that 30%-40% of intravenous drug users in France were HIV or AIDS infected and that 50% of the nation's prison population were drug users, neither needle exchange, nor methadone treatment was part of a general national policy.133
Responding to the relationship between intravenous drug use and transmission of HIV/AIDS, other western European countries have begun to focus on methods of harm reduction through innovative treatment and intervention programs. While all European countries continue to impose criminal penalties on drug trafficking, some countries have, since the 1980s, augmented the traditional, prohibition approach to illicit drug use. Key to the alternative approaches are needle exchange, methadone maintenance treatment, and other narcotic maintenance programs. These countries consider the new approaches to be cost-effective strategies toward ameliorating the chronic, costly, and dangerous social health problems of drug abuse and addiction.
A Dutch policy analyst at the Second International Conference on the Reduction of Drug Related Harm held in Barcelona, Spain in 1991 recommended that nations adopt policies of "normalization," treating drug use as "one of the many social and health problems in our society."134 An unfortunate consequence of the law enforcement approach to drug use is that users avoid authorities. The "drug user who is out of sight is out of control."135
To maintain more control over drug users, the British government instituted alternative drug control policies in 1988. Britain declared that AIDS is a greater public health danger than is drug abuse, reversing its prior position that drugs posed the most serious threat to the nations well being.136 The British policy now aims to minimize harms associated with illicit drug use by placing less emphasis on abstinence approaches and more emphasis on reducing the risk of AIDS transmission. Needle exchange, methadone maintenance, and treatment on demand programs encourage illicit drug users to "stay in contact with health and social services in an effort to minimize the harms resulting from addiction.137
Similarly, in Ireland, where approximately 50% of intravenous drug users were found to be infected with HIV or AIDS in 1993, national drug policy has shifted from a heavy emphasis on law enforcement to a national health approach which includes both methadone maintenance and needle exchange programs for addicts resistant to abstinence treatment programs.138
By 1993, most European countries had policies making clean syringes available to drug addicted persons through pharmacies, physicians or needle exchange programs.139 Table IV-1140 shows the extent to which European countries have designed and implemented needle exchange programs to minimize the harms associated with the practice of sharing needles among intravenous drug users.
In addition to syringe availability programs, several European countries have begun pilot programs that are alternatives to strict drug prohibition. Switzerland, for example, after finding itself "with the highest rate of AIDS and addiction in Europe," embarked on a series of harm reduction initiatives, including an innovative heroin maintenance program that is designed for long-term addicts for whom traditional forms of treatment have failed.141 The program is described in more detail below.
Harm reduction initiatives, like Switzerland's heroin maintenance program, supplement rather than replace "tough police measures" and traditional abstinence-oriented treatment models.142 Even countries with relatively low rates of HIV and AIDS infected intravenous drug users have implemented alternative responses to illicit drug use while continuing to criminalize drug trafficking.
Table IV-1. Syringe Availability to Drug Addicted Persons in Selected European Countries
|COUNTRY||PHARMACIES||STATIONARY TREATMENT &/OR NEEDLE EXCHANGE PROGRAMS||MOBILE VANS OR BUSES||VENDING OR SLOT MACHINES|
|limited program for 250 addicts|
|France||limited 3 year program began in 1993|
In the Netherlands, where in a population of 15.5 million, only 21,000 (.1%) are addicted to hard drugs such as cocaine and heroin, and only 5% of IDUs are HIV infected,145 an integrated national and local approach consolidates the efforts of police and social and public health officials. The Netherlands Institute for Alcohol and Drugs states that "the primary objective of Dutch drug policy [is] health protection."146 To achieve this objective, "great efforts are made to keep users out of the illegal circuit" by expanding accessibility to treatment programs, tolerating the sale and use of "soft drugs," such as hashish and marijuana, but continuing vigorous enforcement of the prohibition on sales of "hard drugs," which include heroin, cocaine, amphetamines, and LSD.
To further their policy to separate marijuana from more dangerous drugs, Dutch authorities permit "coffee houses" in Amsterdam in which adults may purchase marijuana for use on the premises. Alcohol and use and sale of hard drugs at these coffee houses is not permitted and is prosecuted. Though sale and possession of marijuana is, in fact, illegal, Dutch policy is to concentrate law enforcement effort on sales of hard drugs. The Dutch have found that marijuana use has not increased and that the coffee houses helps keeps marijuana users out of the criminal culture of hard drug dealing and using.147
A 1995 report from the Dutch Ministry of Health, Welfare and Sport, the agency responsible for drug regulation, showed that 75% of the total number of heroin addicts participated in methadone maintenance.148 By contrast, only 23% of chronic heroin addicts in the United States are in methadone programs.149 Unlike the United States, methadone may be prescribed by general practitioners. It is also available at police stations to addicts who have been arrested.150 Methadone buses dispense treatment free of charge to addicts at predesignated locations each day.151 Twenty five percent of methadone users "are fully integrated into society, and have jobs or are students."152 The national Job Services program guarantees a place in an employment project for addicts who voluntarily agree to treatment.153 Social housing provides care for homeless addicts with psychiatric disorders.154 In 1995 the Health Council of the Netherlands recommended to the Secretary of Health that a pilot heroin maintenance research program be conducted to study the "effectiveness/harmful consequences of prescribing heroin."155 The subjects involved in the program will be "severe heroin addicts" for whom other methods of treatment have failed. As of 1995 this proposal was awaiting the approval of the Dutch Minister of Health.156
Many Western European countries are attempting to adopt harm reduction approaches to drug policy as discussed in this report. This developing approach relies on a community commitment to treating drug use as a public health problem. Key components include increased availability of sterile needles to reduce the transmission of disease, lowering barriers to access methadone maintenance treatment, and seeking the cooperation of law enforcement in emphasizing a public health approach to drug control. The experiences of these European experiences with drug policy - a policy that emphasizes public health perspectives - are important examples of successful alternative drug policies that are worthy of consideration for Connecticut.
H. Medicalization of Drug Treatment
1. Introduction Top
The European approach would place more emphasis on medicalization. Medicalization refers to a drug treatment program operated by an addiction specialist physician, clinic, or special drug dispensary that provides certified heroin addicts with legal heroin. The addict is treated by maintaining his or her drug use at clinically safe levels. The drug addict is not criminally liable for drugs used to treat his or her addiction if they were obtained from the licensed source.157
A number of municipalities set up drug clinics in the United States in the early part of this century that treated addicts by maintaining them on their addictive drug. A successful clinic was operated by the New Haven Police Department. The clinics were shut down, not because they were unsuccessful in their treatment program, but because maintenance treatment was illegal under the federal Harrison Act.158
2. Swiss Heroin Maintenance Program Top
In 1993, the Swiss government authorized an experiment for the prescription of heroin (or diacetylmorphine) to 400 addicts. The program was designed to (1) improve mental and physical health; (2) improve social integration and detachment from the illegal drug scene; (3) reduce illegal activities; and (4) reduce or control drug use. 159
Based on the success of this pilot program, in 1994 Switzerlands governing body, the Federal Council, voted to expand the number of prescription slots in the pilot program to 1,000: 800 for heroin, and 100 each for morphine and methadone.160
Criteria for participation. Participation in the project was voluntary. Hard-core drug users were targeted - those who had not benefited from conventional drug treatment. The following entry criteria were used:161
At least two years of opiate dependence, i.e., consumption of heroin or other opiates on a daily basis;
At least two failed attempts at treatment, including detoxification, methadone maintenance, and residential treatment;
At least 20 years old;
Clear evidence of psychological or health problems related to drug use;
Agreement to participate in the treatment and counseling program;
Agreement to comply with the scientific aspects of the program;
Agreement to relinquish driving privileges.
Three hundred forty participants received a legal supply of heroin each day from one of the nine prescribing programs in eight different cities. Eleven of the participants also received morphine, and thirty-three received injectable methadone. The heroin was administered at a clinic that was open every day. The amount of the dose was determined by whatever the participant wanted, but the average amount was 450 to 500 milligrams per day, in up to three injections. A waiting room was available for use before and after the injection. An injecting room was used by staff to prepare the syringes and by participants who injected themselves. The government cost was approximately $50.00 per client, per day; client cost was $7 per day. A participant could have been banned from the program under the following circumstances: driving, bringing drugs in or out of the facility, failing to comply with research requirements (e.g., urine testing, group therapy), and exhibiting violent behavior in the facility.
By prescribing heroin legally to addicts, the Swiss intend to reduce addicts criminal activity and their risk of contracting and spreading AIDS and other diseases. Addicts live in constant fear that they will not be able to get enough drugs. With a drug maintenance program, the addicts know how much heroin they are getting, they know that the drug is not adulterated, and they know that they will definitely get the heroin. This assurance is intended to provide the addicts with a feeling of control, giving them room to try to stabilize their consumption patterns and regulate their habit. The programs expects that the addicts financial burdens will be reduced and they will no longer be dependent on the illicit drug market. The Swiss program emphasizes a social-psychological approach to a complex personal problem. It recognizes that heroin maintenance alone cannot solve the problems that led to the heroin addiction in the first place. Thus, the program focuses on stabilizing the addicts living arrangements, job situations, and personal relationships.
Results and Impressions Overall the Swiss researchers concluded that the trial demonstrated the feasibility of a heroin maintenance program. The Swiss considered four primary factors in evaluating the trial programs: feasibility and public acceptance of a program; attractiveness of the program for the target population; retention rates; and induced behavior change. There were no drug overdoses even though some addicts started out with large doses of up to 900 milligrams of heroin per day, there were no problems controlling the heroin or methadone, the programs were not threatened by organized drug selling networks (i.e., no black market for diverted heroin), and the programs did not disrupt any neighborhoods. The prescription of heroin greatly reduced addicts financial burdens, while breaking their ties to the illicit drug market. Overall, participants experienced general improvements in their lives, including their social lives and their work situations. Swiss researchers concluded that heroin per se causes very few, if any, problems when used in a controlled fashion and administered in hygienic conditions.
Specific results were:
Retention rate was extremely high (approximately 80%). Approximately 10% of the participants dropped out or were banned from the program, and approximately 10% of the patients moved to other treatment programs;
Participants in the program for more than one year did not have relapses;
Participants use of the heroin stabilized, with a tendency towards declining use;
Participants appreciated the medical and counseling services;
Participants felt financial relief;
Participants experienced improved social integration;
Participants experienced improved physical health: they had fewer problems with their veins, they followed a medical regimen, their injections were in hygienic conditions, they had access to medical care, and their drug use was controlled.
3. Australias Proposed Pilot Study Top
In June 1995, the National Centre for Epidemiology and Population Health at the Australian National University and the Australian Institute of Criminology proposed a pilot study to determine whether the prescription of heroin is a useful addition to current maintenance treatment options for dependent heroin users.162
The proposal contained the following recommendations:
Conduct a controlled pilot study of 40 volunteers who have dropped out of methadone treatment;
Provide maintenance treatment with heroin coupled with continued law enforcement and prevention activity;
If the first pilot study results in a positive outcome, conduct a second pilot study with 250 dependent heroin users;
If the second study results in a positive outcome, conduct a controlled study with 1000 volunteers;
After an independent evaluation of the pilot studies, a recommendation should be made to the legislative assembly.
As of June 1996, no political decision regarding an actual trial with participants in Australia had been made.163
I. Gateway Concerns Top
One of the arguments used by drug prohibitionists against those who would reduce or eliminate penalties on the use of marijuana is that marijuana is a "gateway" drug - that a person who begins with use of marijuana is led thereby to use other, more dangerous substances. Marijuana use must therefore be prohibited, this argument runs, to prevent a person from taking the next step. Mark Kleiman puts the argument this way:
Even if marijuana use were entirely benign in itself, it would still represent a problem if it tended to lead to the use of other, more dangerous substances . . . Since marijuana is far more widely used than any other illicit drug, even a weak gateway effect could represent substantial social harm. In my view this effect ought to be the primary area of concern about marijuana for those who do not regard occasional intoxication as a bad thing in itself and who are either unconvinced of or unperturbed by the lasting attitudinal changes to which smoking marijuana may lead. If marijuana smoking generated an additional one-in-ten, or even one-in-twenty, risk of experimentation with cocaine smoking or opiate injection - additional, that is, over the risks faced by an otherwise similar person who had somehow been prevented from smoking marijuana - that would be enough to justify substantial efforts to control marijuana. 164
Kleiman suggests several mechanisms by which this gateway effect could occur, but the argument boils down to the hypothesis that a person that has a positive experience with one illicit substance, marijuana, may be interested in experimenting with other, more potent illicit substances, and that a culture that supports illicit marijuana use provides fertile ground for promotion of other illicit substances.
No good evidence exists as to the extent of such a gateway effect. In fact, the stronger or more potent the effects of an illegal drug (such as cocaine and heroin), the fewer who use it compared with the less potent marijuana. If there is a gateway effect, it may be caused by the illegality of marijuana. And if such a gateway effect exists, it may not differ in kind from a gateway effect of using alcohol, tobacco, or prescription drugs.
The facts that are available suggest that most users of hard drugs - such as heroin and cocaine - have also used marijuana, as well as alcohol and tobacco. However, the majority of marijuana users have not gone on to try hard drugs. As many as 70 million Americans may have smoked marijuana - less than half a million are estimated to be addicted to heroin.165 One reform group notes that "In 1994, less than 16% of high school seniors who had ever tried marijuana had ever tried cocaine." In the Netherlands, where marijuana use has been decriminalized, the comparable figure is 1.8%. Part of the Dutch rationale for decriminalizing marijuana is that decriminalization will help sever any link between marijuana use and use of the harder illicit substances by allowing the marijuana users to obtain marijuana legally without resort to the underground black market of illicit dealers who may also provide harder drugs.166 As one commentator notes, to the extent that any "gateway effect" exists, it may be caused by criminalizing marijuana use rather than by any pharmacological property of the drug.167
Again, the gateway effect is speculative. There is no data to indicate how many persons, if any, have gone on to use heroin or cocaine because of prior use of marijuana. Many people use marijuana without going on to harder drugs. Any gateway effect then is neither strong or the result of some compulsion. One can speculate that any gateway effect is as strongly, or more strongly, correlated to use of alcohol.
We can, for example, guess, intuitively, that most drugs, including alcohol, are used by persons who are inclined to seek recreational pleasure in a psychoactive substance or who find use of the drug helpful to self-medicate for stress, addiction, or some other medical condition. Any positive experience with a drug may reinforce that drug use. Pleasure, or stress reduction, obtained from drinking alcohol may dispose one to try another more potent drug. A pleasurable experience with marijuana may similarly serve as an inducement to try a harder illegal drug. To the extent that drinking is more common that smoking marijuana, drinking may have the more pervasive effect.
On the other hand, a person who is willing to use a hard drug might take that step anyway - it may reflect his willingness to take risks to obtain pleasure or it may reflect his economic and social status and cultural milieu rather than prior marijuana use. In such a case, his prior marijuana use is statistically incidental to the later use - a reflection of the fact that, given that marijuana and hard drugs are used for similar purposes and given that marijuana is more accessible, a person who will use a hard drug is likely to have already used marijuana.
Moreover, in a given case, a person who might otherwise use a hard drug might not use that drug if he has access to marijuana that meets his perceived need. And a marijuana user who is denied access to marijuana might use a hard drug in reaction to that lack of access. After one marijuana crackdown, for example, a doctor at the Haight Ashbury Free Clinic in San Francisco reported a sudden increase in the use of stronger drugs.168 In those cases, access to marijuana might actually reduce the use of hard drugs.
In short, there is no convincing study that separates persons who move on to harder drugs because of marijuana from those who would have moved on to the harder drug in any case. There is no clear causative link between marijuana and harder drugs. The Netherlands statistics suggest that any such causative link is relatively weak and that any such correlation is stronger if both marijuana and the harder drugs are illicit.
Given this analysis, the "gateway effect" is a speculative concern and difficult to evaluate. Intuitively, some gateway effect may exist. That effect, however, is unlikely to be different in kind from the effect of legal substances like tobacco, alcohol, and prescription drugs.
Given that we are uncertain as to whether the effect exists and, if it exists, how it works, it does not have any clear implications for current policy. Commentators such as Kleiman, for example, argue that the possibility of such an effect supports criminalizing marijuana. The Dutch model suggests that the criminalizing of marijuana may, itself, be what gives marijuana any gateway effect that it may have.
J. Other social policy alternatives Top
While current drug policy recognizes and attempts to deter the self-destructive use of various psychoactive drugs, it does little in the way of assisting the user in controlling his behavior and remaining a contributing member of mainstream society. Under our prohibition system, the primary consequence of the persons self-destructive behavior is criminal justice sanctions, including incarceration. Occasionally, the system will impose treatment on the user to teach him how to abstain. However, the legal system does not review the drug users case for "root causes," aspects of the persons social, educational, and economic status that help to explain the persons ultimately irrational decision to use drugs. As Elliot Currie puts it, "We have, after all, been trying the alternatives for forty years. We have tried moral exhortation. We have tried neglect. We have tried punishment. We have even, more grudgingly, tried treatment. We have tried everything but improving lives."169 Conceptually, in at least some cases, the most cost-effective way to address a drug abuse problem may be to redress these underlying social and economic causes. Indeed, some of the drug use may be traceable to conditions of social and economic deprivations that can only be addressed by broad social programs. The recent political trend, however, has been to further disable any person found to be using drugs from access to social benefits such as welfare and housing.170
The current crisis in drug policy - itself a reflection of fear over the spread of AIDS and of concerns caused by inner city violence - suggests that we might be wise to take a more pragmatic approach.171 Pragmatic alternative approaches should be considered for a number of reasons, but most importantly because they may work more effectively and at less cost than current policies.
One aspect of the drug crisis, for example, has its roots in the lack of economic opportunity accorded young minorities by mainstream society. Rates of unemployment for young urban black males are devastatingly high. People who are unemployed, it goes without saying, have time on their hands and an urgent need for money. They also lack access to health care, prenatal care for their babies, adequate housing, and job-training or other education to turn their situation around. Whatever the morality of drug use, it is not wholly surprising that a disenfranchised population engages in it and finds the mainstream social sanctions largely irrelevant.172
Current policy often takes such a minority person, incarcerates him for substantial periods, and turns him back to the streets stigmatized, with even less economic opportunities than before his first arrest. The cost of the incarceration alone is high. When the other costs of law enforcement and the various social costs of losing that individual to society - as a member of a family, as a father, as a mother, as a potential employee - are added in, the aggregate cost is enormous. Other social strategies are possible and, in given circumstances might be effective.
For example, a persons arrest for possession could be an opportunity for job-training as an alternative to incarceration. A state run job program (such programs as Job Corps) could teach particular skills and simultaneously employ the trainee in public interest programs - rebuilding infrastructure, staffing public health clinics, working as an apprentice with private industry.
A persons arrest could also provide the opportunity for other assessments. Does the person have access to necessary heath care? Is she a pregnant woman who needs prenatal care? Housing? Child-care? Literacy skills? Counseling? Protection from abuse? The social cost, in each case, of the person not having access may be that the person, and maybe the persons child, is lost as a constructive member of society. Social programs at the margin that make a difference - that save a child from retardation - that make an unemployed drag on society employable, have enormous potential to pay back the investment.
The point is simple. An incarcerated person is a public expense, effectively on a distorted form of public welfare. The $30,000 that it costs to warehouse the person for a year might be better spent figuring out how to include that person in mainstream society - harnessed to a job and with a stake in sobriety. Such programs will not work for everyone. However, they might work for some and the potential return on investment may well be better, given recidivism rates, than the typical investment incarcerating a drug user.173 While Connecticut has some programs such as AIP (alternative to incarceration program) that use this approach, it has not been incorporated system wide or fully in Connecticut policy. The possibility of enacting such plans should be explored.
SECTION V. AREAS OF FURTHER ANALYSIS AND POSSIBLE RECOMMENDATIONS Top
Does Connecticuts current drug policy adequately address the needs of society and of drug users? The Commissions Drug Policy Study Committee will continue to review Connecticuts existing law and policies and will identify alternative policies with the potential for reducing harm. For example, the Commission will review some of the nations best thinking on alternatives: reducing sentences, for example, to keep minor offenders out of penal institutions; better using custody as an opportunity for treatment and rehabilitation; changing policing strategies; lowering barriers to treatment; and creating more accountable drug education programs. At the least, those alternatives must receive serious consideration.
Areas for further inquiry and possible recommendations include:
Alternative incarceration programs
Medical maintenance treatment programs for persons addicted to opiates
Education, prevention, and intervention
Top Part 2, Sections 1-3 Part 2, Appendix A Part 2, Appendix B Return to Part 1 of the Report