Background

Our current policy mix is not working the way we want it to. The ease with which drugs can be obtained, the price, the number of people using drugs, the violence on the border all show that. We need to rethink our responses to the health effects, the economic impacts, [sic] the effect on crime. We need to rethink our approach to the supply and demand of drugs (U.S. Senator, James Webb, 2008).

For over a century, America’s drug policy has been from a law enforcement perspective.  This approach, has led to a circle of violence across America, particularly in the inner cities.  From a policy stand point; the enforcement centric approach has not worked.  It produced some unintended consequences.  By defining the mission as a war on drugs, the psychology follows that we treat every drug incidence as a war.  In wars, there are casualties.  Cash strapped cities, drug victims needing help, and over policed minorities are the unintended casualties of the war.

War involves weapons, force, killings, and enemies.  War involves an us vs. them approach.  This is hardly beneficial or effective because criminal elements tend to adapt.  As a result, policing adapts by escalating the “war.”  Since our ability to end all drug abuse or supply is unlikely, there seems to be no clear end in sight for the drug war.  Worse still, a chunk of the critical dollar is channeled toward prosecuting the drug war, as opposed to increasing drug education, treatment, and rehabilitation programs.

Historically, drug enforcement has tilted toward minority citizens, since the 1870s anti-opium war, which was largely a race-centric policy, specifically targeting Chinese immigrants.  The various drug law enforcement regimes have predominantly targeted minorities disproportionately for drug enforcement and felony sentencing.  The Harrison Narcotics Act of 1914 was targeted at what was then referred to as the cocainized blacks (Sterling, 2001).  Likewise, the subsequent anti-marijuana policies around the same time in the West were directed at the immigrant communities of Mexican descent (2001).  As a result, minorities have been disproportionately targeted for drug enforcement and felony sentencing.  These policy proposals will seek to address these problems.

The First World War ended in 1914, and the Second war ended in 1945. War ultimately ends, and combatants eventually retreat. When will the drug war end?  One issue that this policy proposal will address is the way the drug problem is being approached.  Defining the mission as a “war on drugs” promotes violence between the law enforcement community, the peddlers, and the user community. What policy proposals might we put in place to address the circle of violence on America’s streets as a result of the war?  If there is a war going on, will a truce be apt?

This policy paper will recommend policy alternatives that will replace the old enforcement regimes with emphasis on treatment and decriminalization. The policies’ outcome will also be measured against their cost effectiveness or cost benefits.  Treatment and decriminalization as potential replacement policies will be analyzed.  A review of much of the issues associated with treatment and decriminalization will be discussed.  The problem will be defined, questions will be raised, and finally, various policy proposals will be made.

Key Terms: Definitions

Terms such as Drugs, War, and Minorities will surface in this Policy memo.  To avoid confusion, there is need to define them relative to this proposal since these terms and concepts sometimes have multiple connotations.   For example, since the term drug is interchangeable with medication (as in medicine), a distinction has to be made with regard to its usage in this policy memo.

Drugs.  For the purpose of this policy brief: “Illicit drugs are those that are illegal to make, sell, or use” (Mara et al, 2014).  Drugs refer to illicit drugs of abuse.  See Appendix for a breakdown of drugs according to the Drug Enforcement Administration (DEA).

War.  For the purpose of this policy memo, war applies narrowly to: “Terrorism, coordinated riots, a high crime rate, brutal policing, or criminal predation” (MUELLER, 2009, p.299).  I define it as legal use of force or violence by the agents of the state against perceived criminal elements over a period of time (usually years).  For example, the war on drugs as lasted over 44 years since President Nixon launched it on June 17, 1971 (Drugwarfacts.org, 2007).

Minorities.  This policy brief views a minority as:  “A subordinate group whose members have significantly less control or power over their lives than members of a dominant or majority group” (Schaefer, 1979, p. 5-10).  In the United States, racial minority groups include Blacks, American Indian, Asian Americans, and Hawaiians.  Note: There is often systemic unequal treatment of these groups in the criminal justice system (Schaefer, 1979).

Theoretical framework and principles

1. We must do away with ideologically driven drug policies. New drug policies must hinge on facts and evidence.  Policy makers must understand what works and what doesn’t?  Drug policy must be measured based on reduction of violence (harm reduction)—including law enforcement induced violence—treatment, and overall wellbeing of communities.
2. Policies must de-emphasize labels by focusing on bringing drug users from the periphery of society into the core by ending marginalization and criminalization (i.e., decriminalization). This policy brief adopts the “patient not criminal” (i.e., treatment) approach.

Problem Definition

The United States spend more money as a percentage of its GDP on drug law enforcement in comparison with other enforcement:

Between 1981 and 2008, federal, state, and local governments are estimated to have spent at least $600 billion (adjusted for inflation) on drug interdiction and related law enforcement efforts; factoring in costs associated with treatment and rehabilitation, the overall total rises to around $800 billion.  If one were to also add in ‘invisible’ losses brought about by curtailed job opportunities and reduced workplace productivity, the true cost would be far higher.  (Chalk, 2011)

This policy brief will reveal that despite U.S.’s astronomical spending on the drug war, it has yielded little to no result in terms of reducing overall harm to society.  In fiscal year 2011, when Chalk conducted his study, U.S.’s national drug control budget (NDCB) was $24,365.4 (in billions).  By fiscal year 2015 drug enforcement costs ballooned to $26,336.7 (see Figure 1 for illustration).  In FY 2016, the President requested $27.6 billion to fund the “2015 National Drug Control Strategy (Strategy) effort to reduce drug use and its consequences in the United States” (Office of National Drug Control Policy [ONDCP], 2015)—an increase of $1.2 billion or 4.7% increase (2015).  The NDCB is also expected to increase beyond fiscal year 2016.

Figure 1: Drug Control Resources by Function; adapted from ONDCP, 2015.

Clearly, based on the historical and future budgetary allocations and spending, the current policy of enforcement, incarceration, and prohibition has produced dismal success.  Common wisdom would suggest that drug control cost should be reducing yearly, but that has not been the case given the yearly budget increase.

Along with increased budgetary spending on the drug war, there is a social cost.  There has been an explosion in incarcerations as a result of the reliance on the law enforcement and prohibition model of drug control policy.  According to the report by Sabol et al (2007) of the Bureau of Justice Statistics (BJS), the U.S. is the leading nation in terms of the number of people serving time behind bars for various offenses (2007).  The U.S. is the global leader when it comes to the number of individuals imprisoned for drug offenses.

In addition, the same BJS report noted that there are two million incarcerated Americans in the federal, state, and local correctional facilities (Sabol et al, 2007).  One quarter of those serving time, are doing so for various drug offences.  According to the Substance Abuse and Mental Health Services Administration (2015), approximately 6.8 million Americans suffer from drug addiction.  Drug addictions continue to drive the increase in the number of incarcerated Americans serving time for various drug offenses.  The law enforcement and incarceration model is unsustainable and unaffordable in the long run because it diverts dwindling resources from other government—i.e., federal, state, and local—programs into prosecuting the drug war.

Racial disparity in incarceration

The findings of racial disparities in incarceration due to drug related offenses threaten to unravel America’s criminal justice system.  A foremost democratic and multi-ethnic nation like America should exhibit equity in its criminal justice system or risk long-term social and political chaos.   According to Carson (2015), in a BJS report, out of the approximately 208,000 individuals serving sentences for various drug offenses in 2013: “67,800 were non-Latino/Hispanic white (32.6%), 79,900 were non-Latino/Hispanic black (38.4%), 39,900 were Hispanic (19.2%), and the remainder were unaccounted for or not specified in the report” (Carson, 2015).  These findings fly in the face of the knowledge that minority Blacks make up 13.2% of the U.S. population, Hispanics, 17.4%, and Whites, 62.1% (U.S. Census Bureau, 2015).  A federal household survey in 1998 found that Whites make up 72% of illicit drug users, Blacks 15%, and Latino 10%, but 37% of arrests are Blacks and 58% of drug convictions are Blacks; Latinos making up 21% (SAMHSA, 2013)

From the available data cited above, it is clear that:

• The law enforcement model (i.e., the drug war) and prohibition is costly, ineffective, and socially and fiscally unsustainable.
• There is a healthcare crises because of the over reliance on the law enforcement model as against the treatment model.
• Minorities have been disproportionately targeted for drug enforcement and felony sentencing.

Methods

This policy analysis utilizes a multi-strategy approach.  That is, a combination of rational (cost benefit analysis) and non-rational approach (normative approach based on the principle of equity).  This memo utilizes cost-benefit analysis giving the new era of budgetary and fiscal constraints (i.e., post great recession climate).  There has to be judicial use of limited resources.  Alternative strategies (i.e., decriminalization and treatment) to the current regime of prohibition and incarceration will be considered based on cost to benefit ratio.

Yes, numbers speak but reason must also prevail.  Aside from the fiscal portion of the analysis, this proposal adopts a normative strategy by addressing the question of: What is and what ought to be?  What is the right thing to do in the face of the inability of numbers (dollar) to solve the problem?

Issue analysis

The discussion within the country over the issue of drug policy reform is divisive among policy analysts, law enforcements practitioners, and lawmakers—at all levels of government.  There are those who advocate for doubling down on the existing policy regime by arguing for the allocation of more funding for law enforcement (U.S. Department of Justice Drug Enforcement Administration, 2015).

Overwhelmingly, the advocacy for the doubling down of the status quo is from the political right and law enforcement intelligentsia (Freiburger, 2014).  One argument that pro prohibition and criminalization employ is the “Flouting Federal Law” (FFL) argument (Stimson, 2010).   Proponents of the FFL argue that:  “Supremacy Clause of the Constitution of the United States, the Controlled Substances Act, is the supreme law of the land and cannot be superseded by state laws that purport to contradict or abrogate its terms” (2010, p. 7).  As such, the current marijuana legalizations in the states are illegal (2010).

There is also the health risk argument for the continuation of the current drug policy.  Proponents of the health risk (HR) argument point to scientific finding that “marijuana use during the teen years can permanently lower a person’s IQ and interfere with other aspects of functioning and well-being” (National Institute on Drug Abuse, 2014).  On the other hand, a report of the national survey on drug use (between 1975-2013) revealed no concrete evidence on the effect of drug use (i.e., Cannabis) on adolescents (Johnston et al, 2013, p. 401).  However, as more states decriminalizes (e.g., marijuana), it is expected that adolescents’ use will increase (2013).  By and large, proponents of the HR argument asserts that marijuana (i.e., poster child for pro legalization and decriminalization arguments) is “addictive and that its use significantly impairs bodily and mental functions” (Stimson, 2010).

In addition to the health risk argument, there is the crime escalation (CE) argument for retaining the current policies.  The proponents of the CE argument assert that: “Even where decriminalized, marijuana trafficking remains a source of violence, crime, and social disintegration” (Stimson, 2010).  This policy memo argues that behind the CE arguments lies the silent “broken window theory” (BWT).  BWT is the notion that societies can prevent big crimes by “checking” small crime (in this case, possession of marijuana).

This policy memo does not discuss the argument for change because that is essentially what this whole memo is all about.  However, there is clear evidence that public opinion is moving away from the status quo towards decriminalization, treatment, and regulation.  It is appropriate to say that the public appears ready to call a truce and bring an end to the drug war.  According to a Pew Research Center (PRC) survey:

67% of Americans say that the government should focus more on providing treatment for those who use illegal drugs such as heroin and cocaine.  Just 26% think the government’s focus should be on prosecuting users of such hard drugs. (PEW Research Center, 2014).

Policy Alternatives and Proposed Solutions

Recently, the stasis in policies is starting to show signs of movement.  Since 2012 when Colorado passed the law legalizing the recreational use of marijuana, a wave of anti-prohibition initiatives has been proposed at the state level.  States across America have flirted or weigh policy alternatives to current policies but there are still no agreements on what courses of action to take.  This policy memorandum shall examine alternatives to the status quo (i.e., criminalization and incarceration).  As noted above, studies show that the current enforcement regime is ineffective.

As a result, alternatives must consider fiscal sustainability and harm reduction.   Harm reduction principle is based on the notion that society can reduce the damages that drugs cause individuals, family, and societies in general by emphasizing treatment over incarceration (Ciment, 2006, p. 579).  Basing alternatives on fiscal sustainability and the principle of “harm reduction” will ensure that facts and evidence, not ideology, drives policymaking.  The alternatives to the policy problems are decriminalization, regulation, and treatment over incarceration.

Alternative 1:  Decriminalization.

The law enforcement or criminal justice model to the country’s drug epidemic lacks efficacy in preventing drug abuse.  It is unsustainably costly and counterproductive.  Criminalizing (i.e., prohibition) is costly because it drives up the cost (both monetary and nonmonetary) of the drug.  High drug cost, in turn, means that more suppliers will enter into the drug economy (law of demand and supply).

One effect of criminalizing the drug problem is the never ending circle of violence. According to the findings by Jensen (2000), decriminalization:

Would decrease violence associated with attempts to control illicit markets and as resolutions to disputes between buyers and sellers.  Moreover, because the perception of violence associated with the drug market can lead people who are not directly involved to be prepared for violent self-defense, there could be additional reductions in peripheral settings when disputes arise. (p.33)

Stopping prohibition would improve the “violence-scape” of the American society.

Additionally, a research conducted by Miron and Waldock (2010) revealed that:

Legalizing drugs would save roughly $41.3 billion per year in government expenditure on enforcement of prohibition.  Of these savings, $25.7 billion would accrue to state and local governments, while $15.6 billion would accrue to the federal government. Approximately $8.7 billion of the savings would result from legalization of marijuana and $32.6 billion from legalization of other drugs. (p. 1)

No doubt, the fiscal situation of the government (federal, state, local) would improve considerably.  Better still, the savings could be deployed into drug treatment and counseling.

Alternative 2:  Regulation.

Aside from decriminalizing drugs, drugs should be regulated like other pharmaceutical drugs.  Regulation (i.e., targeted at usage, sale, and age restriction) will bring the market out of the underground economy into the open regulated market.  Drugs in the open regulated market will eliminate the need for violence.  Regulation would also normalize drug price and reduce potential profit margin (Insulza, 2013).

In addition, regulation will potentially reduce overall demand “because legal sellers face a stronger incentive to obey such regulation than underground sellers, who are already hiding their actions from authorities” (Miron & Waldock, 2010, p. 53).  The underlying assumption is “that the marginal costs of evading tax and regulatory costs is zero for black market suppliers who are already conducting their activities in secret” (p.53).

Another important impact of regulation is the potential tax revenue accruals from taxation, which is estimated to be:

$46.7 billion annually, assuming legal drugs were taxed at rates comparable to those on alcohol and tobacco.  Approximately $8.7 billion of this revenue would result from legalization of marijuana and $38.0 billion from legalization of other drugs. (Miron and Waldock, 2010, p. 53)

Regulation will greatly reduce the vices associated with illicit drug trade and increase government revenues.  The revenue accruals from regulation can channeled into treatment and prevention programs.

Alternative 3: Treatment.

Between January 1994 and December, 2000 the government of Switzerland conducted a study of 1969 drug dependent individuals on treatment, and the result was a resounding success.  The result concluded that:

Heroin-assisted treatment programs are cost-beneficial to Swiss society, since patients often show great improvements in medical and social variables, including criminality.  In other words, the financial benefits from less criminality, less health-care use, and improvements in social variables are higher than the costs of treatment. (Rehm et al., 2001, p. 1420)

An analysis of the Swiss findings revealed that for treatment participant, criminal infractions fell by 60 percent (2001).  For participants, incomes generated from illegal sources also dropped from 69 to 10 (2001).  Use of illicit/ illegal drug declined.  Participants of the study also showed an improvement in gainful employment (i.e., from 14% to 32%) (2001). Overall health improved and incidence of HIV infection declined among the controlled groups—i.e., those who stayed in treatment program (2001, p. 1418).  There were no deaths from overdoses, and no prescribed drugs were diverted to the black market.  A cost-benefit analysis of the program found a net economic benefit of $30 per patient per day, mostly because of reduced criminal justice and health care costs (2001).

According to the Justice Policy Institute (JPI), treatment is more cost effective than incarceration (JPI, 2008, p. 3).  The result of the policy brief by JPI showed that for every increase in funding (+14.6% between 1995-2005) for drug treatment there is a corresponding decline in violent crime by twofold (-31.5% between 1995-2005) (p.3).  For every +14.6% increased spending, there is a +37.4% increase in drug treatment admission rate (p.3).  Clearly, the cost advantage is in favor of treatment because +14.6% expenditure yields -31.5% and +37.4% in violent crime reduction and drug treatment admission rates respectively (p. 3).  By and large, community based drug treatment is comparatively more beneficial and cost effective than incarceration (Aos, et al, 2007).  For every dollar spent on drug treatment in the community is estimated to return $18.52 in benefits to society” (JPI, 2008, p. 16).

Evaluating the alternatives using the decision matrix (DM).  The evaluation was conducted using six criteria (narrowed down) that were determined to be more socially beneficial.  Weights were assigned to these criteria based on the importance of policy outcomes of the alternatives.  The alternatives were scored based on their effectiveness at achieving policy outcomes (i.e., meet criteria).  The scores were then multiplied by weights to determine ratings per alternative, which were tallied to determine total rating.  The alternative with the highest total rating will be recommended (or at least will top the list of recommendations).

Score:  5= fully satisfy                     Weight: 5= High Importance            (Score X Weight= Rating)

3= substantially satisfy                     3=Medium Importance

1= partly satisfy                                  1= Low Importance

CBA Matrix of Most Desired Alternative vs. Status Quo. (Source of data: Justice Policy Institute)

Strategic Recommendations

The data analysis conducted in this policy brief show a preponderance of evidence (qualitative and quantitative, see DM and CBA) suggesting that the government should adopt Alternative 3, Treatment as an alternative to incarceration for low level non-violent drug offenders.  Alternative 3, is most effective at a) reducing violent crimes, b) reducing drug abuse, c) reducing overall harm to society, d) reducing overall cost, e) reducing incarceration, and f) improving wage gain among drug users.  Therefore, I recommend alternative 3 (i.e., treatment) for this committee.

Alternative 2, Regulation, is second most effective alternative but it can only work if alternative 1, Decriminalization, is adopted because it will eliminate the underground—criminal—economy for drugs.  The market for illicit drugs can then be regulated and taxed like any other commodity.  Behind this idea is the notion that demand drives supply.  As such, as long as there is a demand for drugs, criminal elements will continue to occupy the supply chain.  The concomitant effects are—as has been—violent crimes and overall harm to society (e.g., HIV and Hep-C infections).  Regulation and decriminalization will reduce and eliminate the need for violence as a means for guaranteeing procurements and supply.  Better still, regulation would buoy the tax revenue of the government and ameliorate the fiscal dilemma that it faces.

Therefore, in the order of effectiveness, this policy brief recommends the following as the alternatives to the current law enforcement approach:

• Regulation
• Decriminalization

It is my opinion that if these recommendations are adopted and implemented, the overall wellbeing of the society will improve.  There will be a significant harm reduction as a result of the illicit drug problem.

_________________________________

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