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Critics Scapegoat The Antidrug Laws; Advocates pushing for decriminalization of drug use blame the war on drugs for creating an 'incarceration nation.' But a hard look at the facts proves otherwise.
Byline: James R. McDonough, SPECIAL TO INSIGHT An oft-repeated mantra of both the liberal left and the far right is that antidrug laws do greater harm to society than illicit drugs. To defend this claim, they cite high rates of incarceration in the United States compared with more drug-tolerant societies. In this bumper-sticker vernacular, the drug war in the United States has created an "incarceration nation." But is it true? Certainly rates of incarceration in the United States are up (and crime is down). Do harsh antidrug laws drive up the numbers? Are the laws causing more harm than the drugs themselves? These are questions worth exploring, especially if their presumptive outcome is to change policy by, say, decriminalizing drug use. It is, after all, an end to the "drug war" that both the left and the right say they want. For example, William F. Buckley Jr. devoted the Feb. 26, 1996, issue of his conservative journal, National Review, to "the war on drugs," announcing that it was lost and bemoaning the overcrowding in state prisons, "notwithstanding that the national increase in prison space is threefold since we decided to wage hard war on drugs." James Gray, a California judge who speaks often on behalf of drug-decriminalization movements, devoted a major section of his book, Why Our Drug Laws Have Failed and What We Can Do About It, to what he calls the "prison-industrial complex." Ethan Nadelmann, executive director of the Drug Policy Alliance and perhaps the most unabashed of the "incarceration-nation" drumbeaters, says in his Web article, "Eroding Hope for a Kinder, Gentler Drug Policy," that he believes "criminal-justice measures to control drug use are mostly ineffective, counterproductive and unethical" and that administration "policies are really about punishing people for the sin of drug use." Nadelmann goes on to attack the drug-court system as well, which offers treatment in lieu of incarceration, as too coercive since it uses the threat of the criminal-justice system as an inducement to stay the course on treatment. In essence, the advocates of decriminalization of illegal drug use assert that incarceration rates are increasing because of bad drug laws resulting from an inane drug war, most of whose victims otherwise are well-behaved citizens who happen to use illegal drugs. But that infraction alone, they say, has led directly to their arrest, prosecution and imprisonment, thereby attacking the public purse by fostering growth of the prison population. Almost constant repetition of such assertions, unanswered by voices challenging their validity, has resulted in the decriminalizers gaining many converts. This in turn has begotten yet stronger assertions: the drug war is racist (because the prison population is overrepresentative of minorities); major illegal drugs are benign (ecstasy is "therapeutic," "medical" marijuana is a "wonder" drug, etc.); policies are polarized as "either-or" options ("treatment not criminalization") instead of a search for balance between demand reduction and other law-enforcement programs; harm reduction (read: needle distribution, heroin-shooting "clinics," "safe drug-use" brochures, etc.) becomes the only "responsible" public policy on drugs. But the central assertion, that drug laws are driving high prison populations, begins to break down upon closer scrutiny. Consider these numbers from the U.S. Bureau of Justice Statistics compilation, Felony Sentences in State Courts, 2000. Across the United States, state courts convicted about 924,700 adults of a felony in 2000. About one-third of these (34.6 percent) were drug offenders. Of the total number of convicted felons for all charges, about one-third (32 percent) went straight to probation. Some of these were rearrested for subsequent violations, as were other probationers from past years. In the end, 1,195,714 offenders entered state correctional facilities in 2000 for all categories of felonies. Of that number, 21 percent were drug offenders. Seventy-nine percent were imprisoned for other crimes. Therefore, about one-fifth of those entering state prisons in 2000 were there for drug offenses. But drug offenses comprise a category consisting of several different charges, of which possession is but one. Also included are trafficking, delivery and manufacturing. Of those incarcerated for drug offenses only about one-fourth (27 percent) were convicted of possession. One-fourth of one-fifth is 5 percent. Of that small amount, 13 percent were incarcerated for marijuana possession, meaning that in the end less than 1 percent (0.73 percent to be exact) of all those incarcerated in state-level facilities were there for marijuana possession. The data are similar in state after state. At the high end, the rates stay under 2 percent. Alabama's rate, for example, was 1.72 percent. At the low end, it falls under one-tenth of 1 percent. Maryland's rate, for example, was 0.08 percent. The rate among federal prisoners is 0.27 percent. If we consider cocaine possession, the rates of incarceration also remain low 2.75 percent for state inmates, 0.34 percent for federal. The data, in short, present a far different picture from the one projected by drug critics such as Nadelmann, who decries the wanton imprisonment of people whose offense is only the "sin of drug use." But what of those who are behind bars for possession? Are they not otherwise productive and contributing citizens whose only offense was smoking a joint? If Florida's data are reflective of the other states and there is no reason why they should not be the answer is no. In early 2003, Florida had a total of 88 inmates in state prison for possession of marijuana out of an overall population of 75,236 (0.12 percent). And of those 88, 40 (45 percent) had been in prison before. Of the remaining 48 who were in prison for the first time, 43 (90 percent) had prior probation sentences and the probation of all but four of them had been revoked at least once. Similar profiles appear for those in Florida prisons for cocaine possession (3.2 percent of the prison population in early 2003). They typically have extensive arrest histories for offenses ranging from burglary and prostitution to violent crimes such as armed robbery, sexual battery and aggravated assault. The overwhelming majority (70.2 percent) had been in prison before. Of those who had not been imprisoned previously, 90 percent had prior probation sentences and the supervision of 96 percent had been revoked at least once. The notion that harsh drug laws are to blame for filling prisons to the bursting point, therefore, appears to be dubious. Simultaneously, the proposition that drug laws do more harm than illegal drugs themselves falls into disarray even if we restrict our examination to the realm of drugs and crime, overlooking the extensive damage drug use causes to public health, family cohesion, the workplace and the community. Law-enforcement officers routinely report that the majority (i.e., between 60 and 80 percent) of crime stems from a relationship to substance abuse, a view that the bulk of crimes are committed by people who are high, seeking ways to obtain money to get high or both. These observations are supported by the data. The national Arrests and Drug Abuse Monitoring (ADAM) program reports on drugs present in arrestees at the time of their arrest in various urban areas around the country. In 2000, more than 70 percent of people arrested in Atlanta had drugs in their system; 80 percent in New York City; 75 percent in Chicago; and so on. For all cities measured, the median was 64.2 percent. The results are equally disturbing for cocaine use alone, according to Department of Justice statistics for 2000. In Atlanta, 49 percent of those arrested tested positive for cocaine; in New York City, 49 percent; in Chicago, 37 percent. Moreover, more than one-fifth of all arrestees reviewed in 35 cities around the nation had more than one drug in their bodies at the time of their arrest, according to the National Household Survey on Drug Abuse. If the correlation between drug use and criminality is high for adults, the correlation between drug use and misbehavior among youth is equally high. For children ages 12 to 17, delinquency and marijuana use show a proportional relationship. The greater the frequency of marijuana use, the greater the incidents of cutting class, stealing, physically attacking others and destroying other peoples' property. A youth who smoked marijuana six times in the last year was twice as likely physically to attack someone else than one who didn't smoke marijuana at all. A child who smoked marijuana six times a month in the last year was five times as likely to assault another than a child who did not smoke marijuana. Both delinquent and aggressive antisocial behavior were linked to marijuana use the more marijuana, the worse the behavior. Even more tragic is the suffering caused children by substance abuse within their families. A survey of state child-welfare agencies by the National Committee to Prevent Child Abuse found substance abuse to be one of the top two problems exhibited by 81 percent of families reported for child maltreatment. Additional research found that chemical dependence is present in one-half of the families involved in the child-welfare system. In a report entitled No Safe Haven: Children of Substance-Abusing Parents, the National Center on Addiction and Substance Abuse at Columbia University estimates that substance abuse causes or contributes to seven of 10 cases of child maltreatment and puts the federal, state and local bill for dealing with it at $10 billion. Are the drug laws, therefore, the root of a burgeoning prison population? And are the drug laws themselves a greater evil than the drugs themselves? The answer to the first question is a clear no. When we restricted our review to incarcerated felons, we found only about one-fifth of them were in prison for crimes related to drug laws. And even the miniscule proportion that were behind bars for possession seemed to have serious criminal records that indicate criminal behavior well beyond the possession charge for which they may have plea-bargained, and it is noteworthy that 95 percent of all convicted felons in state courts in 2000 pleaded guilty, according to the Bureau of Justice Statistics. The answer to the second question also is no. Looking only at crime and drugs, it is apparent that drugs drive crime. While it is true that no traffickers, dealers or manufacturers of drugs would be arrested if all drugs were legal, the same could be said of drunk drivers if drunken driving were legalized. Indeed, we could bring prison population down to zero if there were no laws at all. But we do have laws, and for good reason. When we look beyond the crime driven by drugs and factor in the lost human potential, the family tragedies, massive health costs, business losses and neighborhood blights instigated by drug use, it is clear that the greater harm is in the drugs themselves, not in the laws that curtail their use. James R. McDonough is the director of the Florida Office of Drug Control.
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