Scaling Back the Drug War

By Robert VerBruggen

Thursday, December 17, 2020

 

The War on Drugs is fought less vigorously by the day.

 

As Kevin D. Williamson discusses elsewhere (“The Marijuana Majority”), several states legalized recreational marijuana in November, bringing the total number of states to have done so to 15. Oregon, where pot was already legal, further legalized the therapeutic use of “magic” mushrooms — and decriminalized the use of drugs across the board. Those caught with illegal drugs for personal use won’t face criminal penalties in the Beaver State, though they can still be fined $100 or choose treatment instead.

 

Especially on pot, these shifts reflect deep changes in public opinion. In the late 1980s, fewer than one-fifth of adults wanted marijuana to be legal, according to the General Social Survey. That proportion began to rise in the 1990s, and in 2018 it stood at three-fifths. A Gallup poll this year put it at a record 68 percent. Oregon’s effort on harder drugs passed via referendum with 58 percent of the vote, and the magic-mushroom proposal won 56 percent.

 

This is a good development for both federalism and drug policy. States are experimenting with new ways of handling this social problem, taking different approaches to the trade-offs among drug abuse, personal freedom, incarceration, the violence associated with the illicit drug trade, and tax revenue from legal drug sales. In the years ahead, three things should happen: The federal government should clear the way for this to continue; states should move slowly, carefully considering the harms that overly hasty drug legalization can do; and researchers should study these experiments to see what effects they have.

 

Awkwardly, amid this revolution at the state level, federal law has not changed. Marijuana (to say nothing of the harder stuff) is still considered a “Schedule I” controlled substance, meaning that it is banned even for medical purposes. Federal authorities have declined to enforce this prohibition in states that have legalized pot, but marijuana businesses nonetheless operate in a murky gray area where some services (such as banking) are difficult to arrange and there’s an ever-present possibility of federal enforcement. A couple of years back, for example, the Trump administration flirted with enforcing the federal law even in states whose own laws contradict it.

 

But change is on the horizon even here. In December, the House passed a bill to end federal pot prohibition. The GOP-controlled Senate hasn’t followed suit, but given the sheer weight of popular opinion and the uncomfortable conflict between state and federal law, something along these lines has to pass eventually. At minimum, the feds should retreat to their constitutionally prescribed role of policing interstate and international commerce, leaving the states to handle what happens purely inside their borders. The Supreme Court has interpreted the Constitution’s interstate-commerce clause broadly enough that Congress can regulate just about any commercial activity and get away with it in court, but that is clearly not a suitable approach here.

 

However the specifics work out, pot policy will ultimately be set at the state level, and public opinion will weigh strongly in favor of legalization. Less punitive approaches to other drugs may also be in the offing, especially if Oregon’s experiment proves successful, reducing incarceration and boosting treatment without leading to a surge in hard-drug use. But there remain good reasons for states to proceed cautiously.

 

Let’s start with the fact that, yes, more people will probably use drugs if they’re made fully legal or readily available. The current wave of pot legalizations provides a good natural experiment, and a study in 2019 found that when states legalized recreational marijuana, both overall pot use and cannabis-use disorder rose substantially in them. One way of thinking about it is that while legalization doesn’t turn a huge share of the population into pot smokers, it markedly increases the size of the small share who are: In the survey the authors analyzed, “the proportion of respondents aged 12 to 17 years reporting cannabis use disorder increased from 2.18% to 2.72%, while the proportion of respondents 26 years or older reporting frequent marijuana use increased from 2.13% to 2.62% and those with cannabis use disorder, from 0.90% to 1.23%.” Other studies have found increases in marijuana-related hospital admissions and car accidents. There will be a lot more research on this in the coming years, and the findings may evolve, but this is both concerning and in line with common sense.

 

The roots of the opioid epidemic also stem from something closely resembling drug legalization. In the 1990s, new prescription opioids debuted and quickly made their way to illicit users. “Pill mills” prescribed them to anyone willing to pay, and doctors often handed out unnecessarily large amounts after surgeries. The results of making professionally manufactured hard drugs easily available have been terrifying: The resulting epidemic claims tens of thousands of lives each year, and it has proven impossible to put the genie back into the bottle. Prescriptions have come down in recent years, and many opioid pills were made uncrushable to deter abuse, but individuals hooked on pain pills often transitioned to chemically similar illegal drugs, particularly heroin.

 

Obviously, there’s a big difference in health risk between marijuana and heroin. Fatal pot overdoses are essentially unheard-of. Yet in designing their legal regimes for weed, states should pay attention to the very real risks that even marijuana can pose. The aforementioned cannabis-use disorder is recognized in the current Diagnostic and Statistical Manual of Medical Disorders (DSM-5) and involves all the usual hallmarks of addiction, including cravings, withdrawal, using more than intended, and putting the drug before the basics of life, such as job performance and human relationships. There are also worrying signs that marijuana use can cause schizophrenia, though the science on this is less than clear.

 

I am libertarian enough that, despite these risks, I’d legalize marijuana more or less completely and let adults make their own decisions. But for states that place greater emphasis on the downsides, there are options in between the status quo and full legalization. States can heavily tax weed, or restrict its distribution to nonprofit entities that are highly regulated, or limit its potency, or ban specific cannabis products that appeal to minors, such as gummy bears and brownies.

 

On harder drugs, meanwhile, Oregon may point the way forward — and the state’s approach is not quite as radical as it looks. Despite the popular perception that prisons are full of people who got caught with tiny baggies of drugs, both the law and public opinion have always drawn a bright line between those who deal drugs, especially in large quantities, and those who use them. Drug users are often arrested but rarely serve long sentences for their crimes: Virtually no federal drug prisoners, and only about a quarter of state drug prisoners, are serving time for mere possession. (Drug prisoners in general, meanwhile, account for about a fifth of all prisoners at both levels combined: a big chunk but far from the bulk of American incarceration.)

 

Making the dealer–user line even brighter is not a bad idea. Get drug users the help they need or let them off with a modest fine, but continue taking steps to reduce the supply of hard drugs from dealers, especially heavy traffickers.

 

And then study what happens. We are entering uncharted territory here, and we don’t know what will work best. We don’t know precisely how much drug abuse will increase, and how much arrests, incarceration, and drug-war violence will fall, for each type of reform states will try. Perhaps the most important thing for states will be a willingness to adopt successful policies from elsewhere and abandon failed experiments they thought sounded promising.

 

We do not need to keep prosecuting people over pot, and there’s plenty of room to scale back the war on other drugs too. But we also do not need a repeat of the opioid epidemic.