This paper will discuss the effect of legalizing possession of all drugs on the criminal justice system. This paper will begin with a brief history of the modern War on Drugs to establish why drug possession should not be a criminal matter. Discussion of the impact of legalization will primarily focus on reduction in caseload and the resulting benefits.
History
The modern War on Drugs began during the Nixon presidency with the passage of the Controlled Substances Act of 1970 (“CSA”), which established federal regulatory power over the manufacture, importation, possession, use, and distribution of certain substances.[1] The CSA was ostensibly a public health response to the growing heroin epidemic in the mid-1960s.[2] In 1973, Nixon created the Drug Enforcement Agency (“DEA”) to carry out enforcement of the CSA.[3]
The War on Drugs expanded into a system of mass incarceration under the Comprehensive Crime Control Act of 1984, which increased criminal penalties associated with cannabis possession and established mandatory minimum sentences.[4] From 1980 to 1997, “the number of [individuals incarcerated] for nonviolent drug law offenses [jumped] from 50,000 . . . to over 400,000.”[5] “By 1991, the United States had surpassed the former Soviet Union and South Africa as having the largest prison population in the world.”[6] The racial impact from the ‘Tough on Crime’ approach reared its ugly head as “the sentences of black inmates were 41% longer than that of whites.”[7]
Most critically, the War on Drugs has been ineffective in deterring drug use.[8] In 2000, law enforcement seized over 4.4 million tablets of ecstasy, an increase from 350,000 tablets just two years prior.[9] From 2010 to 2015, the lifetime prevalence of 8th graders who have used illicit drugs consistently hovered around 20%.[10] Over that same period, the number of drug-induced deaths increased from 40,393 to 55,403.[11]
In light of the racial bias stemming from the War on Drugs as well as its failure to achieve its supposed intended purpose, drug possession is a worthy candidate for exploration into forms of treatment outside of the criminal realm.[12]
Legalization v. Decriminalization
For the purposes of this paper, assume that legalization means that the possession, sale, and manufacturing of all drugs would be regulated similarly to alcohol or cigarettes. At the outset, it is important to note why legalization is preferable to decriminalization. Decriminalization of drug possession simply means that possession is not a criminal offense.[13] In 2001, Portugal decriminalized all drugs, and the public health benefits have been palpable.[14] Under a system of decriminalization, however, the manufacturing and sale of drugs is still criminal.[15] As a result, the drug market is still propped up and supplied by drug cartels, just as it is in a system of prohibition.[16] Legalization goes further than decriminalization by legalizing drug production.[17] Allowing companies to manufacture drugs removes the viability of the black market drug trade, such as in Mexico where one cartel alone “had annual earnings calculated to be as high as $3 billion.”[18] In 2018, the DEA spent over $445 million on international enforcement to decrease the impact of these cartels in the United States.[19] Legalization treats the cause of the disease, and the consequent reduction in symptoms would decrease the need for these yearly international enforcement expenditures.
Court Decluttering
In 2017, there were 1,632,921 drug related violations in the U.S., of which 85.4% were for possession; an average of 3,820 possession arrests per day.[20] Under a system of legalization, American courts would no longer be inundated with this entire class of offense. The benefits of legalization on the courts are multifaceted: for the drug possessor, who is no longer a victim of the fruitless War on Drugs; for the judge, who enjoys greater flexibility with a decluttered docket; and most importantly, for the public defender, who can take advantage of the much-needed decrease in workload to provide better counsel to clients.[21]
In 2016, Louisiana had an estimated annual workload of 147,220 total cases to be divided among its 363 public defenders.[22] This meant that “the Louisiana public defense system [could only] handle 21 percent of [its] workload in compliance with [state] guidelines.”[23]
“Unsurprisingly, excessive workloads diminish the quality of legal representation.”[24] With such an enormous caseload, public defenders do not have the time available to conduct basic defense tasks necessary for a trial, creating an incentive for guilty pleas.[25] Guilty pleas based on time constraint rather than merit render “an ethical and constitutional plea bargain . . . impossible.”[26]
Given the sheer number of drug arrests, legalization would likely drastically reduce the public defense system’s case load.[27] With this caseload reduction, public defenders would be able to work towards closing the gap between the actual and necessary amount of time devoted to each client.[28] With more time to evaluate each case, public defenders can more effectively assess the appropriateness of a plea deal on the merits, rather than time constraints.[29] The increased legitimacy and efficiency of the public defense system resulting from legalization will likely lead to broader indirect benefits for all public defense clients, no matter what crime they are accused of.[30]
An argument against legalization posits that these reductions in public defense caseload would be offset by an increase in crime, such as petty crime and driving under the influence, due to legalization.[31] This line of reasoning rests on the assumption that if there are no criminal penalties for drug possession or use, then the number of drug users will increase.[32] With more people using drugs, more people will become addicts, who are more prone to committing crimes.[33]
The assumption that the absence of criminal sanctions entails more people using drugs is unsound, as under Portugal’s system of decriminalization, “in almost every category of drug, and for drug usage overall, the lifetime prevalence rates . . . were higher” prior to decriminalization.[34] Cocaine usage in Portugal was significantly lower than usage in the United States, which was head and shoulders above the rest of the world.[35] The heroin usage rate in Portugal from 1999 to 2005 actually decreased from 2.5% to 1.8% among those in the 16-18 age group.[36] Decreased drug use does not necessarily follow from from punitive state response, just as increased drug use does not necessarily follow from rehabilitative state response.[37] If the pool of drug users remains consistent after legalization, then pool of criminal drug users would likely remain consistent as well.
Still, even assuming that the number of drug addicts would increase post-legalization, leading to an increase in the number of petty crime and driving under the influence (“DUI”) cases, these cases differ quantitatively and qualitatively from possession and crimes currently associated with the black market for drugs.
Quantitatively, the increased caseload for petty crime and driving under the influence would still be significantly less the number of possession charges the system currently deals with.[38] Further, under the current system of prohibition, courts and society at large must deal with violent crimes associated with the black market for narcotics: in 2016, 11.2% of all federal prisoners held in state correctional facilities were incarcerated for drug trafficking and drug offenses other than possession.[39] Under a system of legalization, the profitability of the black market is greatly reduced, which would likely result in these arguably more serious crimes becoming less prevalent and further decreasing the caseload related to drugs despite a potential increase in petty crime and driving under the influence cases.[40]
Qualitatively, DUIs directly present significant and real risks of harm to other members of society in a way that drug possession does not. “In 2016, 10,497 people died in alcohol-impaired driving crashes, accounting for 28% of all traffic-related deaths in the United States.”[41] Given the increased culpability and blameworthiness of these crimes, it is not a waste of the public defense system resources to criminalize DUI and bear the associated costs of doing so; rather, these are precisely the crimes which fall under the purview of the criminal justice system.[42]
In conclusion, the War on Drugs has disproportionately impacted minorities[43] and has not effectively reduced drug consumption and usage.[44] In light of this, the United States should take steps to legalize drug possession and emulate the success of other nations who have treated drug use as public health matter, instead a criminal one.[45] Further, the benefits of legalization extend beyond drug users.[46] Globally, legalization helps to curtail the influence of cartels.[47] Domestically, legalization frees up the criminal justice system, permitting more efficient and legitimate legal representation for all individuals.[48]
[1] See Controlled Substances Act of 1970, 21 U.S.C. § 811.
[2] See Pub. Broadcasting Serv., Interview Dr. Robert DuPont, FRONTLINE: DRUG WARS, https://www.pbs.org/wgbh/pages/frontline/shows/drugs/interviews/dupont.html (last visited Mar. 20, 2020).
[3] See History, DRUG ENF’T AGENCY, dea.gov/history (last visited Jun. 29, 2020).
[4] See Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, 98 Stat. 1976.
[5] A Brief History of the Drug War, DRUG POL’Y ALL., https://www.drugpolicy.org/issues/brief-history-drug-war, (last visited Mar. 23, 2020).
[6] Charles Ogletree, Getting Tough on Crime: Does It Work? 38 Boston B. J. 9, 27 (1994).
[7] Id.
[8] See Ross C. Anderson, We Are All Casualties of Friendly Fire in the War on Drugs, 13 Utah B.J. 10, 11 (2000).
[9] Id. at 11.
[10] See OFFICE OF NAT’L DRUG CONTROL POL’Y, NATIONAL DRUG CONTROL STRATEGY: PERFORMANCE REPORTING SYSTEM REPORT 27 (2016); What is Prevalence? NAT’L INST. MENTAL HEALTH (Nov. 2017), https://www.nimh.nih.gov/health/statistics/what-is-prevalence.shtml (explaining that “[l]ifetime prevalence is the proportion of a population who, at some point in life has ever had the characteristic.”).
[11] Id. at 12.
[12] See Anderson, supra note 8, at 11.
[13] See GLENN GREENWALD, DRUG DECRIMINALIZATION IN PORTUGAL: LESSONS FOR CREATING FAIR AND SUCCESSFUL DRUG POLICIES 2 (2009), https://www.cato.org/publications/white-paper/drug-decriminalization-portugal-lessons-creating-fair-successful-drug-policies.
[14] See id. at 14-15 (explaining that since decriminalization, Portugal has experienced a slight decline in drug use, a significant decline in drug related pathologies such as HIV, and a substantial increase in use of treatment programs).
[15] See id. at 2.
[16] See German Lopez, What People Get Wrong About Prohibition, VOX (Oct. 19, 2015), https://www.vox.com/2015/10/19/9566935/prohibition-myths-misconceptions-facts.
[17] See GREENWALD, supra note 13, at 2.
[18] JUNE S. BEITTEL, CONG. RSCH. SERV., R41576, MEXICO: ORGANIZED CRIME AND DRUG TRAFFICKING ORGANIZATIONS 19 (2019).
[19] DRUG ENF’T ADMIN., FY 2019 BUDGET REQUEST, 4 (2018).
[20] See 2017 Crime in the United States: Persons Arrested, FED. BUREAU INVESTIGATION: UNIFORM CRIME REPORTING, https://ucr.fbi.gov/crime-in-the-u.s/2017/crime-in-the-u.s.-2017/topic-pages/persons-arrested (last visited Aug. 15, 2020).
[21] See Lisa C. Wood et al., Meet-and-Plead: The Inevitable Consequence of Crushing Defender Workloads, 42 LITIG. 20, 23 (2016).
[22] See A.B.A. & POSTLETHWAITE & NETTERVILLE, THE LOUISIANA PROJECT: A STUDY OF THE LOUISIANA DEFENDER SYSTEM AND ATTORNEY WORKLOAD STANDARDS 2 (2017).
[23] Id.
[24] Wood et al., supra note 21, at 23.
[25] See id.
[26] Id.
[27] See id. at 26.
[28] See id.
[29] See id.
[30] See id.
[31] See Paul Stares, Drug Legalization?: Time for a Real Debate, BROOKINGS INST. (Mar. 1, 1996), https://www.brookings.edu/articles/drug-legalization-time-for-a-real-debate/.
[32] See id.
[33] See id.
[34] GREENWALD, supra note 13, at 14-15 (emphasis added).
[35] See id. at 22-24.
[36] Id. at 14.
[37] See Stares, supra note 31.
[38] See 2016 Crime in the United States: Table 18, FED. BUREAU INVESTIGATION: UNIFORM CRIME REPORTING, https://ucr.fbi.gov/crime-in-the-u.s/2016/crime-in-the-u.s.-2016/topic-pages/tables/table-18 (last visited Aug. 15 2020) (illustrating that arrests for drug abuse violations are nearly eight times as high as arrests for burglary – a petty crime that is often related to drugs).
[39] JENNIFER BRONSON & E. ANN CARSON, BUREAU OF JUSTICE STATISTICS, NCJ 252156, PRISONERS IN 2017 21 (2019).
[40] See Lopez, supra note 16.
[41] Impaired Driving: Get the Facts, CENTERS FOR DISEASE CONTROL AND PREVENTION (Aug. 24, 2020, 12:00 AM), https://www.cdc.gov/motorvehiclesafety/impaired_driving/impaired-drv_factsheet.html.
[42] See Janine Geske, Achieving the Goals of Criminal Justice: A Role for Restorative Justice, 30 Quinnipiac L. Rev. 527, 530-31 (2012).
[43] See Anderson, supra note 8, at 11.
[44] See id.
[45] See GREENWALD, supra note 13, at 14-15.
[46] See Stares, supra note 31.
[47] See id.
[48] See Wood et al., supra note 21, at 23, 26; see also Lopez, supra note 16.
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