How We Lost the “War on Drugs”

There are three aspects to fighting any war: military (the need to punch lots of little holes in people and objects); political (the need to provide resources); and social (the need to convince people that the objectives are justified). The United States treats drug trafficking and consumption as a social problem, albeit with an occasional foray into the military or political realms. So we have massively funded (but notoriously ineffective) anti-drug advertising campaigns, sentencing guidelines for non-violent crimes that put some dictatorial regimes to shame, and (thankfully) an emphasis on counseling and treatment.

Even those social policies, however, are fundamentally flawed. I’m going to use two of the most egregious examples to demonstrate (and remonstrate). First, mandatory minimum sentencing. At best, this is a case of needless government intervention that disrupts a tradition of jurisprudence dating back to the Magna Carta; at worst it’s good old-fashioned racism. By forcing judges to impose harsher punishments for chewing a plant than for, say, stealing a car, sentencing guidelines require our elected and appointed legal professionals, by law, to set aside logic in certain situations. And that’s pretty much the definition of a “slippery slope”. Judicial discretion is one of the bywords of a free society, exemplified by Judge Gregory Presnell‘s decision in Avista Management, Inc. v. Waussau Underwriters Insurance Company:

Upon consideration of the Motion – the latest in a series of Gordian knots that the parties have been unable to untangle without enlisting the assistance of the federal courts – it is ORDERED that said Motion is DENIED. Instead, the Court will fashion a new form of alternative dispute resolution, to wit: at 4:00 P.M. on Friday, June 30, 2006, counsel shall convene at a neutral site agreeable to both parties. If counsel cannot agree on a neutral site, they shall meet on the front steps of the Sam M. Gibbons U.S. Courthouse, 801 North Florida Ave., Tampa, Florida 33602. Each lawyer shall be entitled to be accompanied by one paralegal who shall act as an attendant and witness. At that time and location, counsel shall engage in one (1) game of “rock, paper, scissors.” The winner of this engagement shall be entitled to select the location for the 30(b)(6) deposition to be held somewhere in Hillsborough County during the period July 11-12, 2006.

The second example is the entire category of crimes known as “possession with intent to sell”. The legal concept of intent is viable and well established; it provides the distinction between murder and manslaughter, for example. But burden of proof in such a case rests on the prosecution. Contemporary drug laws are the equivalent of charging someone who owns a sports car with “intent to speed”. There is a presupposition of action which leaves the accused with no recourse. It is quite literally the presumption of guilt, without means of proving innocence.

Let’s get one thing straight: the War on Drugs, were we to commit to actually fighting it, could be won quickly, cheaply, and with minimal losses, certainly when compared to the “War on Terror”. Militarily, 24-hour combat air patrols of South American and Asian growing regions, employing napalm strikes as needed, would essentially eliminate global supply in a matter of days. Politically, our troops would need to be supported at a level commensurate with any other small-scale but high-intensity combat operation. For FY2009, the Office of National Drug Control Policy will oversee a budget of about $14 billion. That’s at least an order of magnitude less than Americans will spend on illegal drugs this year. We fund both sides of this war, simultaneously, but we’re giving the other guys ten times as much money. Socially, we would have to acknowledge that even mandatory minimums don’t provide a deterrent. Treating drug users as non-uniformed enemy combatants would allow them to be tried as spies and executed rather than imprisoned.

The problem is that societally, there is no will to do any of those things. So we muddle along; politicians pay lip service to the “war” without actually laying out a strategy for winning it, in an effort to court the votes of both law enforcement unions and their liberal constituents; and the 800-pound gorilla in the room, the prescription drug industry whose products kill four times as many people as all illegal drugs combined, looks down on us and laughs. So yes, there is a war being waged in this country, by our governments and our industries; its victims are not coca farmers or cigarette boat drivers or even San Diego surfers, but taxpayers and prisoners and ordinary citizens like you and me who yearn to breathe free – even if we would like to breathe smoke.