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Ending the Drug War Does Not Mean Legalization

Many disparage our drug policy as expensive, racially discriminatory, and ineffective. Critics point to a trillion dollars spent since 1971, an incarceration rate of African American men six times higher than that of their white counterparts, brutal cartel violence south of our border, and drug use that remains stubbornly high.

Given such a bleak panorama, it is unsurprising that the chorus for change has gained strength. This is a positive development, as there is no doubt that reforms are sorely needed. One of the most notable proposals is legalizing the production, sale, and consumption of narcotics. Proponents assert that moving the drug market out of the shadows would eliminate the policies that unfairly target our communities of color and undercut criminal profits from black markets. Yet despite being a provocative intellectual exercise, legalization is not a silver bullet against discriminatory law enforcement or organized crime.

Consider the following:

- Frequent binge drinkers account for roughly half of total alcohol sales, despite being less than 10% of the drinking population (only some 55 percent of all Americans).

- Some 90% of adult substance addicts started using before they were 18-years old. Around 1 in 4 adolescent users will go on to develop an addiction, as opposed to 1 in 25 users 21-years or older.

- A kilo of Colombian cocaine undergoes a 500-fold increase in its value from cultivation to retail sale in the United States.

There are many unknowns in a world of legalized drugs, but we can infer how it would operate. The money in the drug business, Mark Kleiman, Jonathan Caulkins and Angela Hawken assert, comes from addicts, not recreational consumers. And the opportune moment to foster addiction is when users’ brains are too underdeveloped to know better. Producers have every incentive to turn minors – cognitively wired to be more “influenced by their environment and more prone to impulsive behavior” – into the heavy users that drive the market for substances. This would not only be facilitated by drastically lower prices, but by the ability for sellers to advertise and promote their products without fear of reprisal. Perversely, a liberalized drug market stands to harm those who have already suffered the most from our drug policies. Legalization further shifts the burden of prevention from the state onto parents – who are already critical in deterring use – at a time when families of color have been severely damaged by our harsh incarceration policies.

In this light, it seems safe to assume that most Americans would not tolerate an unbridled drug market in which anyone can sell whatever to whomever. Yet this brings us back, more or less, to where we started. As Kleiman, Caulkins and Hawken point out, “any regulation or any tax strict enough to actually change behavior will face defiance and require enforcement.” Policymakers will still need to determine what behaviors are illegal (selling to minors, driving while high), and how to punish those who break these rules.

It is easy to imagine scenarios in which drugs are legal and regulated while discrimination and criminal enterprise continue. Organized crime already profits from thriving black markets in nominally “legal” industries such as mining, logging, pharmaceuticals, videos, software, hunting, and garments. Actors will always seek to fill those niches the state deems off-limits for the licit market, which could include not only minors, but also drugs that are particularly addictive and harmful. The distinction between lawful and unlawful activities could become more blurry and confused, leaving space for prejudice and subjectivity on the part of authorities to play a bigger role.

This is not to say that legalization should always be off the table in all cases – especially for drugs such as marijuana – rather that it is not a panacea for discrimination and crime. It is important to remember that the “drug war” is a symptom, not a cause, of deep-seated racial inequality. The unequal application of the death penalty is one such indicator of the systemic bias in our criminal justice apparatus. Further, illicit commerce has, and will likely always be, a fact of life. Our priority should be the fair application of all our laws, the humane treatment of those suffering from addiction, and rather than trying to eliminate all black markets, reducing their power to corrupt officials and harm innocents.

Deciding between the status quo and complete legalization is a false choice, and one that risks overshadowing the important steps that can be taken to improve the current situation.

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