Drug sentencing another misstep for criminal justice

5 April 2017
Justin Guglielmetti, Apprentice Editor

Criminalizing low-level drugs like marijuana is ineffective at stopping their daily use and doesn’t follow the powers laid out in the Constitution.

Last week, the Tulsa World reported on two local women — Damita Price and Sheila Royal — currently serving life sentences without the possibility of parole for drug offenses. Neither Price nor Royal has ever been convicted of a violent crime, yet both face the possibility of dying in prison due to their repeated drug-trafficking offenses. They are just two of the 57 inmates currently serving life sentences in Oklahoma for non-violent, drug-related crimes. Is this what justice should look like in America?

First things first, if anybody ever offers you a definitive answer to that question, they are probably lying, delusional or some combination of the two. Drug use is a serious and incredibly complicated issue to legislate, and every country in the world grapples with the balancing act between allowance for individual liberty and protecting the public good.

About the only thing settled on this subject is that so-called “hard drugs,” those substances that are both highly addictive and offer the potential for substantial physical harm such as heroin, crack cocaine, and methamphetamine, are unequivocally bad for you. But even then there is a great deal of debate as to how this fact should be addressed. Do you criminalize the drugs and institute harsh prison sentences, or treat these dangerous addictions as a public health issue? The arguments for both sides could fill a library.

With all this subjectivity, I am not going to use this space to advocate for a specific policy that I think our country should take regarding drugs, because believe it or not, I don’t believe a 20-year-old accounting major is qualified to speak to the minutiae of this topic. As many people who conduct agenda-driven research are wont to do, I could cite for you Portugal’s heralded decriminalization policy dating back to 2001, in which they removed criminal offenses for any and all drug use, replaced them with fines and mandatory counseling, and have subsequently seen their overdose death rates fall to less than a fifth of those in the rest of the EU.

Despite claims from people like Dr. Joao Goulao, the leading figure behind decriminalization in Portugal, who said “it’s very difficult to identify a causal link between decriminalization by itself and the positive tendencies we have seen,” the jury is still out on the effect of the policies in countries that followed Portugal’s lead (the Netherlands, Italy, Spain), as well as the feasibility of the policy in less similar countries. Still, there is plenty of room left to criticize America’s drug policies and come up with at least a general idea of how we should move forward, starting with the constitutionality of any and all anti-drug legislation.

The most notorious example for disastrous anti-drug legislation in this country is of course Prohibition, when alcohol was criminalized from 1920 to 1933 in response to a populist movement spearheaded by rural Protestants and various progressive groups. Prohibition was a monumental disaster, failing to achieve its intended purpose in significantly curtailing alcohol consumption (which was deemed a moral transgression at the time). It simultaneously created a market ripe to be taken over by an emerging criminal enterprise, the Italian-American mafia. Many parallels can be drawn between Prohibition and the modern drug war, dating back roughly to Nixon’s presidency: chief amongst them the stable rate of drug usage and the rise of organized crime (this time, Mexican cartels).

However, there is one important distinction to be made. In the case of Prohibition — such a radical infringement on individual liberty wherein Congress took to regulating what a person could decide to put into their own bodies for their personal enjoyment — actually required a Constitutional amendment to be deemed legal since there is nothing in article 1, section 8 of the Constitution (the Powers of Congress) that gives the federal legislature such authority.

Another amendment was subsequently required to repeal the first. No such amendment has ever been made to the Constitution regarding laws about drug usage, which seems to indicate that federal legislation regarding drug usage may be a blatant overstep of congressional jurisdiction.

Since Congress’ authority in this area has rarely been questioned, even by anti-drug war advocates, I would presume that most people look to either the first or third clauses of article 1, section 8 for their justification. The latter enumerates the power of Congress to regulate commerce between states, foreign nations and “Indian tribes,” which would thus cover drug trafficking across state lines.

For individual drug usage, however, one must take certain liberties with the wording of the former clause, which describes the power to “provide for the…general Welfare of the United States.” Therefore, as long as one can point to drug usage as a detriment to the welfare of the nation as a whole, anti-drug legislation may fall under the parameters of the Constitution. The only problem is that the extent to which nationwide welfare is affected is a matter of hot dispute.

I’ve already stated that it’s a matter of unequivocal fact that certain highly addictive and dangerous drugs are detrimental to society. But what about so-called recreational drugs like marijuana, ecstasy, or LSD? None are considered particularly detrimental to one’s long-term health, especially when compared to some already-legal drugs such as tobacco or alcohol, which together are responsible for the deaths of 8.5 million people a year, according to the World Health Organization. Is it consistent with the principle of maintaining the public good that less harmful drugs be heavily penalized while deadlier ones remain legal?

Even in the case of clearly dangerous and addictive hard drugs the case is more muddled than it first appears, as there are all sorts of negative externalities created by their illegality. Renowned economist Milton Friedman, a Nobel laureate, estimates that criminalization results in the death of over 10,000 people a year, as well as higher incarceration rates, ineffective pain management and a disproportionately adverse effect on the African-American community (it’s worth noting that I don’t see any inconsistency with the Constitution in creating laws regulating drug treatment, as it is bereft of the externalities of criminalization).

With all this ineffectiveness and hypocrisy, it might still be argued that at the very least the intentions of drug laws are pure — to keep substances that were at one point believed to be harmful out of the hands of the public — but even that has fallen into some dispute as of late. Just last year, a 22-year-old interview with John Ehrlichman, one of Richard Nixon’s top aides and a key figure in the Watergate scandal, revealed that associating hippies and Black Americans with certain drugs and then criminalizing said drugs (marijuana and heroin respectively) could be used as a means of destabilizing their communities.

Nobody is in any position to say if this was the true intention of the president, as it contradicts Nixon’s official stance from the time, but it lends credence to suspicions that have existed for decades. All of this seems enough for me to say that simply on Constitutional principle, the federal government should remove itself from the business of drug criminalization, at least until it approaches the situation with enough resolve to look at a Constitutional amendment.

Admittedly, this is a stance that I do not feel entirely comfortable with, a sentiment that I believe is still probably widely felt. It’s certainly not one that would make my parents particularly proud. There are legitimate fears I have with decriminalizing hard drugs, most significantly their normalization, which would effectively remove all possibility of ever eradicating their recreational usage. Look at Prohibition. If we are being honest, it would be an objectively good thing if alcohol were illegal and there existed a mass social stigma against drinking. You could say goodbye to all those tragic drunk driving deaths, stupendous health care costs and broken homes.

But the reason Prohibition was such a disaster, and why any future attempts to ban alcohol will likewise fail, was that it was already an integral part of the daily lives of millions of Americans. These for the most parts weren’t addicts but simply the multitudes of people who couldn’t imagine their lives without it. We should all be wary of the possibility of this one day being used to describe a drug like cocaine. However, given a lack of evidence that this dystopian future would result, as well as respect for the enumerated powers and intentions of the United States Constitution, a decriminalization policy seems to me the sensible course of action at this time.