War on Drugs

May 2013

The Longest War that America Lost: a Legal and Economic Analysis of the Inefficiency of Anti-Cannabis Legislation and Prosecution

Americans love to talk about their freedoms.  Liberty forever, justice forever, equality forever and freedom forever are the phrases on a current series of United States postal stamps under a picture of our nation’s flag.  Most Americans are quick to cite the Constitution and the Bill of Rights on a plethora of political and social issues whether it is abortion, gay marriage, or international affairs.  Our favorite Amendment is probably the First with widespread emphasis on the “freedom of speech” notion:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances (U.S. Const. amend. I).

I would venture to say that most Americans use the “freedom of speech” clause to encompass and justify everything.  After the Supreme Court ruled in Texas v. Johnson, 491 U.S. 397 (1989), one can even burn the American flag as an expression of their speech.

Another popular Amendment is the Fifth, which includes the text that “No person shall be… deprived of life, liberty, or property… nor shall private property be taken for public use” (U.S. Const. amend. V).

So with all these emphases on Americans’ personal freedoms, which we very much take pride in as we well should, why is it illegal to privately consume cannabis and why does the discussion of personal freedom dissipate when one broaches the subject?  It seems that every citizen or politician who supports the plant’s legalization is quickly labeled as a ‘pothead’ or ‘deadbeat hippie’ due to the overwhelming amount of propaganda produced in the past seventy-odd years.  Mainstream media fails to go beyond the stereotype and objectively explore the economic rationale, or lack thereof, behind legislation related to cannabis.  It is completely inefficient, from both legal and economic perspectives, for the United States government to maintain its ‘War on Drugs’ with respect to personal consumption and possession of cannabis. 

According to the World Health Organization, “cannabis is a generic term used to denote the several psychoactive preparations of the plant cannabis sativa. The major psychoactive constituent in cannabis is ∆-9 tetrahydrocannabinol (THC)” (World Health Organization).  The plant, which is native to Central and South Asia, though currently cultivated around the world, is used for its fibers to create hemp, its seed oil, medicinal purposes, and, of course, recreational consumption.  Most developed countries started passing legislation to outlaw cannabis use in the early 1900s, though medical consequences were unknown and remain inconclusive.  Chronic health effects of cannabis use, according to the World Health Organization, are primarily related to respiratory aggravation.  Reputable medical journals, such as the Lancet, always include caveats in their findings regarding the effects of cannabis use due to the lack of reliable study pools.  Many cannabis users also consume alcohol and/or tobacco, which taint the reliability of results.  Nonetheless, there is no concrete evidence to suggest that cannabis use causes birth defects, long-term mental incapacity, cancer, or any other physical ailments.  The American Medical Association even denounced the United States’ first prohibitive legislation in 1937 (Woodward).

The United States criminalized the possession and use of cannabis under Federal law in 1937 with the Marihuana Tax Act, Pub. 238, 75th Congress, 50 Stat. 551 (1937).  President Franklin D. Roosevelt passed this law in response to Western states’ complaints of Mexican laborers infringing on white employment opportunities and following the 1936 release of an anti-marijuana film called Reefer Madness.  The tax effectively prohibited the use of marijuana because the penalty for avoiding it was an exorbitant fine and long prison sentence.  President Richard Nixon declared a ‘War on Drugs’ in 1971 to gain voter support.  At the time, cannabis use was associated with social and political activism.  The strong voice of the rebellious, younger generation prompted the government’s aggressive response.  Politicians wanted to rally support with a tough stance on crime.  Spending on this war accelerated further under President Ronald Reagan in the 1980s.

States quickly followed suit by implementing severe consequences for cannabis use and distribution.   Though politicians claim high moral ground by ‘saving’ the population from drugs and drug-related crime, the practice is drastically different from the rhetoric. 

Over time, the ‘War on Drugs’ has developed into an attack on human rights.  In terms of legality, proponents of cannabis legalization question the constitutionality of the Federal government placing restrictions on States and individuals.  Even the government’s initial anti-cannabis law was found to be unconstitutional in the case Leary v. United States, 395 U.S. 6 (1969) as it violated Fifth Amendment rights.  However, the government responded with the Controlled Substances Act in 1970 to continue the prohibition of cannabis and other substances.  In the case Gonzales v. Raich, 545 U.S. 1 (2005) regarding medical marijuana and the Commerce Clause of the Constitution, Justice Sandra Day O’Connor argued that the concept of federalism reserves the right to prohibit drugs for the State.  Returning to the Bill of Rights, restricting the personal use of cannabis violates our Amendment rights on a number of premises:  freedom of religion and conscience and the right to due process.  Freedom of religion certainly attracted many immigrants to America.  We have the right to believe in whatever we want and are not required to formally associate with any particular religious organization.  Consuming marijuana could be part of one’s spiritual practice and the government has no right to interfere with an individual’s conscience.  A few cases in the United States have argued that cannabis prohibition is not compliant with our right to substantive due process.  There is no clear benefit to the State by restricting its constituents’ liberties in this respect.  Furthermore, it cannot be shown that one’s cannabis consumption harms another or infringes on others’ rights.

Last and most importantly, the ‘War on Drugs’ violates the Constitution’s fundamental principle of equality.  Not only is current legislation discriminate in which substances to target (alcohol and tobacco are absolutely proven to be more harmful to the individual and society than cannabis though they are obviously legal), but also it is severely discriminatory in the offenders it targets. 

Even though White and Black people use drugs at approximately equal rates, Black people are 10.1 times more likely to be sent to prison for drug offenses. Today, Black Americans represent 56 percent of those incarcerated for drug crimes, even though they comprise only 13 percent of the U.S. population (The House I Live In).

It is appalling to see this level of racial profiling and it causes a perpetual cycle of desperate crime and repeated imprisonment for generations and for entire communities. 

In addition to the moral implications of racist persecution, the entire structure is inefficient and perverse.  It begins with policemen who are incentivized to capture as many criminals as possible: no matter if it is for murder or selling a gram of marijuana.  This has resulted in swelling prison populations. 

In 2009 nearly 1.7 million people were arrested in the U.S. for nonviolent drug charges – more than half of those arrests were for marijuana possession alone. … Today, there are more people behind bars for nonviolent drug offenses than were incarcerated for all crimes, violent or otherwise, in 1970 (The House I Live In).

Then, there is the privatization of prison institutions.  Private firms capitalized on the ‘War on Drugs’ and the government’s inability to fund the exponential increase in prisoners.  There is a clear conflict of interest when policemen and prison operators are the ones benefiting from increased incarceration.  This is not a scenario where one can argue society as a whole benefits from a criminal’s imprisonment when the supposed crimes are nonviolent and involved personal possession.  “Since declaring a war on drugs 40 years ago, the United States has … arrested more than 45 million people, and racked up the highest incarceration rate in the world” (The House I Live In).

The legal ambiguity and unconstitutionality of the ‘War on Drugs’ continue to be debated in courtrooms across the country.  Fortunately, it seems the social tide is changing as well and modern Americans are less susceptible to anti-cannabis propaganda that has no evidentiary proof.

In the latest nationwide survey of 1,501 people polled in mid-March about legalizing marijuana, 52 percent of those surveyed favored making weed legal, and 72 percent said that efforts to enforce anti-marijuana laws bring more cost than benefit (Szalavitz).

The cost of the ‘War on Drugs’ makes the economic inefficiency of it glaringly obvious.  The House I Live In puts the cost of it since 1971 at more than $1 trillion.

In 2013 alone, President Barack Obama’s requested budget for National Drug Control is $25.6 billion:

This represents an increase of $415.3 million (1.6 percent) over the Fiscal Year 2012 enacted level of $25.2 billion.  The FY 2013 request includes two new Departments and two new bureaus to the National Drug Control Budget. … Over $9.4 billion in FY 2013 Federal resources are requested to support domestic law enforcement efforts, an increase of $61.4 million (0.7 percent) over the FY 2012 enacted level (Executive Office of the President of the United States).

Even the U.S. Forest Service used $15.3 million in resources during FY 2011 to eradicate approximately 2.3 million marijuana plants on National Forest Land (Executive Office of the President of the United States).  The NFS receives but a fraction of Federal resources in contrast to the Federal Judiciary.  The Federal Judiciary requested $1.2 billion for FY 2013, which represents a 2.8 percent increase over 2012 levels.  More than 80 percent of this $1.2 billion goes towards Court salaries and expenses.  When the division’s resources are evaluated by function, nearly 83 percent goes towards corrections and prosecutions, whereas the remainder is left for treatment and research and development (Executive Office of the President of the United States).  The sheer number of departments included under the National Drug Control Budget is staggering.  Despite all this investment in fighting drugs – in addition to having some of the harshest penalties – the United States still has the highest levels of cocaine and marijuana consumption in the world (Degenhardt et al.).  While most of these statistics reference overall illicit drug use, enforcement, and prosecution, one can easily deduce that the majority of these costs are allocated towards nonviolent cannabis violations based on the Federal Bureau of Investigations’ arrest records.  As previously mentioned, more than half of the 1.7 million nonviolent drug charges in 2009 were for marijuana possession (United States Department of Justice).

The United States could benefit economically from the legalization of cannabis by drastically reducing or eliminating enforcement costs and then benefiting from the associated tax revenue.  In 2010, the CATO Institute published a white paper on the Budgetary Impact of Ending Drug Prohibition.  The authors said that conservative estimates of legalizing and regulating drugs could boost the U.S. economy by $88 billion a year in law enforcement savings and new tax revenue.

The report also estimates that drug legalization would yield tax revenue of $46.7 billion annually, assuming legal drugs were taxed at rates comparable to those on alcohol and tobacco.  Approximately $8.7 billion of this revenue would result from legalization of marijuana and $38.0 billion from legalization of other drugs. … Legalized drugs would also generate tax revenue because the income earned by the producers would be subject to standard income and sales taxation (Miron and Waldock).

The report based its calculations on the aforementioned budget and arrest data that U.S. departments make available online.  The data is divided by drug type (marijuana, cocaine, heroine, and other drugs) and by State.

Washington and Colorado recently became the first states to decriminalize the possession of marijuana.  They are the only two states where cannabis is legal for recreational use, outside the medicinal context.  Based on 2008 statistics, Washington will save at least $98.9 million from expenditures that previously went towards cannabis prohibition while Colorado will save $74.0 million (Miron and Waldock).  Complete legalization of marijuana would lead to approximately $62.7 million and $47.3 million for Washington and Colorado, respectively, in revenue based on the States’ 2008 populations and usage figures (Miron and Waldock).  Every State, especially those facing a budget crisis like California, should seriously consider the savings that stand to be unlocked and the revenue to be generated from cannabis legalization. 

In the legal context, cannabis prohibition can be viewed as unconstitutional on several grounds.  There is no benefit to society from excessively incarcerating individuals for possession.  In fact, it is detrimental because it is profoundly expensive, perpetuates racial discrimination and it allows for the continued subjugation of America’s black population.  It promotes inequality and violates fundamental rights.  The United States’ incarceration levels and accompanying costs are shameful.  One need only to look at Federal and State expenditures of prohibition enforcement and current usage statistics to see the lack of progress and utter failure of the ‘War on Drugs.’  From an economic standpoint, States and the Federal government could realize substantial savings and subsequent profits from tax revenues associated with the legalization of cannabis.  Budget deficits at the State and national level are currently at the forefront of political debate.  It does not make sense for politicians to focus their cost-cutting initiatives on social welfare programs such as Medicaid and Medicare while they continue to overlook potential gains from cannabis legalization.  They should shift the emphasis from cost-cutting to opening up new revenue streams.  The legal, social, and economic benefits of cannabis legalization are clear.  What is not clear is why the United States continues to pour money into a losing war. 


Reference List:

Degenhardt L, Chiu W-T, Sampson N, Kessler RC, Anthony C, et al.  “Toward a Global View of Alcohol, Tobacco, Cannabis, and Cocaine Use: Findings from the WHO World Mental Health Surveys.”  PLoS Medicine April 2008.  Web.  4 April 2013.

Miron, Jeffrey and Waldock, Katherine.  “The Budgetary Impact of Ending Drug Prohibition.”  CATO Institute September 2010.  Web.  5 April 2013.

“Substance Abuse Facts:  Cannabis.”  World Health Organization.  WHO, 2013.  Web.  5 April 2013. 

Szalavitz, Maia.  “Majority of Americans Support Legalization of Marijuana.”  TIME Magazine 5 April 2013.  Print and web.  8 April 2013.

The House I Live In. Dir. Eugene Jarecki.  Abramorama Entertainment, 2012. Film.

U.S. Const. amend. I.

U.S. Const. amend. V.

United States.  Executive Office of the President of the United States.  United States Office of National Drug Control Policy.  National Drug Control Strategy:  FY 2013 Budget and Performance Summary.  April 2012.  Web.  6 April 2013.

United States.  United States Department of Justice.  Federal Bureau of Investigation.  Crime in the United States, 2009.  September 2010.  Web.  6 April 2013.

Woodward, William.  “Statement of Dr. William C. Woodward, Legislative Counsel, American Medical Association.”  United States House of Representatives Committee on Ways and Means 4 May 1937.  Web.  8 April 2013.