The war on drugs is perhaps the longest and least successful war waged by the United States. One of the main problems is, as Walt Kelley said, “we have met the enemy and he is us.” Which is to say that the war on drugs is largely a civil war and most of the casualties are Americans.
While some regard the war on drugs as a battle of virtue against vice, there is a compelling case that many of the drug laws were motivated by racism. For example, San Francisco’s 1875 law against opium was apparently based on the fear that Chinese men were luring white women into opium dens so as to have sex with them. This was followed by laws against cocaine (motivated largely by racism towards blacks) and then by laws against marijuana (motivated largely by biases against Mexicans). The war on drugs proper began in 1971 with Richard Nixon’s declaration and following presidents followed suit with varying degrees of enthusiasm. President Bill Clinton, eager to appear tough on crime, escalated the war in a manner that has led directly to the present problems of mass incarceration and the disproportionate incarceration of minorities.
Some might argue that the drug laws do not specifically target minorities. After all, as one might point out, it is no less illegal for a white person to use cocaine than it is for a black person. While this is a point worth considering, the application of the laws and the approach to their enforcement is often strongly influenced by race. As one example, minority communities are policed more aggressively than white communities—despite the fact that blacks are no more likely to use drugs than whites (and whites are apparently more likely to deal drugs). This is one of the causes of the disproportionate incarceration rates. As another example, sentencing is often also disproportional, with the difference in sentences between crack and powder cocaine serving as an excellent illustration.
One counter to these assertions is to claim that minorities commit drug crimes at a higher rate than whites and thus the arrest rate justly reflects this. The challenge is to support this claim with evidence. In some cases, the “evidence” offered is the arrest rate itself, creating a circle of “reasoning”: minorities have a higher arrest rate because they commit crimes at a higher rate and this is proven because minorities have a higher arrest rate. Unfortunately, for some the crime rates are a matter of ideology and hence they perceive the matter through that lens and this makes discussing the issue challenging. While an analysis of the data provides what seems to be objective evidence of disparity, there are those who interpret the data rather differently. My own view is that the disparity does exist and is shown by the statistical data. Naturally, those who disagree might be inclined to claim that my view is due to ideology as well.
What is not in dispute is that the war on drugs has resulted in a mass incarceration thus making the United States the world leader in terms of the percentage of its population behind bars. While the left has long been concerned with the incarceration rate, conservatives have also begun to express worries about this matter and the war on drugs. But what seems to have caused a significant shift in attitudes is the opioid epidemic in America. While the American middle and upper classes have used drugs throughout American history, they have not been the main focus of law enforcement. This has enabled the maintenance of the illusion (or delusion) that drugs are a problem mainly for the poor and minorities. Due to the attention paid to the opioid caused deaths, this illusion has been dispelled. As such, it is now recognized that there is a drug epidemic sweeping white America—and not just poor whites, but whites of the middle and upper classes.
Recognition of the whiter and wealthier nature of the current epidemic seems to have motivated a radical shift in how drug use is being policed—at least when in regards to certain classes of people. This epidemic is being treated by many as a health crisis and not a crime wave. Instead of focusing on arresting and incarcerating people, considerable effort has been focused on helping people overcome their addiction and to mitigate the harms caused by this addiction. This is not to say that no one previously regarded the drug problem as a health issue, just that this does represent a significant change in the mainstream view.
While this change in attitude centered on opioids has had some trickle-down effect on other drugs, this change has yet to spread broadly. There is still fairly aggressive policing aimed at other drugs (with the obvious exception of marijuana in states that have legalized the drug) despite the fact that the logic that casts opioid addiction as a health issue should also entail that other forms of drug addiction are also health issues. However, there is some hope that this approach will spread to drug use in general.
There are compelling reasons to accept this shift. The first is that the approach of criminalizing drugs, whatever its actual intent, has failed to address the problem of drug use. As such, there is a clear need for a change and the health angle seems a sensible approach to test. The second is to use Mill’s principle of harm: the use of drugs itself hurts the drug user directly, thus people should have the liberty to use drugs—even though they are a poor life choice. This is consistent with treating them as a medical problem—people have the choice to accept or reject treatment.
The principle of harm does justify laws that criminalize drug related activity that harms others. Under this principle, the state has the moral right to impose on a person’s liberty to prevent harm to others. These justified impositions would include such things as making it illegal to operate a vehicle under the influence of drugs. Under this principle, the selling of drugs should be treated as the selling of any other product and regulated as such. For example, selling tainted or contaminated drugs should be punished in the same manner as the selling of tainted or contaminated food. As another example, the selling of dangerous drugs should be treated like the selling of any dangerous product (such as lead paint, rigged financial products, tobacco and alcohol) and punished appropriately. And, of course, drug motivated murder and theft should be treated, as always, as murder and theft. Treating drug use as a health issue is thus a better approach and is consistent with still treating some drug related activities as criminal activities.