American Bar Association / ABA, Crime, Department of Justice, Drugs, Eric Holder, Politics, Sentencing Law

More Than Minimizing Mandatory Minimums: A Conservative Call for More Radical Drug Reform

I support radical reform of our nation’s drug laws not despite my conservative political views, but because of them. Decriminalization efforts support at least three values that mean much to me as a conservative. Decriminalization falls in line with the conservative (or at least libertarian-leaning conservative) emphasis on personal liberty and the rights of individuals to make choices about how they govern themselves, so long as their actions don’t directly harm others. Decriminalization makes good moral sense too, by not vilifying addicts and by not needlessly breaking up families through incarcerating non-violent offenders. Perhaps most significantly, radically reforming current drug laws avoids the economic irresponsibility of America’s failed war on drugs.

This week, of course, Attorney General Eric Holder announced new Justice Department policies for drug prosecutions, while addressing the ABA Annual Meeting in San Francisco. In his speech, Holder proposed tinkering with the application of mandatory minimum sentences for drug-related crimes; modifying the Justice Department’s charging policies “so that certain low-level, nonviolent drug offenders who have no ties to large-scale organizations, gangs, or cartels will no longer be charged with offenses that impose draconian mandatory minimum sentences”; and “taking steps to identify and share best practices for enhancing the use of diversion programs – such as drug treatment and community service initiatives – that can serve as effective alternatives to incarceration.”

I commend Holder’s effort. But as a conservative considering the economics of the drug war, I’m concerned that this new policy neglects one of the most significant reasons why we need much more radical reform than this . . . .

First of all, Holder’s announcement implicates some significant separation of powers issues for those who still care about such things. When prosecutorial discretion creeps into selective enforcement, one rightly wonders whether the Executive Branch is constitutionally permitted to exercise this power in the first place. For the sake of present discussion, though, I’ll set aside this concern.

Here’s the concern I won’t set aside. Partial reforms such as increased discretion in sentencing do little to address one of the greatest costs — social and purely economic — of the current drug war. So long as drugs are illegal, criminal activity in addition to drug use or possession is likely to be greater too.

The street price of illegal drugs is higher than it otherwise would be because it factors in the costs of illegality. Production costs are higher because of smaller scales of production. Production and distribution involve risks that must be accounted for. Some studies suggest that decriminalization could result in as much as a seventyfold price reduction in the case of heroin, twentyfold in the case of cocaine, and fifteenfold in the case of marijuana. Even much more conservative data suggest that the street price of cocaine is 2.5 to 5 times larger than the price that would prevail if cocaine were legalized, while the street price of heroin is 8 to 19 times larger than the price in a legal market.

This high street price does not entirely dissuade users from purchasing illegal drugs. The high price does, however, lead many users to participate in other criminal activity in order to be able to afford expensive habits. Serious drug use gets pricey. Many addicts resort to crimes such as theft, prostitution, and low-level drug-pushing in order to finance their addictions. If decriminalization lowers the purchase price of now-illegal drugs, it should also lower the rates of crimes associated with acquiring the money necessary to pay that purchase price.

If someone is addicted enough to steal (or hook or push drugs or whatever) in order to feed a habit, they are obviously addicted enough that they will keep using when the price drops. This is sad for them — but it is measurably better for communities that will suffer less theft and associated crimes. Illegal drug addicts are no worse off than they would be under current criminal policy: they are marginally better off because at least they aren’t led to and prosecuted for associated crimes such as theft. Communities are better off than they would be under current policy: fewer victims of theft crimes and fewer public dollars spent administering justice for both the primary drug offenses (that would be eliminated) and for the secondary theft crimes (that would be reduced).

Of course, even a radical legalization policy should not encourage illegal drug use. We aren’t trying to make drug habits so affordable that large numbers of individuals who don’t currently use illegal drugs pick up habits simply because a legalization policy removes one barrier to entry — the current high street price. I don’t want to dismiss this objection, but I also refuse to give it too much weight. How many people aren’t meth addicts now but would become addicts if only meth prices dropped? Some but few, I’d wager. Freeing resources currently used for law enforcement can, of course, be reallocated toward more aggressive education about the dangers of (especially hard) drug use, as well as better treatment options for current addicts.

The new Justice Department policies Eric Holder announced this week don’t address these concerns. The street price of drugs is high largely because of costs associated with production, trafficking, and distribution — costs that will likely remain unchanged by shifting the focus of prosecutions away from petty offenders but keeping it on high-level traffickers and cartels. Changing the former is, indeed, a good thing. Maintaining policies on the latter, though, perpetuates many of the social and economic costs of the war on drugs.

Granted, these are, at bottom, empirical questions requiring answers outside the scope of the extensive resources of the, ahem, ATL Conservative Policy Research Department, aka . . . me. Nevertheless, these concerns are exactly what should be guiding our nation’s drug policy. We should be more concerned with evaluating the costs of maintaining criminal sanctions for drug use, possession, and sale at all, and less concerned with sidestepping mandatory minimum sentences or other half-way measures.

In the end, drug-law reform advocates, including the growing number of conservatives, shouldn’t necessarily fault Eric Holder for his speech this week. His new policy is pretty good as far as it goes. It just doesn’t go very far. Prosecutorial discretion and selective enforcement are no replacement for legislative reform. As attorney general, not lawmaker, that may not be Eric Holder’s job, but somebody’s got to do it.

Earlier: Eric Holder Preaches To The Choir At ABA: It’s Nice When Lawyers Think People Will Listen To Them About Laws


Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. She has clerked on the U.S. Court of Appeals for the Fifth Circuit and worked as a researcher for multiple projects on the intersection of cognitive science and law, including Baylor College of Medicine’s Initiative on Neuroscience and the Law. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at tabo.atl@gmail.com

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