By David Boyum & Mark A. R. Kleiman
The American criminal justice system now spends a significant proportion of its resources enforcing the drug laws. More than 10 percent of all arrests and about 20 percent of all incarcerations involve drug law violations. (Most of the 1.5 million annual drug arrests are for simple possession, while the majority of the 325,000 people behind bars on drug charges are there for dealing.) Drug-related arrests are up 50 percent over the past 10 years, and drug-related incarceration is up 80 percent. And the burden of drug law enforcement falls especially on urban minority communities: Will Brownsberger and Anne Morrison Piehl of Harvard found that the poorest neighborhoods in Massachusetts, with a little more than 10 percent of the state’s population, accounted for 57 percent of state prison commitments for drug offenses, while Peter Reuter and his colleagues at RAND estimated that nearly a third of African-American males born in the District of Columbia in the 1960s were charged with selling drugs between the ages of 18 and 24.
Such vigorous enforcement of drug prohibition, while controversial, enjoys substantial support. This is partly because drug laws are seen as protecting people -especially, but not exclusively, children – from drug abuse and addiction. But it is also because drug prohibition and enforcement are widely believed to prevent burglary, robbery, assault, and other predatory crime, a view apparently borne out by the violence that surrounds much drug dealing and the high rates of drug use among active criminals. Because drug trafficking is inherently violent and because illicit drug use is a catalyst for criminal behavior, the argument goes, enforcement efforts to suppress drug selling and drug taking will tend to reduce crime.
But advocates of drug legalization and many other critics of current drug control efforts argue the opposite. They say that drug policy, and not drug abuse, is principally responsible for the observed relationship between drugs and crime. Drug laws and their enforcement make illicit drugs more expensive. Higher drug prices increase nondrug crime because many heavy users commit crimes to finance their habits. Violent crime among dealers is even more obviously attributable to drug prohibition; when alcohol was an illicit drug, alcohol dealers settled their differences with firearms, just as cocaine dealers do today. But two liquor store owners are now no more likely to shoot one another than are two taxi drivers. Eliminate the drug laws, it is said, and most drug-related crime will also disappear.
Each of these views has an element of truth. By creating black markets, prohibition can cause crime. But so too can intoxication and addiction, which would increase if drugs were freely available. Further complicating these links between drugs and crime is the fact that the pharmacological effects of intoxication and addiction, the patterns of use, and the economics of buying and selling differ greatly across drugs. It would not be surprising if some policies were crime-reducing when applied to, say, methamphetamine but crime-increasing with respect to marijuana. And vice-versa.
Thus, the question that supporters and opponents of drug prohibition endlessly debate, “Do drugs, or drug laws, cause crime?” presents a false dichotomy. The answer to both halves of the question is “Yes.” In this essay, we will try to answer a more productive question: What drug policies would work best to minimize predatory crime? The question is difficult to answer, given the complexity of the problem and the uncertainty surrounding key factual questions. A reasonable first step is to review the empirical evidence about the potential links between drugs and such predatory crimes as theft and assault.
The drugs-crime connections
The three most important causal links between drugs and crime are the behavioral effects of drug use, the urgent need of addicts for money to feed their habits, and the side-effects of illicit markets. We will examine each in turn.
Intoxication and addiction, in certain circumstances, appear to encourage careless and combative behavior. The key empirical observation here is that more crimes – and, in particular, more violent crimes – are committed under the influence of alcohol than under the influence of all illegal drugs combined. When state and federal prisoners were asked about the circumstances of the offenses that landed them in prison, 24 percent said they were under the influence of illicit drugs (but not alcohol) at the time, 30 percent cited intoxication with alcohol alone, and 17 percent named drugs and alcohol together. That alcohol, a legal and inexpensive drug, is implicated in so much crime suggests that substance abuse itself, and not just economic motivation or the perverse effects of illicit markets, can play a significant role in crime.
This connection is hardly surprising. Anything that weakens self-control and reduces foresight is likely to increase lawbreaking activities. Most crime doesn’t pay, and being high is one good way to forget that fact. (Driving drunk, for example, rarely stands up to cost-benefit analysis from the drunk driver’s viewpoint, yet many otherwise sensible people engage in it.) Some forms of intoxication also make certain crimes seem more rewarding, as well as making punishments seem less threatening. And most of us know people who become aggressive when drunk or high.
However, the immediate effects of intoxication are not the only, or necessarily the most significant, connection between drug taking and crime. Chronic intoxication impairs school and job performance, makes its victims less able to delay gratification, and damages relationships with friends and family. All of these tend to increase criminality.
The second important link between drugs and crime involves drug users’ need for large amounts of quick cash due to the high costs of maintaining an illegal drug habit. The average heavy heroin or cocaine user consumes about $10,000 to $15,000 worth of drugs per year, a sum that most of them cannot generate legally. In one survey of convicted inmates, 39 percent of cocaine and crack users claimed to have committed their current offense in order to get money to buy drugs.
Nonetheless, the economic links between drug use and income-generating crime go both ways. Drug users commit crimes to obtain drug money – in part because their drug use reduces opportunities for legitimate work – but there is also the “paycheck effect.” Just as some heavy drinkers splurge at the local bar on payday, drug-involved offenders may buy drugs because crime gives them the money to do so. Thus income-generating crime may lead to drug use, as well as the other way around.
The drug trade provides the third connection between drugs and crime. Because selling drugs is illegal, business arrangements among dealers cannot be enforced by law. Consequently, territorial disputes among dealers, employer-employee disagreements, and arguments over the price, quantity, and quality of drugs are all subject to settlement by force. Since dealers have an incentive to be at least as well-armed as their competitors, violent encounters among dealers, or between a dealer and a customer, often prove deadly.
Moreover, perpetrators of inter-dealer or dealer-customer violence are unlikely to be apprehended: Enforcement drives transactions into locations that are hidden from the police, and victims – themselves involved in illegal behavior – are unlikely to complain to the authorities. An increasingly common form of drug-market violence is simple robbery-murder by gangs that are in the drug trade only in the sense that hijackers of truckloads of microchips are in the electronics business.
Still, it is not clear how much of the violence among drug dealers is attributable to the drug trade itself, as opposed to the personal propensities of the individuals employed in it, or to the economic, social, and cultural conditions of drug-plagued communities. Violent drug dealers tend to live and work in poor, inner-city neighborhoods, where violence is common independent of the drug business. On an individual level, a willingness to engage in violence is part of the implicit job description of a drug dealer in many markets. And the Darwinian logic of criminal enterprise suggests that surviving dealers are those who are best able to use violence, intimidation, and corruption to protect their positions.
Even the degree to which the drug trade provides the immediate pretext for violence among drug dealers is hard to pin down. Many violent incidents that are commonly described as drug-related – because they occur between dealers, between members of drug-dealing gangs, or at a known dealing location – turn out on close inspection to have personal rather than commercial motives, involving gang territory, an insult, sexual competition, or just a confrontation between two edgy, armed youngsters.
Finally, the drug trade also contributes to crime by diverting inner-city youths away from school and legitimate employment. Not only does drug dealing introduce them to criminal enterprise, it also increases their risk of substance abuse and weakens their prospects for legitimate work (a recorded conviction and prison time are two obvious reasons), all of which make it more likely that they will engage in criminal activity, both in and out of the drug business.
Distinctions among drugs
Connections between drugs and crime vary across drugs. Of the three leading illicit drugs – marijuana, cocaine, and heroin – marijuana is the least implicated in crime. Marijuana users do not typically become violent, and marijuana habits are less expensive to support than cocaine or heroin habits. And marijuana is bought and sold in markets that, while not free of violence, are less violent than cocaine and heroin markets. This is in part because marijuana users make fewer purchases than do heroin or cocaine users, and in part because much marijuana is sold in residential settings by dealers who do not themselves have expensive habits.
Cocaine, on the other hand, is an expensive drug whose use and distribution are often accompanied by violent behavior. Heroin is less often tied to violence than cocaine, but because of the persistence of heroin addiction and the more regular use of the drug, it is possible that heroin addicts typically commit more income-generating crimes over time than cocaine addicts.
This analysis suggests that a reduction in heroin or cocaine use is likely to mean a bigger decrease in crime than a comparable reduction in cannabis use. As for other illegal substances, methamphetamine would tend to resemble heroin and cocaine in this regard, while MDMA (“Ecstasy”) and diverted pharmaceuticals, including painkillers such as Oxycontin and Vicodin and the benzodiazepine tranquillizers such as Valium and Xanax, would look more like cannabis.
Should we legalize?
“Don’t Legalize Drugs” was the title of a recent Wall Street Journal op-ed by John Walters, the current “drug czar.” Normally, an official of cabinet rank would not write an op-ed opposing a policy change that has no serious support in either house of Congress. But the legalization question has a prominence that is wildly disproportionate to its immediate relevance, perhaps because, at first glance, the fit between current drug policies and such treasured ideas as consumer sovereignty, individual liberty, and limited government seems so awkward.
Legalization advocates argue that repealing drug prohibitions would cut crime by eliminating black markets, by removing users and sellers from the criminal world, and by making resources now used to capture and imprison dealers and users available for use in enforcement efforts against predatory crime (and perhaps for crime-reducing drug-treatment programs). Maybe so. But in its rhetorical contest with a hypothetical legalization, prohibition is handicapped by its very reality. Actual policies, as Aristotle first noted about actual regimes, always have flaws that merely imagined ones lack. Planned policies, like many job applicants, look terrific on paper. There is no reason to doubt, however, that the same processes of symbolic politics, bureaucratic management, and interest-group pressure that have distorted the prohibition effort would produce a legalization regime similarly remote from the ideal that we might design in a seminar room.
Whether a change in the legal status of currently illicit drugs would increase or decrease crime would be hard to predict even if the details of legalization proposals were better specified than they usually are. The answer need not be, and probably is not, the same for all currently illicit drugs. The odds are that making marijuana legally available to adults on more or less the same terms as alcohol would reduce crime, because marijuana intoxication, either as a current state or as a habit, does not typically generate either anger or criminal recklessness. Even greatly increased consumption would probably lead to little crime. Yet that conclusion holds only if we assume what seems plausible but is by no means certain: that increased marijuana use would not increase consumption of cocaine or alcohol.
By contrast, the legalization of methamphetamine would undoubtedly increase crime. Methamphetamine markets are still geographically isolated, but that would change with legalization. And unless methamphetamine’s reputation for bringing out aggressive behavior is completely undeserved, the increase in crime related to intoxication and addiction that would result from legalization would easily outweigh any benefits gained from eliminating currently localized illicit markets.
Of course, the main event on the legalization fight-card is not marijuana or methamphetamine but cocaine, which is both the biggest illicit drug market in dollar terms and the one that gets the bulk of law enforcement attention. Would legalizing cocaine reduce crime? No one knows. The effects of cocaine legalization would be so numerous, so profound, and so unpredictable that any strongly expressed opinion on the subject must reflect some mix of insufficient intellectual humility and simple bluff.
We regard cocaine legalization as, on balance, a thoroughly bad idea, but that view is based in part on our belief that better tailored policies could maintain most of the advantages of cocaine prohibition without constantly keeping a couple hundred thousand people behind bars on cocaine charges. Compared to a straight-line projection of current policies – our strong desire for better policies is not accompanied by any optimism about their enactment – cocaine legalization might in fact reduce crime. The crime related to cocaine markets would disappear, but crime due to intoxication or addiction would increase, to some utterly unknown extent. Meanwhile, crime committed to get money to buy cocaine might go up or down, depending on the pricing scheme adopted and the price-elasticity of demand. There is simply no way to know in advance the net effect. And legalization on an “experimental” basis is an oxymoron: The resulting explosion in the size of the markets and the number of addicts would make reinstituting prohibition nearly impossible.
The problem of alcohol
That alcohol alone is responsible for more crime and violence (not to mention deaths due to overdose and disease, fetal damage, accidents, and bad parenting) than all of the illicit drugs combined suggests that legalization is no panacea. Indeed, any serious conversation about altering the legal status of drugs in the name of crime control should start with the topic of alcohol. Until we figure out how to better manage the problems caused by our one currently legal addictive intoxicant, it makes little sense to consider legalizing other drugs.
Economic efficiency dictates that alcohol taxes should be high enough to cover the costs that drinkers impose on others. They are not even close. The right amount would put alcohol taxes at about a dollar per drink, 10 times the current level. Because alcohol consumption, and especially consumption by young drinkers and heavy drinkers, is responsive to price, the effect on alcohol-related crime (including domestic violence and child abuse) would likely be substantial.
To be sure, such a tax would encourage the trafficking and consumption of “moonshine” and other illegal alcohol products, bringing with them black-market crime and dangerously adulterated drinks. But evidence from those foreign countries where alcohol is taxed more highly than in the United States – and from the early 1950s, when U.S. alcohol taxes were, in purchasing-power terms, several times higher than they are now – suggests that these effects would be minor. It appears that the safety and convenience of legal alcohol, and loyalty to legal brands, are sufficient to overwhelm the cost advantage of untaxed products.
A more radical step would be to reduce the legal availability of alcohol to problem drinkers. This could be done by forbidding the sale of alcohol to persons convicted of serious or multiple crimes committed under the influence – in effect, a selective rather than a blanket prohibition. It seems curious that a drunk driver should be deprived of his driving license while the “license” to drink is treated as irrevocable. A prohibition on the sale of alcohol to those with a history of alcohol-related misconduct, even with its inevitable imperfections, would almost certainly be crime-reducing, perhaps substantially so. In addition, it might free police resources by reducing the population of chronic inebriates repeatedly arrested for minor offenses in public order. (In 2000, there were an estimated 1.3 million arrests for drunkenness, disorderly conduct, and vagrancy.)
Making prohibition work better
Polarization around the legalization question conceals the enormous range of policy choices available under the current legal regime, which bans the nonmedical use of all intoxicants other than alcohol. A better designed drug control regime could greatly reduce crime, while leaving those prohibitions in place.
Drug control policies are typically categorized into enforcement, prevention, and treatment. Enforcement is the dominant activity of American drug policy. Domestic law enforcement accounts for about half of the federal drug control budget; including state and local activity, enforcement’s share is about three-quarters of total drug control spending.
Until recently, academic analyses of drug enforcement and crime viewed the price of drugs as a key factor. That analysis turned out to be wrong on two accounts. First, it was assumed that tougher enforcement could substantially increase the price of drugs. The theory was that when enforcement threatened drug traffickers and dealers with the risks of arrest, imprisonment, and the loss of their drugs, money, and physical assets, sellers would charge higher prices as compensation for those risks. It was also assumed that the demand for drugs was, in the short run, relatively unresponsive to price (“inelastic,” in economics terminology), meaning that an enforcement-led price increase would result in greater total expenditures on drugs. The implications of these assumptions were that enforcement would indirectly lead users to commit more crimes for drug money, and that market-related violence would also rise, as dealers battled over a larger revenue pool. It was in principle possible that the fall in abuse-related crime stemming from slightly reduced consumption would be greater than the combined increases in crimes committed by dealers seeking competitive advantage and by users looking for drug money. But the arithmetic of relatively inelastic demand (again, in the short run) was discouraging. (In the long run, higher prices would tend to reduce the incidence of addiction and increase the rate of recovery, thus reducing crime.)
Today, these underlying assumptions look shaky. Recent research indicates that the demand for cocaine and heroin is far more responsive to price than previously assumed, so much so that the old critique of drug law enforcement as counterproductive in terms of predatory crime seems to have been mistaken. If we remained confident that more, or better, drug law enforcement could substantially raise prices, boosting such enforcement in the cocaine and heroin markets would now appear to be an effective, and perhaps cost-effective, crime-control measure.
However, confidence in the ability of enforcement to raise prices has been slipping, even as appreciation of the value of such price increases has been growing. Over the past two decades, a dramatic increase in enforcement efforts has been accompanied by an equally dramatic drop in cocaine and heroin prices. In the 1990s, for example, the number of incarcerated drug offenders roughly doubled, while inflation-adjusted cocaine and heroin prices fell by half. Why cocaine and heroin prices have fallen in the face of increased punishment for drug law violations is something of a puzzle, but the easy replacement of dealers who have been removed from the drug trade is surely part of the explanation.
Suppose that a drug dealer is arrested and imprisoned. That, in effect, creates a job opening for a new dealer. When the first dealer is released from prison and, as is likely, reenters the drug trade, there are now two dealers where once there was one. Writ large, this story suggests that conventional drug enforcement, by imprisoning hundreds of thousands of dealers and thereby drawing hundreds of thousands of others into the drug trade, may significantly increase the long-run supply of dealers. The logical result is downward pressure on prices.
Drug enforcement for crime control
That analysis also provides important backing for the view that retail-oriented enforcement strategies should concentrate on selectively disrupting markets rather than merely making many arrests. The purpose of selective market disruption is to pick out especially violent segments of the market – defined by drug, geography, dealing style, and the identities of the dealing organizations involved – and make it difficult for buyers and sellers in those segments to connect. In particular, moving street markets indoors and disrupting “drug house” operations by pressuring sellers to adopt more discreet dealing strategies can pay big crime-control dividends.
Open street markets present numerous opportunities for conflict and violence – disputes over turf, disputes over customers, disputes between dealers and police, and simple robbery. Indoor markets are less disruptive of neighborhoods and less prone to violence. As Harvard researcher David Kennedy, a leading advocate of arrest-minimizing enforcement strategies, puts it: “All drug markets present trouble for communities, but street drug markets are the worst trouble of all. Eliminating them would be a huge stride toward quelling drug-related violence and disorder.” A notorious crack house, with customers pulling up at all hours of the day and night, attracts disorder and violence. In contrast, a dealer with a cell phone and a pizza-delivery truck – the kind that became more common in New York after the 1990s drug crackdown made flagrant dealing difficult – damages primarily the buyer and those close to the buyer; the transaction itself is fairly innocuous.
Other things being equal, it is better to deploy enforcement resources against drugs whose markets are small and growing than against drug markets that are large and stable or shrinking. Since the effectiveness of a given level of enforcement pressure on a market is inversely proportional to the size of the market, enforcement against a small market should have more impact than enforcement against a large market. Moreover, drug use often spreads in epidemic fashion, much like a communicable disease. New users are particularly “contagious,” in the sense that they are most likely to initiate others. Long-term users, who are more likely to know the pitfalls of prolonged use and often present an unappealing picture of the consequences of addiction, are far less contagious. Therefore, preventing the initiation of new users has a multiplier effect.
Whether enforcement can intervene early enough in an epidemic to make a difference is an open question. One barrier is informational: It’s hard to identify epidemics until they’re already well underway. A second obstacle is operational: Shutting down distribution networks requires a degree of intelligence that is difficult to muster before a rising drug has developed stable distribution networks. As Jon Caulkins of Carnegie Mellon University has suggested, the early stages of distribution involve social rather than commercial networks; these are difficult to penetrate, particularly when the early users have little contact with the criminal justice system. A third impediment is organizational: Mature markets yield more and better cases per unit of enforcement effort than emerging markets, a fact that discourages individual agents and agencies from shifting attention early. These factors make the temptation to “fight the last war” nearly overwhelming. Still, despite all these difficulties, it’s hard to see how shifting enforcement resources to emerging drug threats (at least to emerging threats with strong potential links to nondrug crime) would be anything other than beneficial.
Crime prevention could also be enhanced by reforming sentencing policy. Given limited prison capacity, it makes sense to give priority to housing the most active and violent offenders. Current federal policy is perhaps the most prominent example of the wrong approach. Under federal law, relatively minor participants in drug trafficking, some with no prior arrests, frequently face long mandatory prison terms. According to a Department of Justice analysis, in the early 1990s (when drug offenders accounted for a smaller share of the federal prison population than today) 21 percent of all federal prisoners were “low-level drug law violators” with no record of violence or prior incarceration. Of these, 42 percent were drug couriers (or “mules”), rather than dealers or principals in trafficking organizations. Since those prison cells could instead be holding more dangerous offenders, imposing long mandatory sentences on minor drug offenders tends to increase predatory crime.
Prevention and treatment
Prevention programs, aimed at reducing experimentation and occasional use primarily by children and adolescents, enjoy strong support across the political spectrum. Even modestly successful prevention programs are unambiguously beneficial in reducing crime. They offer the benefit of reduced drug use and reduced drug dealing without any of the unwanted side-effects of enforcement.
That’s the good news about prevention. The bad news is that few prevention programs have demonstrated that they can consistently reduce the number of their subjects who use drugs. The single biggest and best known program, Drug Abuse Resistance Education (DARE), consistently performs poorly in evaluations. The positive results of some pilot programs have often proven difficult to replicate in other settings. And the link between reducing early drug initiation – the usual measure of effectiveness applied to prevention programs – and preventing future addiction and crime is assumed, rather than demonstrated. According to the most thorough research, even the best prevention programs are only about as cost-effective as typical enforcement efforts in reducing cocaine consumption, and far less cost-effective than ordinary drug-treatment programs. And that relatively unfavorable assessment may well be optimistic, since such research arguably understates the educational cost of having children spend time in drug-prevention sessions instead of English or math class.
One of the problems with prevention programs is that the majority of the participants are not likely candidates for developing serious drug habits. By contrast, treatment deals with users who have established drug problems. Successful or even partially successful treatment of drug-involved offenders is an unequivocal winner from a crime-control perspective. The criminal activity of addict-offenders seems to rise and fall in step with their drug consumption, and that relationship holds whether reductions in drug use are unassisted or are the product of formalized treatment, and whether participation in treatment is voluntary or coerced. Moreover, a treatment-induced reduction in demand does not bring with it the side-effects of an enforcement-induced reduction – higher drug prices and the depletion of criminal justice resources. Since many drug-involved offenders sell drugs in addition to using them, and some may exit the drug trade if they gain control over their own habits, treatment has supply-reduction as well as demand-reduction benefits.
While most popular and much scholarly discussion of treatment focuses on rates of “success” – conventionally defined as complete abstinence one year later – treatment can have powerful crime-control benefits even if it does not permanently end drug use. Findings from the Treatment Outcome Prospective Study (TOPS) – to date the most comprehensive study of treatment effectiveness – indicate that most of the treatment-related reduction in criminal activity occurs during treatment. Indeed, the within-treatment crime reductions are sufficient to justify the cost of treating criminally active users, even assuming no effect on post-treatment behavior.
Thus the inadequate availability and poor quality of substance-abuse treatment constitute a missed opportunity for crime control. Advocates of drug treatment, including the providers themselves, are understandably frustrated and outraged that, in a political atmosphere where the punitive side of the crime-control effort enjoys widespread support and growing funding, drug treatment remains neglected and underfunded.
A special source of outrage is the underprovision and overregulation of opiate maintenance therapy. In terms of crime-control efficacy and other measurable improvements in the behavior and well-being of its clients, methadone treatment is by far the most dramatically successful kind of drug treatment. Unlike most forms of treatment, it has little trouble attracting and retaining clients. Yet, because it does not promise or even attempt to cure addiction, methadone, along with other maintenance therapies, remains bitterly controversial. Today, it is so buried under various regulatory burdens that only about one-eighth of U.S. heroin addicts are currently enrolled in methadone programs. But recent regulatory changes that make methadone more widely available and that will ease the approval of buprenorphine, another maintenance agent, may mark the start of a new era for treatment.
Drug testing and sanctions
Several factors limit the capacity of drug treatment, whether voluntary or coerced, to reduce crime. These include the limited availability of treatment, deficiencies in technique and quality, the reluctance of many drug-involved offenders to undergo treatment, and the administrative and procedural difficulties of coerced treatment. It is commonly thought that the limits on treatment are also the limits on the criminal justice system’s ability to influence the drug taking of those under its jurisdiction. This view, however, assumes that most users of expensive illicit drugs suffer from clinically diagnosable substance-abuse or dependency disorders, that they have no volitional control over their drug taking, and that all such disorders are invariably chronic and go into remission only with professional intervention. Happily, not one of these propositions is true.
Many users, even frequent users, of cocaine, heroin, and methamphetamine do not meet clinical criteria for substance abuse or dependency. (“Substance abuse” as a legal matter merely means use of a prohibited drug, or use of a prescription drug for nonmedical reasons or without a valid prescription; “substance abuse” as a medical matter is defined by criteria such as escalation of dosage and frequency, narrowing of the behavioral repertoire, loss of control over use, and continued use despite adverse consequences.) Even for those who do meet these clinical criteria, actual consumption is not a constant but rather varies with the availability of the drug and the consequences, especially the more-or-less immediate consequences, of taking it. Incentives influence drug use, even within the treatment context. Monitoring drug use by urine testing enhances treatment outcomes, as does the provision of even very small rewards for compliance. Moreover, while the minority of substance-abusing or substance-dependent individuals who suffer from chronic forms of those disorders makes up a large proportion of the population in treatment, the most common pattern of substance abuse is a single active period followed by “spontaneous” (i.e., not treatment-mediated) remission.
All this being the case, persuading or forcing drug-using offenders into treatment is not the only way to reduce their drug consumption. An alternative to requiring treatment is to mandate desistance from the use of illicit drugs for persons on probation, parole, or pretrial release. Desistance can be enforced by frequent drug tests, with predictable and nearly immediate sanctions for each missed test or incident of detected drug use. While in the long term drug-involved offenders who remain drug-involved are likely to be rearrested and eventually incarcerated, those long-term and probabilistic threats, even if the penalties involved are severe, may be less effective than short-term, but more certain, sanctions.
For those offenders whose drug use is subject to their volitional control, testing-and-sanctions programs can reduce the frequency of drug use. Those unable to control themselves, even under threat, will be quickly identified, and in a way that is likely to break through the denial that often characterizes substance-abuse disorders. Identifying these persons will enable the system to direct treatment resources to those most in need of them. It will also help create a “therapeutic alliance” between treatment providers and clients by giving clients strong incentives to succeed, as opposed merely to wanting the therapists off their backs.
Since recent arrestees account for most of the cocaine and heroin sold in the United States, and therefore for most of the revenues of the illicit markets, an effective testing-and-sanctions program would have a larger impact on the volume of the illicit trade – and presumably on the side-effects it generates, including the need for drug law enforcement and related imprisonment – than any other initiative that could be undertaken. By one estimate, a national program of this type could reasonably be expected to shrink total hard-drug volumes by 40 percent.
Keys to success
To succeed, such a program would need money and facilities for drug testing, probation caseloads small enough to be adequately monitored, and either judges willing to sanction predictably or probation departments with the authority to impose administrative sanctions. It would require police officers – or probation officers with arrest authority – to seek out absconders, the capability to carry out sanctions (for example, supervisors for “community service” labor, and confinement capacity appropriate for one- and two-day stays), and treatment capacity for those who proved unable to quit without professional help. Offering rewards for compliance, if only the remission of previously imposed fines, in addition to punishments for noncompliance would improve success rates and reduce overall costs.
Another key to success is the immediacy and certainty of the sanctions and rewards. This in turn depends on keeping the population assigned to the program small compared to the resources available, until the program has had a chance to establish the credibility of its threats. That credibility will minimize violation rates and thus the need for the actual imposition of sanctions. Maryland’s well-publicized venture into testing and sanctions, under the rubric “Breaking the Cycle,” ran aground on its failure to establish sanctions credibility, the result of an overly large target population, lack of administrative follow-through, and judicial reluctance to punish detected drug use.
Once up and running, testing-and-sanctions programs can pay great dividends. By one calculation, a successful program can operate on just over $3,000 per offender per year, or about 15 percent of the cost of imprisonment. Thus a national program, covering all offenders with identifiable hard-drug problems, could be implemented for between $6 and $8 billion per year, a sum that would be more than recovered by the consequent reductions in imprisonment for both the drug-involved offenders and the drug dealers who would have to leave the business as their best customers were denied them.
While there is clear evidence that testing and sanctions, even imperfectly administered, can substantially reduce drug use among offenders, only a full-scale trial of the idea would tell us whether the promises of its advocates are overblown. But the big question is not whether offenders would respond to the program, but whether our creaky criminal justice machinery is capable of putting it into practice.
The need for cooperation among multiple agencies – state, county, and municipal; judicial, administrative, and nongovernmental – greatly increases the difficulty of successful implementation. Formulaic sanctioning requires limiting judicial discretion, either by getting the judges out of the process entirely or by persuading judges to put their actions on autopilot. The former is unpopular with judges, who remain quite influential in policymaking, and the latter is difficult to bring about. As one researcher remarked after evaluating such a program, changing the behavior of addicts is easy, but changing the behavior of judges is hard.
Ideologically, the testing-and-sanctions approach tends to be too tough-sounding and insufficiently therapeutic to appeal to treatment advocates – who are morally outraged at the notion that someone with a disease could be punished for manifesting one of its symptoms – and yet not draconian enough to excite the drug warriors. The latter group would prefer to use drug test results as the basis for revoking probation or parole status and incarcerating the offender for months rather than hours, an approach inconsistent with both certainty or swiftness in sanctioning.
Whether these barriers can be overcome remains uncertain, but current evidence is not encouraging. A study by the California Policy Research Center found that California probationers, even when nominally subject to drug testing, faced only sporadic tests and highly inconsistent sanctions. In Maryland, where Lieutenant Governor Kathleen Kennedy Townsend attempted a full-scale implementation of the idea, resistance from the courts, the probation departments, and treatment advocates and their legislative allies caused the sanctions portion of the program to falter badly. Despite evidence that testing had reduced offender drug use substantially, journalistic accounts stressed the program’s difficulties, and the resulting bad publicity probably contributed to Townsend’s loss in last year’s gubernatorial election. At the national level, President Bush, like his predecessor, has embraced the idea rhetorically but failed to follow through in practice.
A crime-minimizing drug policy
The testing-and-sanctions idea is the only single proposal with the potential to reduce drug-related crime swiftly and dramatically. Unfortunately, that promise depends on the mobilization of more political and administrative muscle than may in fact be available. But other policy changes still offer the possibility of significant reductions in drug-related crime – raising taxes on alcohol, forbidding alcohol sales to the minority of drinkers most prone to breaking the law under the influence, expanding drug treatment and in particular opiate maintenance therapy, and redirecting drug law enforcement, prosecution, and sentencing to minimize trafficking-related violence by targeting the most flagrant markets and the most violent dealers. No drug policy can deliver a drug-free society. But smarter policies can give us a safer one.
David Boyum is a public policy and management consultant in New York City and co-author of What the Numbers Say (Broadway Books, 2003).
Mark A. R. Kleiman is professor of public policy at UCLA and author of Against Excess: Drug Policy for Results (Basic Books, 1993).