Unfortunately, most drug policy discussions today revolve around imagined potential gains or problems resulting from legalization of certain drugs. And because of the politics involved, we often really have no choice but to play these ridiculous games. But, in fact, it’s very much the wrong question.

A DEA Agent

Photo: Ryan Lackey / Flickr

The actual question is criminalization. And the answer is “no.”

When you look at the issue properly, you see that what we need to discuss is correcting the massive wrongness of criminalization.

Those who support prohibition have never been required to actually put forth coherent and defendable justifications for criminalization. Instead, they get to claim criminalization as the status quo and merely object to minor details or uncertainties regarding “legalization.” They actually act as if prohibition is the default in our country, which is far from the truth.

And so we get caught up in completely bizarre and meaningless disputes. I was struck, for example, by the utter glee with which Mark Kleiman gloats over his group’s dismantling of the claim that marijuana is the number one cash crop in the U.S. Turns out, according to their calculations, that it’s merely in the top 15.

Other than from a purely academic perspective, who the hell cares? It’s presented as if that is somehow some kind of big blow to legalization, which makes very little sense, but fits within the “gotcha” approach to protecting the status quo, where unless the absolute furthest value of each and every argument mentioned by some legalization activist somewhere is 100% verifiable, then legalization must be flawed.

The better question is: What does the overall cash value of marijuana in the country have to do with the decision to put people in jail for using it?

And so, we’re mired down in arguments over how much tax revenue will come from future drug sales, what percentage of income the cartels get from a particular drug, or what kind of advertising will be allowed, rather than asking why the hell we’re putting people in jail for this.

So, let’s take a look at the right question.

Should drugs be criminalized?

It’s a five-part question.

Step 1: Does the government have the authority to criminalize drugs?

This is not as obvious as some may think, particularly if you look at history.

The Constitution of the United States specifically does not give police powers to the federal government. That kind of power was considered a state function. However, there is one clause in the constitution which gives the government the following “limited” power…

to regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

This is generally known as the commerce clause. As intended, in the early years of this country’s history, the commerce clause allowed only minimal instrusion on the activities within states. For example, federal alcohol prohibition was not considered constitutionally possible without an amendment because of the commerce clause, and judges also regularly placed the tenth amendment in the path of congressional regulation of “local” affairs. [1]

So, even though the Supreme Court has, in modern day, given the federal government extraordinarily wide-reaching powers, there is historical precedent for denying it.

But there is also current Supreme Court jurisprudence that could argue against government prohibition, particularly when you think about cases like Lawrence v. Texas and Roe v. Wade.

If the government doesn’t have the authority to interfere with someone killing a fetus, or with someone sticking a penis into someone else’s anus in the privacy of their own bedroom, it’s not that hard to imagine that maybe the government shouldn’t be able to prevent one from eating a marijuana brownie. If pregnant women and homosexuals have autonomy over their own bodies, then why not drug users?

Is cognitive liberty not a protected right?

So, if you agree that the government has no authority to ban liberty, it’s simple. Criminalization of drug use is wrong.

However, if this doesn’t sway you, and you think that “life, liberty, and the pursuit of happiness” are just some pretty words used for poetic license, and not something real, then you may decide that the government is fully in the right in their authority to ban drugs, and you can continue to step 2.

Step 2: Are drugs dangerous?

It would seem that you’d need to determine that a particular drug is dangerous if you’re going to ban it, unless you’re just doing it because Mexicans or Negro jazz musicians or dirty hippies use it, or because you can make a buck off of criminalization.

And if you’re going to ban something for being dangerous, you should know something about the dangers — unlike our drug system which clearly has no rhyme or reason or qualified analysis of the comparative dangers (both to individuals and to society) of various drugs.

Of course, our legislators can’t be bothered by such basic matters of common sense. They’d gladly pass criminal penalties for the possession of dihydrogen monoxide, if they thought they could get credit for sponsoring the bill.

So let’s say that you think government should be given the authority to criminally prohibit drug use and that a particular drug is dangerous. That leads to step 3.

Step 3: Will criminalization significantly reduce the danger?

This is the most important question that is never asked.

Again, unfortunately, there is a tendency to legislate based on the assumption that outright prohibition will solve perceived dangers, while that is often (perhaps usually) not the case.

We have, tragically, decades of proof that criminalization will not only not reduce any dangers of drug use, but, in fact, will make drug use significantly more dangerous. Uncertain dosage and purity, lack of practical education, and so much more.

However, if you’ve given up on liberty, are convinced that drugs are dangerous, and actually think that prohibition reduces the danger, despite basic common sense and years of evidence, then you’re ready to proceed to step 4.

Step 4: Is criminalization the best way to reduce the danger?

Another important calculation that is too often ignored.

We don’t eliminate speech because some speech is dangerous when used in a particular way. There are thousands of human activities which can be dangerous when abused, yet we don’t criminalize all who participate. We deal with these things through education, through regulation, through helping those people who can’t handle the activity.

The worst possible option would be to criminalize (with jail time, even) millions of people who are not causing any harm, because of a tiny minority who abuse drugs. It would be a complete failure of imagination and intelligence to be unable to craft legislation that targets the problem user without dragging everyone else in with it.

However, if you’re anti-freedom, think drugs are dangerous, lack the common sense to realize that criminalization won’t make them less dangerous, and don’t care about criminalizing millions of innocents because of your pathetic inability to craft targeted policy, then yes, you’re ready to move on to step 5.

Step 5: Are the advantages of criminalization worth the destructive elements of prohibition?

Let’s assume that you’ve gotten this far, and actually believe there to be dangers of drugs that can be solved appropriately by criminalization. You then must weigh that slight good with all the destructive negatives of prohibition. Such as:

… and the list goes on.

That’s the five-part question that really needs to be answered. And it takes quite a bit of self-delusion to get through that exercise and still support criminalization.

No, legalization really isnt the question. But it sure is the answer.

Cross-posted at Drug WarRant