Undoing Drugs: Beyond Legalization, by Daniel K. Benjamin and Roger Leroy Miller, New York: Basic Books, 296 pages, $23.00
In July 1990, public support for some form of drug legalization stood at an all-time high—about 25 percent, up from low single digits in the early 1980s. One month later, Saddam went into Kuwait. Crisis in the Gulf began, followed by war in the Gulf. As usually happens in wartime, domestic issues were quickly cast aside—drugs included. The legalization movement was devastated by these events and, given the current focus on economic stagnation, hasn't yet recovered.
There are two schools of thought on what happens next. One view is that a unique opportunity for drug-law reform was lost in August 1990, and it will take years to rebuild the momentum for change and find a time when neither the economy nor foreign affairs is in a state of crisis. A more optimistic view holds that now that the drug war is being de-emphasized—probably in Machiavellian fashion by the Bush administration (which knows it can't work)—drug hysteria is also declining and reform proposals can be considered in a calmer and cooler atmosphere.
If the latter scenario is correct, then a new book, Undoing Drugs: Beyond Legalization, by Daniel K. Benjamin and Roger Leroy Miller, could have a major impact on drug policy in the near future. In either event, this well-written, well-researched, and mostly well-argued book may well be the reference point for drug-policy debates throughout the '90s. Benjamin and Miller's thesis is that "the current failure in the war on drugs lies in the fact that we have a policy of uniformity imposed upon a nation of diversity." They propose a federalist approach to drug policy in which the states would take the lead role while the federal government's role would be severely limited.
States could legalize drugs, continue the status quo, or even get tougher on drugs, depending on the wishes of each state's residents. A federalist approach, the authors argue, would allow a maximum amount of local control (even at the county level) and experimentation geared to the particular conditions and values predominant in each locale. They note that the federalist model has worked for alcohol for nearly 60 years.
In evaluating our current drug policy, Benjamin and Miller adopt a legalization point of view: The drug war causes more problems than it solves. They even advance the legalization position. For example, they argue that prohibition encourages rapid and thus dangerous drug consumption because of the need to hide the evidence of a crime. They effectively dissect the assertion that 350,000 "crack babies" are born each year. The number is closer to 30,000.
They explicate a point rarely seen in the literature: "Raising the penalties for drug dealing is equivalent to lowering the penalties on other crimes committed in the course of the illegal drug business. The result is more intimidation, violence, and lawlessness by drug dealers." Their recounting of the history of the crack trade and how it created vast and violent drug gangs is excellent.
Benjamin and Miller's argument for federalism assumes that some states will legalize or decriminalize at least some drugs. Nevertheless, the authors say they do not "know what the correct drug policy is." They even suggest that states could fight the drug war better than the federal government can. This argument is strained and unconvincing, particularly since tough enforcement worsens the problem anywhere and everywhere. Also, government tends to be incompetent, unresponsive, and bureaucratic at every level.
The authors attempt to paint an idealized picture of local law enforcement, portraying it, for example, as less of a threat to civil liberties. In the same book, however, they recount how Boston police "stopped hundreds of people just because they are young and black." They suggest that people dissatisfied by a state's get-tough approach could move to a more liberal state, but such moves are costly, economically and psychologically. In a free country, bad policies, not good people, should move.
Under Benjamin and Miller's proposal, the federal government would retain the right to tax drugs. This is a structural flaw in the proposal, since exorbitant tax rates could be used to establish de facto prohibition against the wishes of particular states. Their concept (anticoncept?) of the "freedom" to live in a city where no one has the freedom to use certain drugs is also troubling.
None of these points invalidates the authors' basic argument that federalism "will yield a better set of drug policies, as the states adjust their policies to correspond to the differing preferences and circumstances of their citizens." But there are some political problems with the federalist argument. Given the overwhelming support for prohibition throughout the country, it is not clear that any state would legalize drugs. Each state already has laws banning drugs. Alaska recently reprohibited marijuana, and in liberal New York a bill to legalize drugs has gotten little support.
While the authors decry the federally led drug war, this war would not be possible without nearly unanimous support from the 50 states. They themselves admit that "the vast majority of all drug prosecutions—well over 95 percent—are handled in state and local courts." So where will the diversity of approaches come from? The authors, who have a legalizer's grasp of the failures of current policy but a prohibitionist's reluctance to end the drug war entirely, do not give the states a clear recommendation on what to do after federal control is lifted.
Interestingly, the states and even localities can already opt out of the drug war, without federal approval. This is because the bulk of drug enforcement takes place at the local level. If certain key states and localities lost their enthusiasm for enforcing prohibition, the "war" would be doomed because the federal government is incapable of engaging in large-scale local law enforcement. The national drug war is a house of cards. Loss of one card could threaten the entire edifice. Even cities can opt out. While drug laws are enacted by the states, it is localities that must allocate resources to enforce them. Prohibition can therefore be fought at any level of government.
This suggests the most serious argument that prohibitionists can make against a federalist approach. If drugs are legalized anywhere in the country, dealers will simply buy there cheaply, travel to other states, and sell cheaply while still making a profit. The authors counter this argument by assuming high taxes on legalized drugs. But the main point of legalization is to drive prices way down so that drug-related crime and violence decline. The authors themselves recognize this and write elsewhere of prices near the "pharmaceutical cost." It is also doubtful whether the federal government could stop interstate smuggling, as the authors propose. Unlike international smugglers, interstate smugglers cannot be arbitrarily searched while crossing state lines.
Perhaps the best response to the prohibitionists is that legalization in one state may well drive drug prices down elsewhere, but crime, violence, and corruption in those other states will also decline and quality control will be vastly improved. The authors, reluctant to fully endorse legalization and eager to play down the national aspects of the drug market, do not make this point.
Drug legalizers, who would not be bothered in the slightest by localized legalization, will likely support this federalist approach as a movement in the right direction. However, there is a hard core of prohibitionists who will vigorously oppose a federalist approach to drug control. This is particularly true of such neoconservatives as William Bennett, James Q. Wilson, and A.M. Rosenthal.
But there is another emerging branch of conservatism—the "paleoconservatives." Already splitting off from the neocons on foreign-policy issues, the antiglobalist, anti-Washington paleocons, who take federalism seriously, may also be ready to send the drug problem back to the states and localities. (It may be significant that Pat Buchanan, the paleocon torchbearer in the Republican primaries, has had little or nothing to say about drugs.) If that is the case, then an odd coalition of libertarians, paleoconservatives, ACLU liberals, and frustrated members of the general public could very well enact the federalist approach to drug policy first proposed by Daniel K. Benjamin and Roger Leroy Miller.
James Ostrowski is an attorney and writer in Buffalo, New York.
This article originally appeared in print under the headline "Local Option".