Drugs have been for years a part of the national dialogue in all sectors of American culture – political, social, and, most noticeably, in popular culture. It seems that a sizeable segment of the population has a desire to get high, and a cursory look at history hints that this has long been the case.

The Use of Drugs

Drugs have probably been used by people for almost as long as there have been people. Many currently illegal drugs, such as marijuana, opium, coca, and psychedelics have been used for thousands of years for both medical and spiritual purposes. If the use of drugs is such an innate and enduring part of human culture, why is it viewed as criminal behavior worthy of the expenditure of huge amounts of our society’s resources (economic, political, social, etc.)?

Any number of answers to this question may have at least some basis in reality. One answer is supported in large measure by the visible facts, but is not based on any scientific assessment of the relative risks of these drugs. This answer has everything to do with who is associated with certain drugs. In other words, it’s the people who have been associated with drug use that makes drug use worthy of our best efforts to criminalize drug use.

When an average, upstanding citizen gives thought to the subject of drug use, these thoughts are likely to gravitate to images of the marginal members of society, not community leaders or the local PTA president. These attitudes are reflected in what actually occurs in modern drug law enforcement. It has been that way for a long time.

That certain racial and ethnic groups are totally associated with drug use and abuse is so ingrained into the public consciousness that it almost seems ludicrous to even consider that this association might not be wholly based in reality. These associations have been made in the U.S. for over a hundred and fifty years and, in fact, are the reason behind many otherwise hard-to-explain situations seen in the American judicial, law enforcement, and penal system.

Inexplicable Situations

One aberrant situation is the racial make-up of the prison population in American. Simple logic would lead one to think that the racial and ethnic make-up of the prison population should roughly align with that of the country at large. But, it’s not even close.

The Federal Bureau of Prisons, which keeps monthly tabs of such things, reported that as of April, 2015, 59.1% of inmates were white, while 37.5% were black. In the 2010 census, people identifying themselves as white comprised 75.1% of the population. Only 12.3% identified themselves as Black or African American. The disparity between the Black prison population and the population at large is a strong indicator that national attitudes toward just who is guilty of criminal behavior are influenced by a large measure of racial prejudice.

The African-American incarceration rate of about 2,300 per 100,000 people is clearly off the charts and a shocking figure. The black-white incarceration rate in the United States is about 6 to 1. Focusing so intently on these racial disparities often obscures the fact that the incarceration rates for other groups in the United States, including whites and Latinos, is also comparatively very high, just not astronomically high as in the case of blacks.

The white incarceration rate in the United States is about 400 per 100,000. This is about 2 to 2.5 times the total incarceration rates of the most punitive countries in Western Europe and about 5 to 6 times the rate of the least punitive ones.

It is becoming increasing known to legislators, the general public, and those who study such matters, that one notable reason behind not only the disparate number of black inmates in American prisons, but also the total number of prison inmates is the simple fact that we incarcerate people at a much higher rate than many other developed countries. An increasingly large number of those incarcerated are for drug offenses.

A few years ago, Newsweek ran an article that gave one doctor’s first-hand account of this exact situation.

For the last 16 years, Dr. Josiah Rich has gone weekly to prisons in or near Providence, R.I., to treat people being held there for drug-related offenses. Each time, he has wrestled with an ethical conundrum: not the issue of whether the offenders have done something wrong, but whether the American prison system is doing something worse. “What I see are not bad people,” he says. “Predominantly, I see people with a disease.”

Of the 2.3 million inmates in the U.S., more than half have a history of substance abuse and addiction. Not all those inmates are imprisoned on drug-related charges, although drug arrests have been rising steadily since the early 1990s; there were 195,700 arrests in 2007. But in many cases, their crimes, such as burglary, have been committed in the service of feeding their addictions. Rich, a professor of medicine and community health at Brown University, is worried that, by refusing or neglecting to provide treatment to these addicts, many U.S. prisons are missing the best chance to cure them, and in the process to cut down on future crime. Treatment can reduce recidivism rates from 50 percent to something more like 20 percent, according to the DEA. Yet it is not widely provided. “Our system has taken the highest-risk and most ill people and put them in a place where they have constitutionally mandated health care,” Rich says.

Addiction Treatment for Inmates

Attitudes toward drug crime may be changing. Two-thirds of Americans would like to see illegal drug offenders enter programs that focus on rehabilitation rather than incarceration, a recent Pew Research Center poll reported earlier this year. The poll conducted telephone interviews with 1,821 adults and is the first large survey of American opinions on drug policies in 13 years. Such a survey reflects the wider issue of whether public perceptions about drug abuse are shifting. Do we increasingly perceive addiction as a public health issue worthy of medical help, or as a crime deserving of punishment?

According to the poll, the majority of Americans continue to view drug abuse as a serious problem, just as they did a decade ago. What’s changed, however, is the way that most Americans believe we should handle the crisis.

Sixty-seven percent of those surveyed believe the Obama administration should emphasize treatment for people who use illegal drugs rather than punishment. Only 26 percent believe jail time should be emphasized. And the percentage of people who believe governments should do away with minimum mandatory sentences for drug crimes increased from 47% in 2001 to 63% in 2014. This shift in opinion addresses the wider question of how to deal with drug offenders in a way that will best help them and our communities rather than simply lock them away.

Over the last few years, some in the justice system have warmed to the idea of treating drug addicts in addition to (or instead of) incarcerating them. In some states, most notably Ohio, almost all first-time drug offenders and many second-timers are offered treatment. That is by no means the case nationally. According to a report released last year by the National Institute on Drug Abuse, just one fifth of inmates get some form of treatment. That number may be lower in the near future: tight budgets are forcing many states to cut back or decrease their existing treatment programs. Kansas and Pennsylvania have already done so; California and Texas may follow suit in the next few months.

Decriminalization of Drugs

The increasing decriminalization of marijuana may have the effect of reducing the prison population, if only as an unintended consequence. Reflective of changing attitudes, medical marijuana use is legal in twenty three states as well as Washington, D.C. The legalization of marijuana for recreational use in two states may prove to be the harbinger of things to come. While “hard” drug use will probably remain under close legal scrutiny for the foreseeable future, taking marijuana out of the legal equation would most likely have a positive effect on the reduction of law enforcement resources dedicated to the problem.

Many ideas and arguments have been advanced for the decriminalization of not just marijuana but so-called hard drugs. Some arguments have a common sense feeling to them, in light of our country’s experience with the prohibition of alcohol.

Most drug use is rooted in social and economic factors. Drug prohibition laws don’t address the factors that lead people to use drugs. Most illegal and legal drug use is recreational. Poverty and despair are at the root of most problematic drug use and it is only by addressing these underlying causes that we can hope to significantly decrease the number of problematic users.

Mexico is in a deep state of crisis, in large part due to the demand for drugs in the U.S. The market for drugs in the U.S. is demand-driven and millions of people demand illegal drugs. Making the production, supply, and use of some drugs illegal creates a huge market into which violent crime cartels are all too eager to exploit.

Given the political climate in America today, it appears unlikely that decriminalization would be even considered. In-prison treatment has some chance of impacting the recidivism rate and thereby reducing the prison overcrowding problem, but given the lack of funding, it seems not much will be accomplished. It is unfortunate, but most likely, that there will be a continuation of the piecemeal, stop gap approach currently used. Perhaps the civil unrest currently in vogue in our country will lead to some genuine reforms.

Daniel R. Perlman, Esq.
Law Offices of Daniel R. Perlman