Drug Policy by Mark A.R. Kleiman

DRUG POLICY FOR CRIME CONTROL Un exam en a ttentif des liens entre, d'une part, la drogue et les politiques antidrogue, et, d'autre part, Ie probleme de la criminalite montre que ni les mesures en place ni les propositions de ceux qui les contestent n 'o nt pour objet specifique de reduire l'activite criminelle. Pour faire baisser 1incidence de la criminalite au sens general, il faudra prendre d 'a utres moyens : proteger Jes quartiers urbains en s'attaquant aux trafiquants qui exercent leur activite ouvertement, concentrer Jes sanctions Cv compris les peines d'emprisonnement) sur ceux qui ont recours a la violence ou aux services de complices adolescents ou meme plusjeunes, reformuler les criteres relatifs a{emprisonnement pour donner la priorite aux actes criminels definis en fonction des victimes plut6t que des drogues utilisees, accorder mains d'importance aux sanctions visant j'usage du cannabis et imposer comme condition a {octroi de la probation {abstinence a j'egard des drogues illicites co Qteuses.

Drug a buse and crime are so tightly linked in public discourse, especially in the United States, as to form a single topiC, almost a single word: "drugsandcrime." Either drugs, or policies toward them, are held to be responsible for a large proportion of (non -drug) offenses, both against persons and against property. Yet careful consideration of the multiple relation ships connecting drugs and drug policy to the crime problem suggests that neither current approaches nor the proposals of their most vocal critics are accurately aimed at the target of minimizing predatory activity. Neither an undifferentiated tightening nor a n undiffere ntiated loosening of current policies is likely to achieve the best results from a crime-control perspective. Moreover. neither current policies nor "harm reduction" proposals have a nything substantial to offer with respect to the drug most strongly linked with crime - alcohol. Redirecting drug policy to better serve the aims of crime co ntrol would require the abandonment of dearly held beliefs a nd long-established practices . But the potential gains would be large. Drugs and drug policies can cause crime in m a ny ways: 1) Intoxication can reduce the barriers to law-breaking created by conscience and by the fea r of consequences. 2) Intoxication can also engender carelessness or aggressiveness on the part of potential victims. 3) Expenditures on drugs and reduced licit earnings opportunities can encourage income-producing crime, including theft. 4) Illicit e nterprise can engender violence, since illicit entrepreneurs cannot use the courts to settle disputes or rely on the police to protect them from robbery. 5) Illicit enterprise can furnish both the motivation a nd the funds for the acquisition , possession a nd carrying of firearms a nd other weapons , with predicta ble consequences on the deadliness of confrontations. 6) The carrying of weapons by participants in illicit markets can create additional demand for weapons on the part of those with w hom they interact. 7) The short -term economic opportunities created by illicit markets can divert young peo ple from gaining education and licit-marke t job experience, a nd cause them to acquire both criminal habits and c riminal records . All of this tends to diminish their opportunities in the non-criminal economy, thus increasing their propensity to commit income-producing crimes. 8) E nforcement, adjudication and punishm e nt resources devoted to e nforcing the drug laws are not available to enforce the laws concerning crimes against pe rson and property. All of the above are state me nts of possibility a nd tendency. not a bso lute natural laws. Whether a nd to what exte nt they ap ply to a ny given drug, drug-taker a nd social s ituation is a matter for empirical determina tion. Because alcohol intoxication is by far the most co m mon va riety, a nd because alcohol can be quite pote nt at unleashing aggression, alcohol is associated with far

POLICY OPTIONS OCTOB ER 1998

III

La politique aI'egard de la drogue more intoxicated crimes. especially acts of deadly violence. than all the other drugs combined. That makes alcohol the obvious target for efforts to reduce intoxi cated crime. whether by reducing the frequency of drunkenness across the population . reducing the frequency of intoxication among the subgroup of alcohol users prone to break the law when under the influence. or reducing the probability and average severity of criminal activity from any given drunken incident (by. for examp le. requiring bar patrons to check their weapons at the door). Higher alcohol taxes. limits on the numbers and hours of alcohol sales establishments. limits on alcohol promotion. and counter-marketing designed to deglamorize drunkenness may all have a role to play in reducing alcohol-related crime. If community corrections institutions such as probation and parole departments were better staffed. there would be some hope of enforcing bans on drinking. or at least public drinking. by those under criminal justice supervision as a result of prior convictions. A more radical alternative would be to make the privilege of buying alcohol revocable for misconduct and to require licensed sellers to verify the eligibility of their buyers. as they must now verify that buyers are of lawful age ; this would in effect make drinking a licensed activity . like driving. By contrast with intoxicated crime. crime associated with the need for money is largely. and crime associ ated with drug distribution almost entirely. a product of the "controlled substances. " This has led to the assertion that repealing the drug laws would necessarily reduce non-drug crime. But whether. and for which drugs. that assertion is true depends largely on what the level of intoxicated crime would be under whatever control regime replaced the current prohibition. That. in turn. would depend on post-prohibition consumption levels. the pharmacology of the drug in question. both alone and in combination with alcohol. and the relationship (substitution or complementarity) between drinking and the use of the newly legalized substance. For cannabis. which is already cheap. which does not produce much intoxicated crime on its own. and which is at most a weak complement to alcohol. the increase in intoxicated crime would likely be small. But so too would be the reduction in illicit-market crime and in crime to obtain funds . since cannabis under prohibition produces very little of these. Thus changing the cannabis laws would produce at most a minor reduction in crime. unless cannabis were actually a substi tute for alcohol or cannabis legalization substantially decreased the propensi ty of cannabis users to try other. more expensive. illicit drugs. For cocaine. which under prohibition is responsible for a large amount of crime. the potential gains would be much greater. but so would the potential losses. Legal (pharmaceutical) cocaine is cheaper than illegal cocaine by a factor of about 20. so one would expect a large increase in consumption due to a change in legal status. Cocaine is a strong complement to alcohol. and

cocaine and alcohol in combination act to greatly increase aggressiveness . so the currently small proportion of intoxicated crimes due to cocaine use would be expected to rise substantially if cocaine were available at legal -market prices. There might be some gains from redirecting prison cells from cocaine dealers to robbe rs and burglars; on the other hand . some people deprived of illicit opportunity in the cocaine market might switch to robbery or burglary instead. The net effect is anyone's guess: Jonathan Caulkins suggests plausibly that the result of legalization might be to somewhat reduce property crime while increasing domestic violence. Of course. even if legalizing cocaine (or. more plausibly. heroin) could be shown to have clear net benefits in terms of crime control. one would still have to consider the effects on other aspects of social well -being of a step likely to increase the size of the addiction problem. The arguments about crime control and prohibition have been well canvassed. Less attention has been paid to the potential for reconfiguring drug policies to reduce crime within the context of the current demarcation between licit and illicit psychoactives. But that potential is quite large. To understand how this might be done . it is necessary to keep in mind two fundamental insights: that the drug markets adjust themselves to enforcement pressure. and that reducing drug abuse is not the same as reducing crime. Market adaptations occur in two distinct ways . Traffickers and trafficking organizations deliberately adapt to reduce their vulnerability to the enforcement tactics they observe. In addition to this intended adaptation at the individual level. there is an "invisible-hand" adaptation at the level of the market as a whole ; when enforcement succeeds in causing a shortage of some factor of production such as labour for retail distribution. price adjustments call forth additional supply. This second point is of great importance. Much discussion of drug law enforcement implicitly assumes that arresting and imprisoning a drug dealer had the same effect on the drug market that arresting and imprisoning a burglar has on the rate of housebreaking. But the two situations are quite unlike in terms of their economic logiC. A dealer taken out of action by confinement creates a market niche for a new dealer (in the form of "orphaned " customers) . By contrast. the confinement of a burglar has no analogous effect on the opportunities of other burglars. This may help explain why the explosion of imprisonment in the US has bee n accompanied by falling rates of predatory crime . but has not succeeded in reducing the availability or increasing the prices of cocaine and heroin. Unless drug enforcement is designed with this in mind. it tends to create much activity but little benefit. The two levels of adaptation. by minimizing the potential effects of drug law enforcement on consumption. also limit its capacity to reduce intoxicated crime. This. then. leads to the second key analytic point: that

OPTIONS POLITIQUES OCTOBR E 1998

III

Drug Policy reducing drug consumption is not the same as reducing crime, and that drug law enforcement might properly concentrate on crime reduction rather than drug abuse reduction. The rational purpose behind the drug laws is to reduce drug abuse. If drug law e nforcement is con ceived primarily as furthering that purpose, then it seems to follow that drug law enforcement ought to aim primarily at reducing drug abuse, by increasing prices, decreasing availability and deterring drug acquisition. But the drug laws also create the illicit markets, and the predatory crime that surrounds them. Thus another purpose of drug law enforcement ought to be to minimize the unwanted side-effects of the laws: to maintain the ben efits of prohibition with as few of its costs as possible. Holding vo lume constant, a dr u g market will create mo re non -drug crime if the transactions are flagrant (either in public spaces or in "dedicated" locations such as crack houses) , if juveniles are employed and if partici pants use violence to settle disputes or merely acquire weapons with the proceeds of the trade. All of these ma rket characteristics can be influ e nced by w e ll designed enforcement . The e ffec t of drug-related imprisonment on crime depends in part on the extent to which those imprisoned, especially those imprisoned for long terms, would otherwise be committing large numbers of serious non -drug crimes. This, too , can be made a matter of policy choice. Flagrant drug markets generate criminality directly - their vulnerability to robbery a nd extortion encourages participants to arm themselves - and indirectly thro ugh the creation of the sort of disorder that advertises an area as a safe place to commit crimes (the "broken windows" effect) . Where there are flagrant drug markets, the goal of enforceme nt s hould be to break them up , using as little e nforcement a nd punishment resources as is necessary to complete the task. The existence of a n active drug market requires a kind of tacit agreement among buyers and sellers; consequently, it is not the case that a market disrupted by enforcement activity will quickly reform elsew here. Disrupting a market requires careful analysis of the factors cu rrently making the market location an attractive one fo r drug activity , and the identification of actions - including , but by no means limited to, massive arrests - that can be taken by the police and other public and private agenCies to make the location less hospitable to the traffic. This may involve measures as simple as changing the direction of traffic flo w to be less co nve.n ient for drug buyers driving in , or cutting back underbrush that provides cover for dealing activity. The ingenious suggestio n of David MacLean Kennedy that blanketing a dealing area with leaflets pro mising inten-

sive en forcement action starting at some near-future date might greatly facilitate the process of market disruption while also economizing on the need for actual arrests deserves to be tried out. The result of successful market disruption should be expected to be an increase in discreet forms of drug dea ling: those that occur in multi-purpose private or semi-private locations, such as bars, a nd those that rely on pagers and cell phones to arrange buyer/dealer meetings or home delivery on the pizza model. That effect is unfortunate from the viewpoint of drug a bu se. but much less so from the viewpoint of crime control. Whether enforcement agents target retail transactions, as in the market disruption strategies discussed a bove , or pursue the harderto -make but more g lam orous in vestigations that target higher-level deal e rs. they must make choices about which dea lers to select for attention . The current approach of most agenCies is based on a co mbination of estimated transaction volumes - "going after Mr. Big" - a nd tactical conSiderations such as the availability of cooperative informants . If the control of non-d rug crime were recognized as a primary goal of drug law enforcement, other considera tions would loom larger. Dealers known to use violence , or to e mploy juveniles, or to support neighbourhood -d is rupting flagrant activity would receive more attention than is justified by the mere quantity of drugs they ha ndle. This would c ha nge the conduct of the overall industry both by shortening the operating lives of the more noxious orga nizations and by provid ing an incentive for traffickers to eschew violence. the use of juveniles, etc.. in order to avoid being targeted. Boston's Ope ration Cease-F ire has demo nstrated the capacity of tightly focused and clearly communicated enforcement priorities to reduce the incidence of deadly violence a m ong groups of people who continue to break many other laws, including the drug laws. Sentencing laws focused on the drug involved and the qua ntity ha ndled reinforce the enfo rcement ten dency to downplay the non-quantitative characteristics th at distin g uish one d ealer or organization from another. Moreover, a dealer already facing a very long mandatory or guidelined-based sentence based on his volume has little incentive to change the conduct of his business to avoid enhanced sentences fo r the employm ent of viol ence or juveniles . These conside rations , combined with the phenomenon of replacement. argue for reducing the prison time now served by those whose on ly offense is drug dealing, and redirecting prison cells toward dealers who use guns or teenagers in their busi ness a nd toward those conv icted of non-drug crimes. While additiona l e nforcement activity has limited capac ity to red uce drug ab use, the corrections system ,

We should consider reconfiguring drug pol icies to reduce crime within the context of the current demarcation between licit and illicit drugs.

..

POLICY OPTIONS OCTO BER 1998

La politique aI'egard de la drogue and especially community corrections agencies, could make a major contribution in this area. In the US, most cocaine and heroin addicts are familiar clients of these agencies, if only because of the expedients required to m a intain a drug habit typica lly costing more than $10 ,000 per year. Identifying hard-drug users on probation or parole , requiring them to s ubmit to frequent (say, tWice-weekly) drug testing, and imposing mild , but swift and certain sanctions (say, two days' confinement) for every test result indicating recent drug use would , by my estimates, shrink the heroin a nd coca ine markets in the US by abo ut 40 percent . This would reduce both the crime committed by these addict/offenders to support their habits and the crime associated with the illicit markets no longer being fed by their dollars. Drug treatment has been proven to be a more costeffective method than confinement for reducing drug use and crime: a bout two-thirds of the benefit for a bout one-tenth the a nnual cost. But the chall enge of inducing those persons to undertake treatment and stick with it, a nd inducing treatment providers to accept clients likely to be costly and discouraging to treat, is by no means a simple one, even when adequate reso u rces are available. One advantage of a testing and sanctions program is that it would identify those unable to desist on their own and give them a stro ng incentive for treatment entry , retention , and compliance. With or with out testi ng a nd sanctions, however, increased funding for properly targeted drug treatment remains among the lowest-cost and hi ghest-certa inty ap proac hes to crime control. That methadone maintenance therapy s hould be under attack from public officials who cru sade as crime-fighters is among the most bizarre aspects of the politics of drug policy. Despite the recent encouraging trend in violence in the US, predatory crime remains a major c hallenge throughout Europe a nd the Americas. Its costs are not limited to the direct losses to the victims, w hich in the aggregate are less severe tha n those associated with , for example, automobile accidents. T he losses incurred in avoiding victimization , a nd the loss of social trust that results, are both much more substantial components of the total social cost of crime. In this case, the public perception may be nearer the mark than is the predominant academic consensus. Drug policy, covering both alcohol and the currently illicit drugs, ought to be a major component of a rational crime control strategy, and crime co ntrol ought to be one of the dominant themes in des igni ng drug pol icy . But none o f the s logans now dominating the drug policy debate is adequate to the co mplex reality linking drugs, drug policy, and predatory crime. On ly if we start to think more clearly ca n we start to act more w isely.

Mark Kleiman is Professor of Policy Studies at UCLA and the editor of the Drug Policy Analysis Bulletin.

by Wayne Hal l

CREATING SPACE

FORA MORE REASONED DEBATE ABOUT DRUG POLICY Aux Etats-Unis, Ie debat concernant les politiques relatives aux stupefiants est marque par des positions diametralement opposees et par J'affrontement de protagonistes tout aussi dogmatiques les uns que les autres. Or, en raison de leur puissance economique et militaire, de leur presence dominante dans les affaires internationales, des investissements massifs qu ils consacrent a linterdiction des stupefiants et a la recherche sur les drogues, et enfin de limportance demesuree de leurs medias sur la scene mondiale, les Etats-Unis exercent une influence considerable sur des pays de langue anglaise comme l'Australie, le Canada et la Grande-Bretagne. Si Ie def]at au sujet des drogues iiiicites aux Etats-Unis devenait plus serein et plus rationnei, cela aurait en retour des effets benefiques sur ces pays. L'essai qui suit propose certaines approches propres a favoriser ce resultat.

OPTIONS POLITIQUES OCTOBR E 1998