Politicians: Have you talked to your constituents about drug policy?
Thanks to Deven and the rest of the Concurring Opinions crew for the opportunity to guest-blog this month, I’m very excited to be here. I’ll be blogging mostly about drug policy issues, though I will likely touch on some other topics along the way as well (warning to those easily bored: this may involve me giving into my nerdiest law nerd-temptations and writing a post or two about facial and as-applied challenges.)
In my first post here though, I’d like to raise the question of why it is that reforming drug policy in the United States continues to be such a taboo political topic. This something that I think about often, but it is especially fresh in my mind with some less-surprising-than-it-should-be-news from today about Senator Jim Webb’s (D-VA) bill to create a historic blue-ribbon commission to study our nation’s criminal justice system, with a focus on reducing our unusually high incarceration rate. Sen. Charles Grassley (R-IA), has proposed an amendment to the bill that would prohibit the commission from making any “findings related to . . . criminal justice policies and practices or reform recommendations that involve, support, or otherwise discuss the decriminalization of any offense under the Controlled Substances Act or the legalization of any controlled substance listed under the Controlled Substances Act.”
Grassley’s proposal would be odd enough if it merely prevented the panel from recommending the decriminalization or legalization of any controlled substance. After all, it isn’t as if Webb’s commission will be writing the laws themselves; their task will to make recommendations that law-makers would be free to ignore or follow as they choose. Grassely’s proposal goes beyond restrictions on recommendations, however, by seeking to prohibit even the mere discussion of decriminalizing or legalizing any controlled substance. While Grassley is at it, maybe he should also instruct the commission members to shield their eyes from recent reports by the United Nations and the CATO Institute that found Portugal’s 8-year-old drug decriminalization policy has been a great success.
Of course, Grassley is far from alone among politicians in his aversion to even discussing alternatives to our current drug policy. In many ways, President Obama’s “drug czar” Gil Kerlikowske has been a breath of fresh air for his willingness to entertain and even advocate for certain drug policy reforms. But, when asked about legalization, his stock answer is that “legalization is not in the president’s vocabulary, and it’s not in mine.” Even the judiciary has gotten into the act, with the Supreme Court’s 2007 decision in Morse v. Frederick, which held that the First Amendment does not apply to protect student speech that school officials reasonably view as promoting illegal drug use.
So: why are we so afraid even to discuss ideas like decriminalization or legalization? For some of my quick, initial thoughts (and a request for yours as well), follow me to the flip…
One answer might be that politicians are afraid of a backlash at the polls, and I do not doubt that this is part of the reason. At the height of the drug war in the 1980′s it may have even been a major reason. But, today, I don’t think that we can explain it away that easily. For one thing, some major drug policy reforms are now relatively popular among voters. Though only 40-45% of Americans favor legalizing marijuana, for example, the idea is still more popular than a number of issues that are considered to be perfectly within the mainstream of political thought, including decreasing immigration levels or support for the war in Iraq.
And, polls aside, the issue I’m raising here is a more fundamental one. My concern is not the opposition to, say, legalizing marijuana; it is the reluctance to even discuss these issue (or, in Kerlikowske’s case, to acknowledge that he or President Obama knows what the definition of the word “legalize” is.) In this sense, I think that drug policy occupies a fairly unique place in our political discourse. There are plenty of issues with strong feelings on both sides and still many others where both parties are mostly united in their views. But, I have a very hard time coming up with examples of other issues where we as a society seem to live in fear of the simple mention or study of a key set of policy options.
I believe there are a number of different factors that may explain why drug policy reform is so uniquely disfavored in our political discourse, and I’ll be returning to this question throughout my guest-blogging stint this month with additional thoughts. For now though, I’ll close this post by very briefly offering a suggestion for one dynamic that I believe may provide an explanation. It is that our drug policy is conceived of not just as any other policy, but as a “war on drugs” whose mission is a “drug free” society. By framing our drug policy in these terms, the language by which we judge our policy is no longer “costs” vs. “benefits” but “winning” vs. “losing.” And, as a result, the idea of a Portuguese-style decriminalization system with civil drug courts is not just another policy option–it becomes akin to surrender. (For anyone who may be interested in the rhetoric of the war on drugs in more detail, I recommend this fine book by Andrew B. Whitford and Jeff Yates that was published just this year.)