BREAKING THE DRUG-CRIME LINK

The American criminal justice system now spends a significant proportion of
its resources enforcing the drug laws. More than 10 percent of all arrests
and about 20 percent of all incarcerations involve drug law violations.
(Most of the 1.5 million annual drug arrests are for simple possession,
while the majority of the 325,000 people behind bars on drug charges are
there for dealing.) Drug-related arrests are up 50 percent over the past 10
years, and drug-related incarceration is up 80 percent.

And the burden of drug law enforcement falls especially on urban minority
communities: Will Brownsberger and Anne Morrison Piehl of Harvard found
that the poorest neighborhoods in Massachusetts, with a little more than 10
percent of the state's population, accounted for 57 percent of state prison
commitments for drug offenses, while Peter Reuter and his colleagues at
RAND estimated that nearly a third of African-American males born in the
District of Columbia in the 1960s were charged with selling drugs between
the ages of 18 and 24.

Such vigorous enforcement of drug prohibition, while controversial, enjoys
substantial support.

This is partly because drug laws are seen as protecting people -
especially, but not exclusively, children - from drug abuse and addiction.

But it is also because drug prohibition and enforcement are widely believed
to prevent burglary, robbery, assault, and other predatory crime, a view
apparently borne out by the violence that surrounds much drug dealing and
the high rates of drug use among active criminals. Because drug trafficking
is inherently violent and because illicit drug use is a catalyst for
criminal behavior, the argument goes, enforcement efforts to suppress drug
selling and drug taking will tend to reduce crime.

But advocates of drug legalization and many other critics of current drug
control efforts argue the opposite.

They say that drug policy, and not drug abuse, is principally responsible
for the observed relationship between drugs and crime.

Drug laws and their enforcement make illicit drugs more expensive. Higher
drug prices increase nondrug crime because many heavy users commit crimes
to finance their habits.

Violent crime among dealers is even more obviously attributable to drug
prohibition; when alcohol was an illicit drug, alcohol dealers settled
their differences with firearms, just as cocaine dealers do today.

But two liquor store owners are now no more likely to shoot one another
than are two taxi drivers.

Eliminate the drug laws, it is said, and most drug-related crime will also
disappear.

Each of these views has an element of truth.

By creating black markets, prohibition can cause crime.

But so too can intoxication and addiction, which would increase if drugs
were freely available.

Further complicating these links between drugs and crime is the fact that
the pharmacological effects of intoxication and addiction, the patterns of
use, and the economics of buying and selling differ greatly across drugs.

It would not be surprising if some policies were crime-reducing when
applied to, say, methamphetamine but crime-increasing with respect to
marijuana.

And vice-versa.

Thus, the question that supporters and opponents of drug prohibition
endlessly debate, "Do drugs, or drug laws, cause crime?" presents a false
dichotomy. The answer to both halves of the question is "Yes." In this
essay, we will try to answer a more productive question: What drug policies
would work best to minimize predatory crime?

The question is difficult to answer, given the complexity of the problem
and the uncertainty surrounding key factual questions.

A reasonable first step is to review the empirical evidence about the
potential links between drugs and such predatory crimes as theft and assault.

The drugs-crime connections The three most important causal links between
drugs and crime are the behavioral effects of drug use, the urgent need of
addicts for money to feed their habits, and the side-effects of illicit
markets. We will examine each in turn.

Intoxication and addiction, in certain circumstances, appear to encourage
careless and combative behavior.

The key empirical observation here is that more crimes - and, in
particular, more violent crimes - are committed under the influence of
alcohol than under the influence of all illegal drugs combined. When state
and federal prisoners were asked about the circumstances of the offenses
that landed them in prison, 24 percent said they were under the influence
of illicit drugs (but not alcohol) at the time, 30 percent cited
intoxication with alcohol alone, and 17 percent named drugs and alcohol
together.

That alcohol, a legal and inexpensive drug, is implicated in so much crime
suggests that substance abuse itself, and not just economic motivation or
the perverse effects of illicit markets, can play a significant role in crime.

This connection is hardly surprising. Anything that weakens self-control
and reduces foresight is likely to increase lawbreaking activities. Most
crime doesn't pay, and being high is one good way to forget that fact.
(Driving drunk, for example, rarely stands up to cost-benefit analysis from
the drunk driver's viewpoint, yet many otherwise sensible people engage in
it.) Some forms of intoxication also make certain crimes seem more
rewarding, as well as making punishments seem less threatening. And most of
us know people who become aggressive when drunk or high.

However, the immediate effects of intoxication are not the only, or
necessarily the most significant, connection between drug taking and crime.
Chronic intoxication impairs school and job performance, makes its victims
less able to delay gratification, and damages relationships with friends
and family.

All of these tend to increase criminality.

The second important link between drugs and crime involves drug users' need
for large amounts of quick cash due to the high costs of maintaining an
illegal drug habit.

The average heavy heroin or cocaine user consumes about $10,000 to $15,000
worth of drugs per year, a sum that most of them cannot generate legally.

In one survey of convicted inmates, 39 percent of cocaine and crack users
claimed to have committed their current offense in order to get money to
buy drugs.

Nonetheless, the economic links between drug use and income-generating
crime go both ways. Drug users commit crimes to obtain drug money - in part
because their drug use reduces opportunities for legitimate work - but
there is also the "paycheck effect." Just as some heavy drinkers splurge at
the local bar on payday, drug-involved offenders may buy drugs because
crime gives them the money to do so. Thus income-generating crime may lead
to drug use, as well as the other way around.

The drug trade provides the third connection between drugs and crime.
Because selling drugs is illegal, business arrangements among dealers
cannot be enforced by law. Consequently, territorial disputes among
dealers, employer-employee disagreements, and arguments over the price,
quantity, and quality of drugs are all subject to settlement by force.
Since dealers have an incentive to be at least as well-armed as their
competitors, violent encounters among dealers, or between a dealer and a
customer, often prove deadly.

Moreover, perpetrators of inter-dealer or dealer-customer violence are
unlikely to be apprehended: Enforcement drives transactions into locations
that are hidden from the police, and victims - themselves involved in
illegal behavior - are unlikely to complain to the authorities. An
increasingly common form of drug-market violence is simple robbery-murder
by gangs that are in the drug trade only in the sense that hijackers of
truckloads of microchips are in the electronics business.

Still, it is not clear how much of the violence among drug dealers is
attributable to the drug trade itself, as opposed to the personal
propensities of the individuals employed in it, or to the economic, social,
and cultural conditions of drug-plagued communities. Violent drug dealers
tend to live and work in poor, inner-city neighborhoods, where violence is
common independent of the drug business.

On an individual level, a willingness to engage in violence is part of the
implicit job description of a drug dealer in many markets.

And the Darwinian logic of criminal enterprise suggests that surviving
dealers are those who are best able to use violence, intimidation, and
corruption to protect their positions.

Even the degree to which the drug trade provides the immediate pretext for
violence among drug dealers is hard to pin down. Many violent incidents
that are commonly described as drug-related - because they occur between
dealers, between members of drug-dealing gangs, or at a known dealing
location - turn out on close inspection to have personal rather than
commercial motives, involving gang territory, an insult, sexual
competition, or just a confrontation between two edgy, armed youngsters.

Finally, the drug trade also contributes to crime by diverting inner-city
youths away from school and legitimate employment. Not only does drug
dealing introduce them to criminal enterprise, it also increases their risk
of substance abuse and weakens their prospects for legitimate work (a
recorded conviction and prison time are two obvious reasons), all of which
make it more likely that they will engage in criminal activity, both in and
out of the drug business.

Distinctions among drugs Connections between drugs and crime vary across
drugs. Of the three leading illicit drugs - marijuana, cocaine, and heroin
- - marijuana is the least implicated in crime.

Marijuana users do not typically become violent, and marijuana habits are
less expensive to support than cocaine or heroin habits.

And marijuana is bought and sold in markets that, while not free of
violence, are less violent than cocaine and heroin markets.

This is in part because marijuana users make fewer purchases than do heroin
or cocaine users, and in part because much marijuana is sold in residential
settings by dealers who do not themselves have expensive habits.

Cocaine, on the other hand, is an expensive drug whose use and distribution
are often accompanied by violent behavior.

Heroin is less often tied to violence than cocaine, but because of the
persistence of heroin addiction and the more regular use of the drug, it is
possible that heroin addicts typically commit more income-generating crimes
over time than cocaine addicts.

This analysis suggests that a reduction in heroin or cocaine use is likely
to mean a bigger decrease in crime than a comparable reduction in cannabis
use. As for other illegal substances, methamphetamine would tend to
resemble heroin and cocaine in this regard, while MDMA ("Ecstasy") and
diverted pharmaceuticals, including painkillers such as Oxycontin and
Vicodin and the benzodiazepine tranquillizers such as Valium and Xanax,
would look more like cannabis.

Should We Legalize?

"Don't Legalize Drugs" was the title of a recent Wall Street Journal op-ed
by John Walters, the current "drug czar." Normally, an official of cabinet
rank would not write an op-ed opposing a policy change that has no serious
support in either house of Congress. But the legalization question has a
prominence that is wildly disproportionate to its immediate relevance,
perhaps because, at first glance, the fit between current drug policies and
such treasured ideas as consumer sovereignty, individual liberty, and
limited government seems so awkward.

Legalization advocates argue that repealing drug prohibitions would cut
crime by eliminating black markets, by removing users and sellers from the
criminal world, and by making resources now used to capture and imprison
dealers and users available for use in enforcement efforts against
predatory crime (and perhaps for crime-reducing drug-treatment programs).
Maybe so. But in its rhetorical contest with a hypothetical legalization,
prohibition is handicapped by its very reality.

Actual policies, as Aristotle first noted about actual regimes, always have
flaws that merely imagined ones lack. Planned policies, like many job
applicants, look terrific on paper.

There is no reason to doubt, however, that the same processes of symbolic
politics, bureaucratic management, and interest-group pressure that have
distorted the prohibition effort would produce a legalization regime
similarly remote from the ideal that we might design in a seminar room.

Whether a change in the legal status of currently illicit drugs would
increase or decrease crime would be hard to predict even if the details of
legalization proposals were better specified than they usually are. The
answer need not be, and probably is not, the same for all currently illicit
drugs. The odds are that making marijuana legally available to adults on
more or less the same terms as alcohol would reduce crime, because
marijuana intoxication, either as a current state or as a habit, does not
typically generate either anger or criminal recklessness. Even greatly
increased consumption would probably lead to little crime.

Yet that conclusion holds only if we assume what seems plausible but is by
no means certain: that increased marijuana use would not increase
consumption of cocaine or alcohol.

By contrast, the legalization of methamphetamine would undoubtedly increase
crime. Methamphetamine markets are still geographically isolated, but that
would change with legalization. And unless methamphetamine's reputation for
bringing out aggressive behavior is completely undeserved, the increase in
crime related to intoxication and addiction that would result from
legalization would easily outweigh any benefits gained from eliminating
currently localized illicit markets.

Of course, the main event on the legalization fight-card is not marijuana
or methamphetamine but cocaine, which is both the biggest illicit drug
market in dollar terms and the one that gets the bulk of law enforcement
attention. Would legalizing cocaine reduce crime?

No one knows.

The effects of cocaine legalization would be so numerous, so profound, and
so unpredictable that any strongly expressed opinion on the subject must
reflect some mix of insufficient intellectual humility and simple bluff.

We regard cocaine legalization as, on balance, a thoroughly bad idea, but
that view is based in part on our belief that better tailored policies
could maintain most of the advantages of cocaine prohibition without
constantly keeping a couple hundred thousand people behind bars on cocaine
charges. Compared to a straight-line projection of current policies - our
strong desire for better policies is not accompanied by any optimism about
their enactment - cocaine legalization might in fact reduce crime.

The crime related to cocaine markets would disappear, but crime due to
intoxication or addiction would increase, to some utterly unknown extent.
Meanwhile, crime committed to get money to buy cocaine might go up or down,
depending on the pricing scheme adopted and the price-elasticity of demand.
There is simply no way to know in advance the net effect.

And legalization on an "experimental" basis is an oxymoron: The resulting
explosion in the size of the markets and the number of addicts would make
reinstituting prohibition nearly impossible.

The problem of alcohol That alcohol alone is responsible for more crime and
violence (not to mention deaths due to overdose and disease, fetal damage,
accidents, and bad parenting) than all of the illicit drugs combined
suggests that legalization is no panacea.

Indeed, any serious conversation about altering the legal status of drugs
in the name of crime control should start with the topic of alcohol.

Until we figure out how to better manage the problems caused by our one
currently legal addictive intoxicant, it makes little sense to consider
legalizing other drugs.

Economic efficiency dictates that alcohol taxes should be high enough to
cover the costs that drinkers impose on others.

They are not even close. The right amount would put alcohol taxes at about
a dollar per drink, 10 times the current level.

Because alcohol consumption, and especially consumption by young drinkers
and heavy drinkers, is responsive to price, the effect on alcohol-related
crime (including domestic violence and child abuse) would likely be
substantial.

To be sure, such a tax would encourage the trafficking and consumption of
"moonshine" and other illegal alcohol products, bringing with them
black-market crime and dangerously adulterated drinks.

But evidence from those foreign countries where alcohol is taxed more
highly than in the United States - and from the early 1950s, when U.S.
alcohol taxes were, in purchasing-power terms, several times higher than
they are now - suggests that these effects would be minor.

It appears that the safety and convenience of legal alcohol, and loyalty to
legal brands, are sufficient to overwhelm the cost advantage of untaxed
products.

A more radical step would be to reduce the legal availability of alcohol to
problem drinkers.

This could be done by forbidding the sale of alcohol to persons convicted
of serious or multiple crimes committed under the influence - in effect, a
selective rather than a blanket prohibition. It seems curious that a drunk
driver should be deprived of his driving license while the "license" to
drink is treated as irrevocable. A prohibition on the sale of alcohol to
those with a history of alcohol-related misconduct, even with its
inevitable imperfections, would almost certainly be crime-reducing, perhaps
substantially so. In addition, it might free police resources by reducing
the population of chronic inebriates repeatedly arrested for minor offenses
in public order. (In 2000, there were an estimated 1.3 million arrests for
drunkenness, disorderly conduct, and vagrancy.)

Making Prohibition Work Better

Polarization around the legalization question conceals the enormous range
of policy choices available under the current legal regime, which bans the
nonmedical use of all intoxicants other than alcohol.

A better designed drug control regime could greatly reduce crime, while
leaving those prohibitions in place.

Drug control policies are typically categorized into enforcement,
prevention, and treatment.

Enforcement is the dominant activity of American drug policy.

Domestic law enforcement accounts for about half of the federal drug
control budget; including state and local activity, enforcement's share is
about three-quarters of total drug control spending.

Until recently, academic analyses of drug enforcement and crime viewed the
price of drugs as a key factor.

That analysis turned out to be wrong on two accounts. First, it was assumed
that tougher enforcement could substantially increase the price of drugs.

The theory was that when enforcement threatened drug traffickers and
dealers with the risks of arrest, imprisonment, and the loss of their
drugs, money, and physical assets, sellers would charge higher prices as
compensation for those risks. It was also assumed that the demand for drugs
was, in the short run, relatively unresponsive to price ("inelastic," in
economics terminology), meaning that an enforcement-led price increase
would result in greater total expenditures on drugs.

The implications of these assumptions were that enforcement would
indirectly lead users to commit more crimes for drug money, and that
market-related violence would also rise, as dealers battled over a larger
revenue pool. It was in principle possible that the fall in abuse-related
crime stemming from slightly reduced consumption would be greater than the
combined increases in crimes committed by dealers seeking competitive
advantage and by users looking for drug money.

But the arithmetic of relatively inelastic demand (again, in the short run)
was discouraging. (In the long run, higher prices would tend to reduce the
incidence of addiction and increase the rate of recovery, thus reducing crime.)

Today, these underlying assumptions look shaky.

Recent research indicates that the demand for cocaine and heroin is far
more responsive to price than previously assumed, so much so that the old
critique of drug law enforcement as counterproductive in terms of predatory
crime seems to have been mistaken.

If we remained confident that more, or better, drug law enforcement could
substantially raise prices, boosting such enforcement in the cocaine and
heroin markets would now appear to be an effective, and perhaps
cost-effective, crime-control measure.

However, confidence in the ability of enforcement to raise prices has been
slipping, even as appreciation of the value of such price increases has
been growing.

Over the past two decades, a dramatic increase in enforcement efforts has
been accompanied by an equally dramatic drop in cocaine and heroin prices.

In the 1990s, for example, the number of incarcerated drug offenders
roughly doubled, while inflation-adjusted cocaine and heroin prices fell by
half. Why cocaine and heroin prices have fallen in the face of increased
punishment for drug law violations is something of a puzzle, but the easy
replacement of dealers who have been removed from the drug trade is surely
part of the explanation.

Suppose that a drug dealer is arrested and imprisoned. That, in effect,
creates a job opening for a new dealer.

When the first dealer is released from prison and, as is likely, reenters
the drug trade, there are now two dealers where once there was one. Writ
large, this story suggests that conventional drug enforcement, by
imprisoning hundreds of thousands of dealers and thereby drawing hundreds
of thousands of others into the drug trade, may significantly increase the
long-run supply of dealers.

The logical result is downward pressure on prices.

Drug Enforcement for Crime Control

That analysis also provides important backing for the view that
retail-oriented enforcement strategies should concentrate on selectively
disrupting markets rather than merely making many arrests.

The purpose of selective market disruption is to pick out especially
violent segments of the market - defined by drug, geography, dealing style,
and the identities of the dealing organizations involved - and make it
difficult for buyers and sellers in those segments to connect. In
particular, moving street markets indoors and disrupting "drug house"
operations by pressuring sellers to adopt more discreet dealing strategies
can pay big crime-control dividends.

Open street markets present numerous opportunities for conflict and
violence - disputes over turf, disputes over customers, disputes between
dealers and police, and simple robbery.

Indoor markets are less disruptive of neighborhoods and less prone to violence.

As Harvard researcher David Kennedy, a leading advocate of
arrest-minimizing enforcement strategies, puts it: "All drug markets
present trouble for communities, but street drug markets are the worst
trouble of all. Eliminating them would be a huge stride toward quelling
drug-related violence and disorder." A notorious crack house, with
customers pulling up at all hours of the day and night, attracts disorder
and violence.

In contrast, a dealer with a cell phone and a pizza-delivery truck - the
kind that became more common in New York after the 1990s drug crackdown
made flagrant dealing difficult - damages primarily the buyer and those
close to the buyer; the transaction itself is fairly innocuous.

Other things being equal, it is better to deploy enforcement resources
against drugs whose markets are small and growing than against drug markets
that are large and stable or shrinking.

Since the effectiveness of a given level of enforcement pressure on a
market is inversely proportional to the size of the market, enforcement
against a small market should have more impact than enforcement against a
large market.

Moreover, drug use often spreads in epidemic fashion, much like a
communicable disease.

New users are particularly "contagious," in the sense that they are most
likely to initiate others.

Long-term users, who are more likely to know the pitfalls of prolonged use
and often present an unappealing picture of the consequences of addiction,
are far less contagious. Therefore, preventing the initiation of new users
has a multiplier effect.

Whether enforcement can intervene early enough in an epidemic to make a
difference is an open question.

One barrier is informational: It's hard to identify epidemics until they're
already well underway.

A second obstacle is operational: Shutting down distribution networks
requires a degree of intelligence that is difficult to muster before a
rising drug has developed stable distribution networks.

As Jon Caulkins of Carnegie Mellon University has suggested, the early
stages of distribution involve social rather than commercial networks;
these are difficult to penetrate, particularly when the early users have
little contact with the criminal justice system.

A third impediment is organizational: Mature markets yield more and better
cases per unit of enforcement effort than emerging markets, a fact that
discourages individual agents and agencies from shifting attention early.
These factors make the temptation to "fight the last war" nearly
overwhelming. Still, despite all these difficulties, it's hard to see how
shifting enforcement resources to emerging drug threats (at least to
emerging threats with strong potential links to nondrug crime) would be
anything other than beneficial.

Crime prevention could also be enhanced by reforming sentencing policy.
Given limited prison capacity, it makes sense to give priority to housing
the most active and violent offenders.

Current federal policy is perhaps the most prominent example of the wrong
approach.

Under federal law, relatively minor participants in drug trafficking, some
with no prior arrests, frequently face long mandatory prison terms.

According to a Department of Justice analysis, in the early 1990s (when
drug offenders accounted for a smaller share of the federal prison
population than today) 21 percent of all federal prisoners were "low-level
drug law violators" with no record of violence or prior incarceration. Of
these, 42 percent were drug couriers (or "mules"), rather than dealers or
principals in trafficking organizations. Since those prison cells could
instead be holding more dangerous offenders, imposing long mandatory
sentences on minor drug offenders tends to increase predatory crime.

Prevention and Treatment

Prevention programs, aimed at reducing experimentation and occasional use
primarily by children and adolescents, enjoy strong support across the
political spectrum.

Even modestly successful prevention programs are unambiguously beneficial
in reducing crime. They offer the benefit of reduced drug use and reduced
drug dealing without any of the unwanted side-effects of enforcement.

That's the good news about prevention. The bad news is that few prevention
programs have demonstrated that they can consistently reduce the number of
their subjects who use drugs.

The single biggest and best known program, Drug Abuse Resistance Education
(DARE), consistently performs poorly in evaluations. The positive results
of some pilot programs have often proven difficult to replicate in other
settings.

And the link between reducing early drug initiation - the usual measure of
effectiveness applied to prevention programs - and preventing future
addiction and crime is assumed, rather than demonstrated. According to the
most thorough research, even the best prevention programs are only about as
cost-effective as typical enforcement efforts in reducing cocaine
consumption, and far less cost-effective than ordinary drug-treatment programs.

And that relatively unfavorable assessment may well be optimistic, since
such research arguably understates the educational cost of having children
spend time in drug-prevention sessions instead of English or math class.

One of the problems with prevention programs is that the majority of the
participants are not likely candidates for developing serious drug habits.
By contrast, treatment deals with users who have established drug problems.
Successful or even partially successful treatment of drug-involved
offenders is an unequivocal winner from a crime-control perspective. The
criminal activity of addict-offenders seems to rise and fall in step with
their drug consumption, and that relationship holds whether reductions in
drug use are unassisted or are the product of formalized treatment, and
whether participation in treatment is voluntary or coerced.

Moreover, a treatment-induced reduction in demand does not bring with it
the side-effects of an enforcement-induced reduction - higher drug prices
and the depletion of criminal justice resources.

Since many drug-involved offenders sell drugs in addition to using them,
and some may exit the drug trade if they gain control over their own
habits, treatment has supply-reduction as well as demand-reduction benefits.

While most popular and much scholarly discussion of treatment focuses on
rates of "success" - conventionally defined as complete abstinence one year
later - treatment can have powerful crime-control benefits even if it does
not permanently end drug use. Findings from the Treatment Outcome
Prospective Study (TOPS) - to date the most comprehensive study of
treatment effectiveness - indicate that most of the treatment-related
reduction in criminal activity occurs during treatment.

Indeed, the within-treatment crime reductions are sufficient to justify the
cost of treating criminally active users, even assuming no effect on
post-treatment behavior.

Thus the inadequate availability and poor quality of substance-abuse
treatment constitute a missed opportunity for crime control.

Advocates of drug treatment, including the providers themselves, are
understandably frustrated and outraged that, in a political atmosphere
where the punitive side of the crime-control effort enjoys widespread
support and growing funding, drug treatment remains neglected and underfunded.

A special source of outrage is the underprovision and overregulation of
opiate maintenance therapy.

In terms of crime-control efficacy and other measurable improvements in the
behavior and well-being of its clients, methadone treatment is by far the
most dramatically successful kind of drug treatment. Unlike most forms of
treatment, it has little trouble attracting and retaining clients.

Yet, because it does not promise or even attempt to cure addiction,
methadone, along with other maintenance therapies, remains bitterly
controversial. Today, it is so buried under various regulatory burdens that
only about one-eighth of U.S. heroin addicts are currently enrolled in
methadone programs.

But recent regulatory changes that make methadone more widely available and
that will ease the approval of buprenorphine, another maintenance agent,
may mark the start of a new era for treatment.

Drug Testing and Sanctions

Several factors limit the capacity of drug treatment, whether voluntary or
coerced, to reduce crime.

These include the limited availability of treatment, deficiencies in
technique and quality, the reluctance of many drug-involved offenders to
undergo treatment, and the administrative and procedural difficulties of
coerced treatment.

It is commonly thought that the limits on treatment are also the limits on
the criminal justice system's ability to influence the drug taking of those
under its jurisdiction. This view, however, assumes that most users of
expensive illicit drugs suffer from clinically diagnosable substance-abuse
or dependency disorders, that they have no volitional control over their
drug taking, and that all such disorders are invariably chronic and go into
remission only with professional intervention. Happily, not one of these
propositions is true.

Many users, even frequent users, of cocaine, heroin, and methamphetamine do
not meet clinical criteria for substance abuse or dependency. ("Substance
abuse" as a legal matter merely means use of a prohibited drug, or use of a
prescription drug for nonmedical reasons or without a valid prescription;
"substance abuse" as a medical matter is defined by criteria such as
escalation of dosage and frequency, narrowing of the behavioral repertoire,
loss of control over use, and continued use despite adverse consequences.)
Even for those who do meet these clinical criteria, actual consumption is
not a constant but rather varies with the availability of the drug and the
consequences, especially the more-or-less immediate consequences, of taking
it. Incentives influence drug use, even within the treatment context.
Monitoring drug use by urine testing enhances treatment outcomes, as does
the provision of even very small rewards for compliance. Moreover, while
the minority of substance-abusing or substance-dependent individuals who
suffer from chronic forms of those disorders makes up a large proportion of
the population in treatment, the most common pattern of substance abuse is
a single active period followed by "spontaneous" (i.e., not
treatment-mediated) remission.

All this being the case, persuading or forcing drug-using offenders into
treatment is not the only way to reduce their drug consumption. An
alternative to requiring treatment is to mandate desistance from the use of
illicit drugs for persons on probation, parole, or pretrial release.
Desistance can be enforced by frequent drug tests, with predictable and
nearly immediate sanctions for each missed test or incident of detected
drug use. While in the long term drug-involved offenders who remain
drug-involved are likely to be rearrested and eventually incarcerated,
those long-term and probabilistic threats, even if the penalties involved
are severe, may be less effective than short-term, but more certain, sanctions.

For those offenders whose drug use is subject to their volitional control,
testing-and-sanctions programs can reduce the frequency of drug use. Those
unable to control themselves, even under threat, will be quickly
identified, and in a way that is likely to break through the denial that
often characterizes substance-abuse disorders.

Identifying these persons will enable the system to direct treatment
resources to those most in need of them. It will also help create a
"therapeutic alliance" between treatment providers and clients by giving
clients strong incentives to succeed, as opposed merely to wanting the
therapists off their backs.

Since recent arrestees account for most of the cocaine and heroin sold in
the United States, and therefore for most of the revenues of the illicit
markets, an effective testing-and-sanctions program would have a larger
impact on the volume of the illicit trade - and presumably on the
side-effects it generates, including the need for drug law enforcement and
related imprisonment - than any other initiative that could be undertaken.
By one estimate, a national program of this type could reasonably be
expected to shrink total hard-drug volumes by 40 percent.

Keys to Success

To succeed, such a program would need money and facilities for drug
testing, probation caseloads small enough to be adequately monitored, and
either judges willing to sanction predictably or probation departments with
the authority to impose administrative sanctions.

It would require police officers - or probation officers with arrest
authority - to seek out absconders, the capability to carry out sanctions
(for example, supervisors for "community service" labor, and confinement
capacity appropriate for one- and two-day stays), and treatment capacity
for those who proved unable to quit without professional help. Offering
rewards for compliance, if only the remission of previously imposed fines,
in addition to punishments for noncompliance would improve success rates
and reduce overall costs.

Another key to success is the immediacy and certainty of the sanctions and
rewards. This in turn depends on keeping the population assigned to the
program small compared to the resources available, until the program has
had a chance to establish the credibility of its threats.

That credibility will minimize violation rates and thus the need for the
actual imposition of sanctions.

Maryland's well-publicized venture into testing and sanctions, under the
rubric "Breaking the Cycle," ran aground on its failure to establish
sanctions credibility, the result of an overly large target population,
lack of administrative follow-through, and judicial reluctance to punish
detected drug use.

Once up and running, testing-and-sanctions programs can pay great
dividends. By one calculation, a successful program can operate on just
over $3,000 per offender per year, or about 15 percent of the cost of
imprisonment. Thus a national program, covering all offenders with
identifiable hard-drug problems, could be implemented for between $6 and $8
billion per year, a sum that would be more than recovered by the consequent
reductions in imprisonment for both the drug-involved offenders and the
drug dealers who would have to leave the business as their best customers
were denied them.

While there is clear evidence that testing and sanctions, even imperfectly
administered, can substantially reduce drug use among offenders, only a
full-scale trial of the idea would tell us whether the promises of its
advocates are overblown.

But the big question is not whether offenders would respond to the program,
but whether our creaky criminal justice machinery is capable of putting it
into practice.

The need for cooperation among multiple agencies - state, county, and
municipal; judicial, administrative, and nongovernmental - greatly
increases the difficulty of successful implementation. Formulaic
sanctioning requires limiting judicial discretion, either by getting the
judges out of the process entirely or by persuading judges to put their
actions on autopilot.

The former is unpopular with judges, who remain quite influential in
policymaking, and the latter is difficult to bring about.

As one researcher remarked after evaluating such a program, changing the
behavior of addicts is easy, but changing the behavior of judges is hard.

Ideologically, the testing-and-sanctions approach tends to be too
tough-sounding and insufficiently therapeutic to appeal to treatment
advocates - who are morally outraged at the notion that someone with a
disease could be punished for manifesting one of its symptoms - and yet not
draconian enough to excite the drug warriors.

The latter group would prefer to use drug test results as the basis for
revoking probation or parole status and incarcerating the offender for
months rather than hours, an approach inconsistent with both certainty or
swiftness in sanctioning.

Whether these barriers can be overcome remains uncertain, but current
evidence is not encouraging. A study by the California Policy Research
Center found that California probationers, even when nominally subject to
drug testing, faced only sporadic tests and highly inconsistent sanctions.
In Maryland, where Lieutenant Governor Kathleen Kennedy Townsend attempted
a full-scale implementation of the idea, resistance from the courts, the
probation departments, and treatment advocates and their legislative allies
caused the sanctions portion of the program to falter badly.

Despite evidence that testing had reduced offender drug use substantially,
journalistic accounts stressed the program's difficulties, and the
resulting bad publicity probably contributed to Townsend's loss in last
year's gubernatorial election.

At the national level, President Bush, like his predecessor, has embraced
the idea rhetorically but failed to follow through in practice.

A Crime-Minimizing Drug Policy

The testing-and-sanctions idea is the only single proposal with the
potential to reduce drug-related crime swiftly and dramatically.
Unfortunately, that promise depends on the mobilization of more political
and administrative muscle than may in fact be available.

But other policy changes still offer the possibility of significant
reductions in drug-related crime - raising taxes on alcohol, forbidding
alcohol sales to the minority of drinkers most prone to breaking the law
under the influence, expanding drug treatment and in particular opiate
maintenance therapy, and redirecting drug law enforcement, prosecution, and
sentencing to minimize trafficking-related violence by targeting the most
flagrant markets and the most violent dealers.

No drug policy can deliver a drug-free society.

But smarter policies can give us a safer one.