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April 05, 2005

up, up, and away

Don Herzog: April 5, 2005

At the end of 1980, a leading American lawyer, responding in part to a New Mexico prison riot earlier that year that killed 33, reported that almost half the states had overcrowded prisons.  He called for such measures as more work programs outside prison for offenders.  A leading American newspaper promptly saluted his report.  Worrying about "the huge US prison population a population that is already second highest among Western nations," the paper cautioned Reagan's incoming administration that their "justice program must be structured in such a way as to actually help wrongdoers find their way back into useful roles in society if at all possible."

That lawyer was Chief Justice Warren Burger.  That newspaper was the Christian Science Monitor (12/30/80).

What's happened since 1980?  Here is one extraordinarily distressing picture, courtesy of the Department of Justice.

The image “http://www.ojp.usdoj.gov/bjs/glance/corr2.gif” cannot be displayed, because it contains errors.

They offer lots more data.  By the end of 2003, some 1.2m blacks were on probation.  (Race threads its hideous way through all these data, and those tempted by the repellent thought that blacks are just naturally more prone to commit crimes might ask themselves if middle-aged white men are just naturally more prone to embezzle corporate funds or violate insider trading laws.)  And — a reminder of another price we're paying for the war on drugs — the most serious offense of 25% of those on probation was violation of the drug laws.  Oh, and Texas excels not just at executing their criminals, but at putting them on probation and parole:  they rank first, by a good margin, on probation, second on parole.  (On a per capita basis, they come in fifth on both.  Washington state leads on probation, Pennsylvania on parole.  Go figure.)  There's huge churning:  over 2m Americans got off probation or parole during 2003, but over 2m Americans entered the system.  Over their life histories, then, many more Americans than these millions will be ensnared in the criminal justice system, surprisingly many of them as felons:  "An estimated 13 million Americans are either currently serving a sentence for a felony conviction or have been convicted of a felony in the past."   Ah, bureaucracy:  at 1999's end, "more than 59 million individual offenders were in the criminal history files of the State central repositories."  Privacy buffs will be glad to learn that almost 53m of those files were automated.

Not grinning yet?  Don't worry, I generously bring more cheery news.  It takes a lot of cells to incarcerate over 2.2m Americans.  It, um, er, takes more than we have, but we're doing it anyway.  "22 States and the Federal prison system reported operating at 100% or more of their highest capacity."  (Nope, not Texas.  Even though they hold more in prison than any other state, they're not even up to 90% of their prison capacity.  Since I'm really worried about overcrowding, should I salute the state's farsighted planners?)  We know that most violent crime is committed by young men, but — thanks to such harsh sentencing measures as three-strikes laws — our prison population is rapidly aging.  44% of inmates serving more than one year are black.

We can always take solace in the international comparisons.  Imprisonment has been rising in Norway, too.  The most recent data I found were for 2001, and the country had set a new record high:  on an average day, there were 2,800 inmates — from a population of some 4.5m.  (The number of inmates climbed partly because Norway added a whopping 109 prison spaces that year.  Yes, it's booming business for the Arctic Circle's government contractors even if socialism is in abeyance.  Just picture the crushing burden on those docile, long-suffering taxpayers.)  More reindeer were killed in Norway that year than Norwegians entered prison to serve time.  Quick, someone alert the animal-rights brigades.  Half of Norway's children are now born out of wedlock; a quarter now live without both parents; and since 1993 some 1200 same-sex couples have registered for Norway's civil unions.  Yes, that's it! the breakdown of marriage and the family must explain Norway's surging prison population.  Or perhaps Norway's famously comfy prison conditions lure unsuspecting innocents into a life of hardened crime. 

Take the graph I reproduced above and extrapolate the lines out to 2025, the year Alan Greenspan invoked as the doomsday when only 2¼ workers would support each Social Security beneficiary.  You think we can sustain those rates of increase?  Well, maybe:  I suspect Justice Burger thought we were near the breaking point in 1980, and obviously we weren't.  (It's that spunky American can-do spirit!)  Do you want to sustain those rates?  Do you have ideas about what to do about them?  Do you want to reconsider or modify the claim that ours is a free society?  Meeting a couple of weeks ago with senior citizens at a Tucson recreation center, our president burbled,

I have this great faith in the capacity of freedom to make the world a better place.  So I just want to give you a quick foreign policy report, and tell you that this world of ours is getting better as more people become free.

Would he tell it to the inmates of Leavenworth (as of '02, capacity 1197, population 1641)?  Would he tell it to the young black men hustling drugs on Philadelphia street corners?  Imagine, just for a moment, no matter how whimsical the prospect strikes you, bear with me and imagine having a president crisscrossing the country clutching not triumphant foreign policy bulletins, not Social Security's actuarial forecasts, but my Department of Justice graph, yes, that one, the one showing the cancerous expansion of the number of Americans in the criminal justice system's ghoulish embrace.  Now imagine that president passionately exhorting the public:  "this is a ticking bomb!  We must do something now for our children and our grandchildren!  I call on all Americans of good will, on both sides of the aisle, to help me find creative solutions to this disaster!"  Do you want to chortle or shrug that image off as an idle distraction from Our Real Problems?

For decades, huge majorities have insisted our courts are not harsh enough in dealing with crime.  (The results since '96, which I couldn't find publicly available online, show what might delicately be styled a modest decline.)  Meanwhile, felons — and, all too often, ex-felons may not vote.  1.4m black men — 13% of the total — are disenfranchised.  No surprise, then, that our politicians have no sufficient incentive to respond to the soaring numbers posted by the Department of Justice.  I bet plenty of our elected officials would wring their hands and privately assure you that they regret or even deplore this national disgrace.  I bet plenty of them would mean it.  I bet plenty of them should consider spine implantation surgery.

Restoring the vote to felons who've served their time wouldn't solve all these problems.  But it might help, and anyway it's the right thing to do.  Just last month, the Christian Science Monitor endorsed the proposal.  Still, our sympathies even with ex-prisoners who've done their time aren't exactly overwhelming.  There are more ignoble political considerations, too.  "The state of Florida had an estimated 600,000 ex-felons who were unable to vote in the 2000 presidential election."  The Washington Post notes that 16% of Florida's blacks are disenfranchised.  Shed an Everglades crocodile tear for Governor Jeb Bush:  what's a poor 50/50 state to do?

While you were reading this blog post, the numbers on that graph inched up.


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A fresh look at the state of America the Prison Nation. [Read More]

Tracked on Apr 5, 2005 8:33:59 PM

» A Two Fanged Post from Pseudo-Polymath
Don Herzog of Left2Right pens an essay with two barbs. The main thrust of the essay is that the prison population in this country has been basically rising since the 1980s. He points out that in Norway (his example) prison... [Read More]

Tracked on Apr 6, 2005 12:05:55 AM


Posted by: D.A. Ridgely

Legalize drugs, make the whole problem go away.

Posted by: D.A. Ridgely | Apr 5, 2005 8:13:22 AM

Posted by: LPFabulous

What Ridgely said. In fact, how many people here don't see that as a pretty workable solution?

Posted by: LPFabulous | Apr 5, 2005 8:17:40 AM

Posted by: Will

Its not clear to me how giving law-breakers more benefits in the form of vote power will lead to less crime.

Posted by: Will | Apr 5, 2005 9:14:15 AM

Posted by: Josh Jasper

It's like abstinence only sex ed. Our criminal 'justice' system is designed to make moralists feel good, and has a side effect of making the problem worse.

We're digging a hole. It's about up to our waist now, and Bush wants us to dig harder, faster, and deeper. Eventualy, the damn thing is going to bury us.

Posted by: Josh Jasper | Apr 5, 2005 9:32:42 AM

Posted by: john t

The President burbled? Good thing there was a competant translator at hand to give us a accurate translation. It is accurate isn't it. Do Democrats burble? Does Don Herzog burble? Seriously,I'm against the three strikes law although killing reindeer is another matter. It's apparent from the statistics that Mr Herzog gives that all 1200 civil union partners are hardened criminals and so that country may wish to revoke this decadent practice. Overcrowding is a problem though but may be solved by an immediate slashing of 50% of all state medicaid spending. With the savings therof we will be able to provide prisoners with three room suites and their own personal correction officer to clean up after them. Tough choices have to be made. For myself I'll never be free when a brother is behind bars. Bush could at least travel to the Philadelphia street corners and encourage the hustlers to volunteer for the Salvation Army or at the least to sell French postcards instead of dope. Now back to those reindeer.

Posted by: john t | Apr 5, 2005 9:39:48 AM

Posted by: Literally Retarded

Is there any data correlating the sharp increase in prison population with the sharp decrease in violent crime over the last ten years?

Just asking, you know.

Posted by: Literally Retarded | Apr 5, 2005 9:59:06 AM

Posted by: bakho

I agree with Ridgely on this one as well. But..
The Republicans would never legalize drugs. Because blacks are far more likely to get felony convictions for drugs than whites, it makes a convenient way to keep black ex-cons in places like Florida from voting. Those convicted of drug charges may be most in favor of legalization, but they cannot vote in many states. Go figure.

Actually the sharp reductions in crime under Clinton have much more to do with the low unemployment rate. Under Clinton unemployment in black communities dropped below 10% for the first time in decades. In the Bush economy for the wealthy, inner city unemployment is back above 10% and the crime rate is creeping back up. People who work don't have as much time or inclination to be involved in criminal activity. The best crime prevention program is a job.

Posted by: bakho | Apr 5, 2005 10:09:36 AM

Posted by: Terrier

Sadly Don, your subtle point seems to have sailed over heads. Can we change this trend if those most affected by it have no political voice? Can we even pretend to be a democracy anymore? "No man is good enough to govern another man without that other's consent." - Abraham Lincoln

Posted by: Terrier | Apr 5, 2005 10:16:50 AM

Posted by: D.A. Ridgely

Literally Retarded, you know as well as I do that the liberal press continues to complain that the prison population continues to rise dispite the decrease in violent crime.

By the way, Mr. Herzog, what exactly are the racial implications in your argument? I mean, certainly we would not want the state to reduce the general prison population or re-enfranchise felons on pretextual grounds really only in order to increase African American eligible voters, would we? I don't mean that in my typical snippy, wiseass way. I really mean that I don't see a policy implication or an injustice purely on the breakdown of these crimes by ethnic groups any more than I see it in the case of white collar crime. We certainly wouldn't favor changing the legal system to reduce the incarceration of middle aged white males who predominantly commit such crimes.

Now, we can make the case that violent and drug related crimes are largely crimes committed by the poor and that there remains a disproportionate number of poor ethnic minorities versus the rest of the population, which would lead to a different sort of concern. Conversely, we could take the data as evidence that our criminal justice system discriminates racially in that, say, black drug dealers are dealt with more harshly than similarly situated white drug dealers, and that might suggest different sorts of possible solutions. But it seems to me that if that is the case, we need to make that case empirically before leaping to the conclusion that there is a racial problem, per se, as well as a general prison and ex-convict problem.

Posted by: D.A. Ridgely | Apr 5, 2005 10:18:21 AM

Posted by: bakho


from Steven Levitt and Stephen Dubner (2005), Freakonomics: A Rogue Economist Explores the Hidden Side of Everything

[A] crack gang works pretty much like the standard capitalist enterprise: you have to be near the top of the pyramid to make a big wage.... [M]ost of J.T.'s foot soldiers also held minimum-wage jobs in the legitimate sector to supplement their skimpy illicit earnings. The leader of another crack gang once told Venkatesh that he could easily afford to pay his foot soldiers more, but that it wouldn't be prudent. "You got all these n** below you who want your job, you dig?" he said "So... you try to take care of them, but.. you also have to show them you['re] the boss.... If you start taking losses, they see you as weak." Along with the bad pay, the foot soldiers faced terrible job conditions. For starters, they had to stand on a street corner all day and do business with crackheads.... Foot soldiers... risked arrest and... violence... The results are astonishingly bleak. If you were a member of J.T.'s gang for all four years, here is the typical fate.... arrested 5.9 [times].... Number of nonfatal wounds or injuries (not including injuries meted out by the gang itself for rules violations)... 2.4.... Chance of being killed... 1 in 4.

A 1-in-4 chance of being killed. Compare those odds to being a timber cutter.... Over four years' time, a timber cutter would stand only a 1-in-200 chance of being killed.... So if crack dealing is the most dangerous job in America, and if the salary is only $3.30 an hour, why an earth would anyone do such a job? Well... they all want to succeed in an extremely competitive field in which, if you reach the top, you are paid a fortune.... To kids growing up in a housing project on Chicago's south side, crack dealing was a glamor profession.... [T]he job of gang boss--highly visible and highly lucrative--was easily the best job they thought they had access to. Had they grown up under different circumstances, they might have thought about becoming economists.... But in the neighborhood where J.T.'s gang operated, the path to a decent legitimate job was practically invisible.... [B]arely one in three adult men worked at all.... [F]oot soldiers often asked... help in landing what they called "a good job": working as a janitor at the university of Chicago....

Posted by: bakho | Apr 5, 2005 10:21:05 AM

Posted by: D.A. Ridgely

I will readily agree with bakho that alternative employment prospects and the health of the general economy figure significantly in the crime rate.

The claim that Republicans oppose legalizing drugs because doing so would increase the number of likely Democratic voters is no more or less preposterous than the claim that Democrats intentionally propose policies to increase welfare dependence because welfare recipients are more likely to vote Democratic.

Given my "all are weasels" position, I would not dismiss either theory out of hand, but I would be fascinated to hear how liberals react to these arguments.

Posted by: D.A. Ridgely | Apr 5, 2005 10:47:04 AM

Posted by: Terrier

D.A. Ridgely, the contention was that Radical Republics oppose drug legalization because it reduces the number of black voters. I suppose the Democratic party favored welfare reform in the 90s because...?

Posted by: Terrier | Apr 5, 2005 11:15:41 AM

Posted by: D.A. Ridgely

I don't recall bakho using the term "Radical." Is "radical" liberal code for "racist"?

Come to think of it, I don't recall the Democratic party, per se, favoring welfare reform in the 90's either. (Except, of course, the sort of 'reform' that didn't happen -- expansion.) I guess I missed that.

Posted by: D.A. Ridgely | Apr 5, 2005 11:20:47 AM

Posted by: Terrier

D.A. Ridgely, no 'Radical' has nothing to do with 'Racist' but you can certainly see that I can't use the word 'Conservative' for a party that expands government programs (The Senior Drug Benefit,) balloons the deficit, and subverts the Constitution (current threats on the Judicial system.) I think 'Radical' is the only fitting word. About welfare reform I can only suppose that you were out of the country and possibly the planet when Clinton made it a cornerstone of his agenda. But, this is really the same as blaming Clinton and Gore for big government when they actually had the lowest number of Federal workers since the 60s, and I've heard that here. I can't account for the drugs that libertarians do to remain in a cloud about the facts of the world.

Posted by: Terrier | Apr 5, 2005 11:49:45 AM

Posted by: Tad Brennan

A different sort of point to make about these numbers would be that they deserve to be included in any discussion of the relative unemployment rates of various economies.

Germany and France are dealing with severe unemployment, up into double digits, while our unemployment rate remains relatively low. Which shows that our dynamic, deregulated economy is better than their semi-socialized regimes, right?

Well, anyone who wants to make that argument should probably also take into account the tiny fraction of their working-age populations that is incarcerated, as opposed to the very large chunk of our working-age population behind bars. It might shift around the percentages a bit.

Posted by: Tad Brennan | Apr 5, 2005 11:51:01 AM

Posted by: D.A. Ridgely

Sheesh, Terrier, are you now accusing me of taking drugs? (1) I remind you once again that bakho said "The Republicans," not "Radical Republicans." It was his point, however much you might like to try to save it. (2) I recall Clinton very reluctantly (but also very cleverly) diffusing Republican initiatives for welfare reform with his "Mend It, Don't End It" patter. I don't recall any Democrat initiated reforms. Please refresh my memory. (3) Finally, the number of federal employees is utterly unrelated to the size of the federal government. The government simply contracts out functions that were previously performed by federal employees. Now, that might be a good or a bad thing on all sorts of levels, but it has absolutely nothing to do with the overall size or expense of the federal government.

Mr. Brennan, so are you suggesting we send our prisoners to France? (Just kidding. Welcome back.)

Posted by: D.A. Ridgely | Apr 5, 2005 12:12:04 PM

Posted by: Josh Jasper

I find myself wondering how long the trend to increasing prison populations will go on. Will it level out? What's the US's rate of increase in prison population, and what does the rest of the world's look like?

How should we bet, in terms of what the incarcerated citizens of the US will look like in 2008? 2010?

Posted by: Josh Jasper | Apr 5, 2005 12:25:54 PM

Posted by: Sebastian Holsclaw

I'm a little annoyed at the idea that Republicans resist legalizing drugs so that they can keep the black man down. I don't mean to be horribly rude, but I haven't noticed drug legalization as a platform plank of the Democratic Party either. I would love if either (or preferably both) parties woke up to the reality that the drug war is a) a huge waste of time and money, b) horribly deforms our civil liberties structure, and c) has far more negative externalities creating crime than it does in reducing negative drug-taking behaviour.

But neither party deals with it that way. So trying to pin it on the Republicans and throwing in race-baiting to boot, is just silly.

Posted by: Sebastian Holsclaw | Apr 5, 2005 12:33:54 PM

Posted by: miab

Tad writes: "Well, anyone who wants to make that argument should probably also take into account the tiny fraction of their working-age populations that is incarcerated, as opposed to the very large chunk of our working-age population behind bars. It might shift around the percentages a bit."

That's an interesting point. Do prisoners count as unemployed, as employed (in prison jobs), or as out of the work force?

Also, in general, how similar are the U.S. and European standards used to measure unemployment? I think I remember that one way Reagan cut unemployment was by counting more of the people without jobs as "discouraged", and therefore not part of the workforce, and therefore not unemployed. Are european unemployment rates determined on a generally similar basis to those in the US?

Posted by: miab | Apr 5, 2005 12:33:56 PM

Posted by: Terrier

"Our National Economic Strategy will put people first by rewarding work, demanding responsibility and ending welfare as we know it. We will:
Make welfare a second chance, not a way of life by scrapping the current system and empowering those on welfare by providing the education, training
and child care they need to go to work." - from a 1992 Clinton campaign brochure!!!

Posted by: Terrier | Apr 5, 2005 12:39:46 PM

Posted by: lakelobos

Worth checking the hypothesis that crime rise and GOP rise are highly correlated.

Posted by: lakelobos | Apr 5, 2005 12:53:23 PM

Posted by: D.A. Ridgely

Aha! Campaign brochures!

And between 1992 and 1994 while Democrats still controlled the House (until Republicans won it in opposition to HillaryCare, running on the "Contract With America," which included welfare reform provisions that Clinton first largely fought to minimize and later took credit for), what substantive reforms were actually even proposed by the White House or Congressional Democrats?

Posted by: D.A. Ridgely | Apr 5, 2005 1:02:04 PM

Posted by: Tad Brennan

Sebastian Holsclaw--

I have just finished reading your excellent ruminations on reform and conservativism over at Obsidian Wings. Really interesting--anyone who reads L2R will appreciate it:

One of the reforms you discuss is gay marriage. I am generally of the liberal stripe, and I am one of those staunch partisans of heterosexual monogamy who explains my unconcern about gay marriage by saying that it could not possibly affect me or the institution of marriage. What harm could it do?

Your post at Obsidian Wings, amplifying Jane Galt, encourages us to look further and with greater subtlety before easily assuming that radical reforms will have not deleterious effects. Perhaps *my* marriage will be unaffected by the political acceptance of gay marriages, but perhaps *other* couples will be adversely affected--the "marginal couple", to modify Galt's example.

The general point is one that I endorse, though I think that its application to the gay marriage case will sustain the case for reform.

But there is a different area in which the concerns about a headlong rush to overturn settled convention have always struck me as far, far stronger: the legalization of drugs.

Here is a clear case in which a Chestertonian gate has been erected across the road. Reformers find it silly, irrational, pointless, and fraught with damaging consequences. If we only legalized drugs, violent crime would be reduced, prison populations would shrink.

Well...perhaps. But this seems like a perfect example of an area in which the presence of the barrier should give great pause to reformers. And also an area in which Jane Galt's marginal user argument is very plausible. It's true that if drugs were legalized I myself would still never use them. But it seems quite plausible to me that their legalization would create a climate in which more people--especially young people--might use them.

I suppose I am just registering my surprise that several of the people on this blog who reliably tilt conservative--and *genuinely* conservative, not the horrendous Rove/Bush/DeLay monstrosity that has usurped the name--should be such radical reformers when it comes to drug legalization.

Posted by: Tad Brennan | Apr 5, 2005 1:20:31 PM

Posted by: Terrier

For Immediate Release June 21, 1994


I am pleased to transmit for your immediate consideration and enactment the "Work and Responsibility Act of 1994."

Presidential Letter to Congress

Posted by: Terrier | Apr 5, 2005 1:32:17 PM

Posted by: Mona

Yes, we must legalize drugs; 59% of the federal prison population is there for non-violent drug crimes. They are disproportionately black.

But I expect to see sentiment for drug policy reform coming from Republicans before it does from Democrats, because, it already has. Buckley's National Review dedicated an entire issue in '96 to why we should legalize pot and consider legalization of other illicit substances. When Buckley appeared on the McNeil-Lehrer news hour to defend his position, the other side was represented by black Congressman Charles Rangel, who has said legalization would be black genocide.

Conservative Congressman Henry Hyde penned a fine little book titled Forfeiting Our Property Rights - Is Your Property Safe From Seizure in which he examines the abomination of asset forfeiture in the drug war. He calls for a public discussion about reforming drug policy, with *all* options, including legalization, on the table.

And Tad Brennan: you should not be surprised that the "right" on this board seems to overwhelmingly support legalization. We tend libertarian, and if there is any non-negotiable tenet held by all libertarians, any litmus test, so to speak, it is outrage at drug prohibition. It would be fair to describe me as a militant fanatic in the anti-prohibitionist camp.

Posted by: Mona | Apr 5, 2005 1:46:10 PM

Posted by: stick

An interesting and needed article from Professor Herzog. I think decriminalizing marijuana is a good idea. Not sure about narcotics: though prison is NOT the answer. But drug busts are the meat and potatoes of the CDC for instance. And not only are the prisons full of druggies, but there are the massive treatment centers, thousands of counselors, cops, and probation people who specialize in drug busts and programs, etc. Drugcrime is very big bidness for California: and with 3 strikes say a thief with a strikable larceny case can catch a possession and manufacturing beef inside and spend the rest of his life in Pelican. (In fact I know a few who are). Not very pleasant customers, but should a one or two-time thief go down for life on 3rd strike drug case?

Posted by: stick | Apr 5, 2005 1:52:17 PM

Posted by: D.A. Ridgely

Ah yes, Terrier, that was the plan providing up to two years for welfare recipients born after 1971 to find viable private employment and, if they did not, to be placed in government subsidized jobs while the recipients also received educational, job training, transportation allowances and child care services to the tune of an increase in federal spending of somewhere between $3 to 5 billion per annum. Very well, I concede your point.

Posted by: D.A. Ridgely | Apr 5, 2005 2:09:54 PM

Posted by: Terrier

Tad, I don't buy the whole caution bit - things change - always have always will - if marriage is a bedrock institution because gays don't marry and the only way to maintain that is to promote intolerance for gays then I'm willing to throw caution to the wind - the alternative is guaranteed to fuel confrontation and division. Should we prefer a deeply divided country to avoid angering the 20% that might remain upset after a change?

Mona, how to counter those that might be suspicious of motives because government thugs pushed crack onto the black community? I think that is the reason some liberals fear legalization. The State that provided no help when it was needed now proposes to just open the tap and walk away. Note what I said above! Shouldn't you just wait for a consensus on legalization? After all, it is not like anyone suffers because of criminalization.

Posted by: Terrier | Apr 5, 2005 2:23:42 PM

Posted by: Mona

terrier writes: Mona, how to counter those that might be suspicious of motives because government thugs pushed crack onto the black community?

I'm sorry, but I don't take that or most of the rest of your inquiries and claims seriously.

Posted by: Mona | Apr 5, 2005 2:39:50 PM

Posted by: D.A. Ridgely

So, let's see... we have around 1.4 million folks in prison and another 4 million on probation, 59% of the federal prison population are there for non-violent drug crimes and most of them are black. The War Against Drugs saps untold millions of tax dollars every year in law enforcement, judicial system and penal system costs, the Feds confiscate people's property right and left and Abe Lincoln would be saddened by all those folks who are being governed without their consent because they can't vote.

You're right, Terrier. It's not like anyone suffers because of criminalization.

Posted by: D.A. Ridgely | Apr 5, 2005 2:44:03 PM

Posted by: Sebastian Holsclaw

"But this seems like a perfect example of an area in which the presence of the barrier should give great pause to reformers. And also an area in which Jane Galt's marginal user argument is very plausible. It's true that if drugs were legalized I myself would still never use them. But it seems quite plausible to me that their legalization would create a climate in which more people--especially young people--might use them."

Good points. But I think there are some solid distinctions to be had between drug legalization and reforming other more long-standing institutions.

A) Drug criminalization is a recent experiment (fence, institution) which had been tried to bad effect in the past (the Prohibition).

B) Its results can now be measured. When measured we find that the stated reform benefits are not dramatic (drug use does not go down very much under criminalization regimes--at least those less traumatic than the Singapore system).

C) Its effects on creating crime are pronounced (see above)

D) Its corrosive effect on civil liberties is well documented (see especially asset forfeiture) and dramatically reduced search and seizure standards in response to the need for drug searches.

I think it is somewhat likely that more people would use drugs, and that doing so would have a somewhat bad effect on society. But it would have a less bad effect than continuing the criminalization regime--especially for pot smoking.

Posted by: Sebastian Holsclaw | Apr 5, 2005 2:45:36 PM

Posted by: Tad Brennan


Perhaps you misread my position on gay marriage--I favor legal recognition and normalization. But I *do* buy "the whole caution bit" as a general rule, I simply think it needs to be applied case by case. (And surely you are not advocating throwing caution to the wind in every case either). My question was why Mr. Holsclaw, whose very interesting post I was referring to, spoke so clearly about the dangers of abandoning caution on gay marriage, and yet was so ready to abandon caution on legalization.

Very good to hear from you again. Yes, I realize that many of the loyal opposition on this blog trend libertarian, and that many libertarians are for legalization (though if the degree of uniformity amounts to a litmus test, I shall make sure to avoid libertarian get-togethers--I have always hated the smell of pot).

On the other hand, many of the loyal opposition on this blog also trend old-school conservative, i.e. wisdom-of-the-ages, ain't-broke-don't-fix-it, don't-tamper-with-civilization, Burkean, Oakeshottean conservative. Clearly drug laws are one area where libertarians cannot be conservatives of this stripe, since legalizing drugs is distinctly the radical break from the centuries-old status quo. (Well, maybe not centuries-old. I'm not sure of the history of drug laws pre-1900 or thereabouts, nor of the history of drug use, either, though I suppose that the case of De Quincey shows that the early 19th century had at least a nodding acquaintance with opium.)

Posted by: Tad Brennan | Apr 5, 2005 2:47:01 PM

Posted by: miab

Most drugs were criminalized in 1914; marijuana in 1937. A true conservative position would take us back at least to 19th century, if not 18th century, practices.

Tad writes: "It's true that if drugs were legalized I myself would still never use them. But it seems quite plausible to me that their legalization would create a climate in which more people--especially young people--might use them."

The question isn't whether more people will use them, but whether more people will abuse them.

Posted by: miab | Apr 5, 2005 3:02:35 PM

Posted by: stick

Decriminalizing narcotics is not such a great idea. Some college student who want to smoke a few reefers is acceptable--homicidal teamsters and gangstas on speed or crack is to be prevented. And legalization or narcotics could lead to that--more accidents on road, more violence, more madness. Should heroin or LSD be on sale like whiskey is? A Coleridge or De Quincy smoking some opium is one thing: kids tripping on psychedelics is another. The prison system is scary and overwhelming but so is the thought of masses of stupid people high on hard drugs.

Posted by: stick | Apr 5, 2005 3:03:21 PM

Posted by: Tad Brennan


Would you like to expound on the distinction between the use and abuse of crystal meth? Of heroin?

It seems to me that--my olefactory preferences aside--there is a vast gap between pot, which might just possibly play an innocuous role in society as another recreational drug, and hard drugs like speed, crack cocaine, heroin, etc.

Do even libertarians argue that these latter drugs can be used for casual and recreational purposes without adverse effects to the health of the user, to the health of their family, to the stability of their finances and ability to hold down a job?

Or is the libertarian view simply that if I destroy my health, ruin my marriage, and leave my children homeless and poor, through my use of crystal meth, then this was a personal choice society shouldn't interfere with?

Posted by: Tad Brennan | Apr 5, 2005 3:08:33 PM

Posted by: Mona

Tad Brennan quips: (though if the degree of uniformity amounts to a litmus test, I shall make sure to avoid libertarian get-togethers--I have always hated the smell of pot).

That is so disappointing. I had hoped that at this board at least, I would not encounter the invariable accusation that all anti-prohibitionists, certainly libertarians, are pot-smokers. The usual additional sentiment, stated either explicitly or implicitly, is that we simply want to be free to follow our hedonistic ways. (I'm not saying you, Tad, are accusing anyone of this, but your aside as quoted above is of a piece with this usual direction of these discussions.)

Well, I don't smoke pot or partake of any other illicit substance. As is true of most in my boomer generation, I did in my youthful past, but found little intriguing about it.

I support the legalization of prostitution and gambling, but I neither am nor aspire to be a hooker, and I don't gamble even where it is legal, as that pursuit does not interest me.

My support for legalization of illicit substances is driven by the same principle that causes me to favor that all other consensual activities among adults should be legal. (OK, I *might* balk at permitting that whack job in Germany who taped the consent of the fellow whom he slowly carved up and whose penis he then consumed.)

As for the Oakshottean perspective, I somewhat share it, but in its Hayekian version. Slow, organic change is my preferred route. However, the results are in on the serious unintended consequences of drug prohibition, and they are overwhelmingly awful. Fixing what *is* broke is the right thing to do.

Posted by: Mona | Apr 5, 2005 3:08:50 PM

Posted by: miab

Or rather, to be more precise, it wasn't until 1914 that narcotics and other now-illegal drugs were even really controlled (on a federal level). The 1914 Harrison Act merely regulated and taxed drugs -- it medicalized their use. It was later twisted into use as a prohibition act.

Posted by: miab | Apr 5, 2005 3:10:05 PM

Posted by: Josh Jasper

We have legalized one specific drug: alcohol. We suffer because teens use it irresponsibly. But we learned alnost a century ago that banning that drug was a bad idea. Many liberal politicians want to legalize at least 'soft' drugs, if not all drugs, and eliminate or moderate penalties for users. Many (most?) conservative politicians want to keep things the way they are, or are pushing for more penalties.

Draw your own conclusions for the future.

Posted by: Josh Jasper | Apr 5, 2005 3:10:37 PM

Posted by: DBCooper

Do the names Jessica Lunsford and Carlie Bruscia ring a bell? Florida has had two prominent child abduction, rape, and murder cases in the past year. Both times the vermin that perpetrated these crimes were career criminals that were cycled in and out of the prison system. Both perpetrators were drug users, and were on drugs at the time of the abductions. Of the Bruscia tragedy, the local paper penned "One time too many?" meaning had the justice system let Joseph Smith off the hook one too many times. The story went on to recall a rap sheet that filled most of the rest of the page. The article should have been entitled "15 times too many."

Of course real indignation and outrage is rightly placed in the notion that an arbitrary number of prison incarcerations has been exceeded. We all know that only (your arbitrary number here) citizens should be incarcerated at any given time, right? What is that "correct" number, by the way?

Posted by: DBCooper | Apr 5, 2005 3:14:21 PM

Posted by: Mona

Tad asks: Or is the libertarian view simply that if I destroy my health, ruin my marriage, and leave my children homeless and poor, through my use of crystal meth, then this was a personal choice society shouldn't interfere with?

Yes, it just as we think you should be free to drink a fifth of Jack Daniels every day and incur those results, or go to the Blue Casino and fritter away your income. Your wife should divorce you, and your employer fire you, but the rest of the population who can doe these things in moderation (the vast majority) should not face prison for doing them.

Prison ruins families. Children, every day, are left without a parent, and sometimes both parents, because Mom and/or Dad sold some illicit substance. Drug dealers are often otherwise responsible adults, active in their communities, and productive human beings. I know this flies in the face of conventional stereotypes, but it is true.

Drug addiction may well F up your life, but so will prison. In the first instance one has choice, in the latter, one is destroyed by the government.

Posted by: Mona | Apr 5, 2005 3:16:09 PM

Posted by: Tad Brennan


Yes, I apologize--I was not really claiming that advocating the legalization of X means that you yourself like to indulge in X (see me on gay marriage, ahem), and my quip about pot was just an attempt at humor. Sorry if the joke is long past its pull-date. (I thought I did better with the phrase "a nodding acquaintance with opium").

Posted by: Tad Brennan | Apr 5, 2005 3:16:27 PM

Posted by: Sebastian Holsclaw

I don't really see the deep moral distinction in favor of wrecking a marriage and leaving a child without a useful parent by putting someone in jail in favor of the same thing happening because they do drugs.

(Just to clarify the mildly off topic point above, I'm pro gay marriage. Jane Galt's post was a springboard it wasn't cited in full agreement--though she isn't anti gay marriage either).

Posted by: Sebastian Holsclaw | Apr 5, 2005 3:20:22 PM

Posted by: Mona

DB Cooper writes: Both times the vermin that perpetrated these crimes were career criminals that were cycled in and out of the prison system. Both perpetrators were drug users, and were on drugs at the time of the abductions.

And they should go to prison for their violent crimes. However, the single drug most correlated with violent crime is alcohol. (I guess I'm going to have to spend some time back at Cliff Shaffer's impressive online library of drug policy statistics and history, since I do realize I've been making unsupported claims. Shaffer was a consultant for an impressive History Channel series on drug prohibition.)

Posted by: Mona | Apr 5, 2005 3:23:25 PM

Posted by: stick

Those libertarians who advocate the legalization of all drugs--and even of alcohol and gambling-- are naive. There are many good reasons for prohibition or limited prohibition to some degree ( say only high school graduates allowed to buy beer). Stupid people of all races abuse drugs and alcohol. And gambling preys on the gullible and foolish as well. Citizens might have good reasons to prevent stupid people to become more stupid by legalizing drugs and alcohol ( or from letting them toss their money away to casino owners). Libertarians are far too utopian.

Posted by: stick | Apr 5, 2005 3:37:20 PM

Posted by: Mona

stick writes: Libertarians are far too utopian.

Libertarians are the anti-utopians, in the extreme.

Posted by: Mona | Apr 5, 2005 3:50:47 PM

Posted by: Tad Brennan

Mr. Holsclaw--

"I don't really see the deep moral distinction in favor of wrecking a marriage and leaving a child without a useful parent by putting someone in jail in favor of the same thing happening because they do drugs."

I made no moral distinction in damage done. I never claimed that children are less damaged by a family destroyed at one remove by drug-use than by a family destroyed at two removes by incarceration for drug-use. Nor do I think them less damaged because the state plays a role in the second case.

But I'm not sure what you are arguing beyond that. Are you arguing that because the state's attempts at prohibiting some behavior sometimes produce damage of the same kind as it was trying to avoid through the original prohibition, this shows that the behavior should not be prohibited after all?

The state enacts laws to discourage certain kinds of behavior that are destructive of society--murder, abduction, theft, and so on. It backs up those laws with penalties that are in some instances of the same broad kind as the destruction the laws are meant to curtail--death, deprivation of liberty, confiscation of property, and so on. Surely this does not mean there is something fundamentally flawed with prohibitions against murder, abduction and theft? So why should the fact that drug-laws sometimes ruin families be a strike against drug-laws designed to prevent the ruin of families?

Now, if you want to say that the question is purely one of numbers--are there fewer families ruined with or without prohibition (or fewer deaths with or without the death penalty), then I think we're pretty much on the same page. But I had the sense from your comment that you though there *was* a difference, aside from the numbers, which told *against* drug laws.

E.g., is the thought that the state incurs a greater culpability when it causes damage in the course of attempting to prevent damage--perhaps a culpability that stems from its interference in the citizen's free choice? I am puzzled.

Suppose a mountain curve is infamous for traffic accidents--destruction of cars and death of occupants. The state puts up retaining-walls to keep motorists from going over the edge. Is the state more culpable for the death of motorists who plow into the wall than for motorists who would have plunged over the cliff? Is the state involved in some sort of limitation on the driver's rights, because going over the cliff would have involved only the agent and nature, whereas cracking up on the wall involves the state?

Look, I thought the standard tough-on-crime line was that citizens have to know that if they commit the crime, they are the ones responsible for the predicament they get into. The laws are not mysterious or unknown. They have consequences. Anyone who winds up in jail as a result of drug use has only themselves to blame. The state didn't put them in there--they put themselves in there.

As I say--I thought that was the standard tough-on-crime line, and people who try to minimize the responsibility of the inmates were called "soft-on-crime liberals" and had turnips hurled at them. But when it comes to drug laws, I hear some of you non-liberals sounding as though the poor inmates were not responsible for their actions, it was the bad old state that put them in there. As though a) they didn't choose to drive right into the retaining wall which is large, notorious, and inescapably visible, and b) the retaining wall had not been put up in the first place exactly to try to save more lives.

But again, if the argument has no *ideological* cast, and is simply one for the number-crunchers, then it may well be that we should give up on prohibition. But I say that as a liberal, rationalistic technocrat, who seldom argues for the mystic unconscious and unquestionable wisdom of Tradition.

Posted by: Tad Brennan | Apr 5, 2005 4:07:47 PM

Posted by: Josh Jasper

But they are optimistic.

Posted by: Josh Jasper | Apr 5, 2005 4:08:35 PM

Posted by: Tad Brennan


Surely there are at least two kinds of utopians?

Those that think that the infallible and benevolent State shall bring about human happiness,
and those that think that human happiness will simply magically appear without having to answer any hard questions?

Libertarians are certainly not the first kind of utopian.

Posted by: Tad Brennan | Apr 5, 2005 4:17:29 PM

Posted by: Mona

Tad Brennan errs: The state enacts laws to discourage certain kinds of behavior that are destructive of society--murder, abduction, theft, and so on.

No, prohibiting those things is not meant to benefit the abstraction known as "society," but rather to protect individuals from the force or fraud initiated by others. Drug prohibition is meant to protect us from ourselves. If the ripple effect of possible harm to others when we abuse a freedom, such as losing a job and impoverishing our family is to justify locking citizens in cages for any exercise of that freedom, then we should reexamine our commitment to free speech. I have no doubt that Klan-level speech has resulted in serious harm to others. Should we simply punish the racist who hoisted the victim on the rope, or also ban the Klan rallies that nurture his hatred in order to prevent this harm?

The government should prohibit only those actions that directly interfere with the rights of others. Reasonable people will, of course, disagree over what constitutes direct harm, but it is not the guy buying a joint from his pal on a Friday night so as to better enjoy The Comedy Channel, or a line of coke to facilitate activities with his girlfriend -- or some Wild Turkey to lubricate the poker game.

Posted by: Mona | Apr 5, 2005 4:22:10 PM

Posted by: Sebastian Holsclaw

"Now, if you want to say that the question is purely one of numbers--are there fewer families ruined with or without prohibition (or fewer deaths with or without the death penalty), then I think we're pretty much on the same page. But I had the sense from your comment that you though there *was* a difference, aside from the numbers, which told *against* drug laws."

I suspect, as far as the numbers go, that at least as many families will be hurt to a greater magnitude by sending someone to jail. I am certain that anti-drug laws create many other negative effects--a black market which fuels vicious inner-city crime, a corrosive effect on civil liberties, etc.

Posted by: Sebastian Holsclaw | Apr 5, 2005 4:22:56 PM

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