1% of Americans are now incarcerated

From Kieran Healy:

Here is an older post about how the U.S. incarceration rate compares to other countries. Here is Becky Pettit & Bruce Western’s (2004) ASR paper, with its frankly astonishing result that in the cohort born between 1965 and 1969, thirty percent of black men without a college education—and sixty percent of black men without a high school degree—had been incarcerated by 1999. Recent cohorts of black men were more likely to have prison records (22.4 percent) than military records (17.4 percent) or bachelor’s degrees (12.5 percent).Here is Bruce Western’s Punishment and Inequality in America, a superb analysis of how the prison system is now a key instrument not just of social control, but also social stratification, in America.

I don't exactly blame businesses for not wanting to hire ex-convicts--but that makes it very, very hard to stop being a criminal. i.e. to stop being poor, because the hourly wage for street crime is considerably below that on offer for popping chicken tenders into the deep-fry down at Burger King. This is a personal tragedy for the convicts, and a huge social cost for the rest of us, either in crime or additional prison terms. It's particularly sickening considering how many of those convicts are non-violent drug offenders:

Simple drug possession convictions make up about 5% of the federal prison population and about 27% of the state prison population, according to the federal government's own figures. Other nonviolent drug offenders were charged with nothing more than "sale or intent to sell" illegal intoxicants to willing buyers.

Update Greg Mankiw points to this talk from Jeffrey Miron on the drug war

Comments

One thing I'd like to add- money has a lot to do with whether simple possession results in incarceration. First, drug possession is much more aggressively investigated in inner cities than among college students. Consider the killing of Patrick Dorisimond by the New York police department. There is controversy about whether the shooting was justified, but there is NO way that police officers would hang around a mall in a middle class neighborhood ACTIVELY TRYING TO ENTICE teenage bystanders into entanglement in the drug trade. No middle class community would allow that.

Then, after an arrest for possession, a middle class person can normally have a lawyer arrange a diversion to a rehab program. If the program is completed and the person is not again arrested, the record can be expunged. But this takes money- for the original lawyer, for the rehab program, for a second round of lawyering to clear the record.

A poor person is MUCH more likely to end up with a criminal record than a middle class person who committed exactly the same actions.

Posted by Anne E | February 28, 2008 3:53 PM

Simple drug possession convictions make up about 5% of the federal prison population

Are you sure, 5%? How could you possibly end up in Federal Prison for simple possession?

Posted by jmo | February 28, 2008 3:58 PM

Sorry, I'm just not persuaded. I think imprisonment is a very important tool for fighting violent crime, and the evidence I have seen indicates that longer prison sentences have contributed substantially to the fall in violent crime rates over the past few decades.

Reducing penalties for at least some kinds of non-violent drug offenses may be warranted, but I think critics of the "war on drugs" tend to grossly underestimate the harmful effects of increased drug use that would be the likely result of significantly reducing criminal penalties for drug offenses.

Posted by Mixner | February 28, 2008 3:59 PM

Prohibition (on alcohol) was enacted for exactly the same reasons that the "war on drugs" was instituted. And had exactly the same unintended consequences (organized crime, etc.), while having the same lack of success in achieving its declared aims.

The fact that Prohibition was eventually repealed gives me hope that we will eventually see the folly of the war on drugs. But it sure is taking us a long time.... Who says people learn from past mistakes?

Posted by wj | February 28, 2008 4:10 PM

That's an interesting problem.

Does anyone know what that standard approach to getting a job with a criminal history is?

Do you get your church leader involved? Does prison have useful training programs?

I'm sure some people must be finding decent jobs post-prison, has there been any effort to apply their lessons to the rest of the population?

A lot of your columns in the previous weeks have mentioned coping skills that the middle class have but poor people tend to lack. I'm wondering if we could apply that lesson here -- maybe employers would hire ex-cons who volunteer at soup kitchens, for instance.

Posted by Dave | February 28, 2008 4:18 PM

Mixner,

Have you ever used drugs?

All I can say is I had one hell of a drug problem - it was fun and I wouldn't trade it the experience for anything. However, eventually it wasn't so much fun anymore. Indeed, towards the end it was sort of a pain in the ass... so I stopped.

I know many people who used and enjoyed drugs, eventually grew out of it, and are clean today.

Posted by Jmo | February 28, 2008 4:22 PM

I'm not sure why critics of the "war on drugs" always cite Prohibition as if they think it is somehow self-evident that it supports their case. Yes, Prohibition undoubtedly caused a lot of crime. But, in case you haven't noticed, so does legally-available alcohol. Alcohol is routinely involved in a huge variety of crimes, from domestic violence to drunk-driving, and alcoholism is a huge social scourge that devastates countless lives and families, not to mention exacting a huge economic cost in lost productivity.

Alcohol is probably too deeply entrenched in our economy, our traditions and our social life for Prohibition to work, although I certainly think there is plenty of room for stricter regulation of sales and consumption. But other drugs, especially really harmful and addictive ones like heroin and crack, are certainly not comparable to alcohol in this way.

Posted by Mixner | February 28, 2008 4:24 PM

The problem, wj, is that Prohibition actually did reduce alcohol consumption. It is likely that our War on Drugs does reduce rates of intoxication, and for some people, that's justification enough to endure all the unintended consequences that comes with the War on Drugs. It strikes me as completely crazy as well, but there you have it.

Posted by Will Allen | February 28, 2008 4:25 PM

On a Bloggingheads.tv segment last October (link http://bloggingheads.tv/diavlogs/366) Professor Glenn Loury discussed evidence that a black man with no criminal record has about the same (depressed) employement prospects as a white man with a criminal record, while a black man with a criminal record was basically unemployable.

By the way, I agree that drug use has serious adverse social consequences. But we ALSO need to consider the devastating consequences of relegating something like a third of black men to permanent outlaw status- including the effects on marriage and illegitimacy, kids growing up without fathers, etc.

Posted by Anne E | February 28, 2008 4:29 PM

I know many people who used and enjoyed drugs, eventually grew out of it, and are clean today.

That's nice. For a different kind of experience with drugs, you might want to check out this recently published memoir by a drug addict, and this one, by his father.

Posted by Mixner | February 28, 2008 4:34 PM

The genius of Prohibition was that it managed to give society all the problems associated with alcohol consumption, just to a lesser degree, because it only reduced alcohol consumption and did not eliminate it, and was less likely to reduce it for those driven to drink to excess. At the same time, however, it gave society a whole new host of problems associated with gigantic black markets and the attendent reduction in respect for the law. What a winner!

Posted by Will Allen | February 28, 2008 4:34 PM

Gee whiz, I have known people whose lives were greatly harmed by eating too much. Perhaps the fatties should have been incarcerated instead. Golly, I know people whose lives were greatly harmed by exercising too much. Perhaps we should have locked up those overly-active deviants. Shucks, I know of people whose lives were hugely harmed by working too much. Perhaps we should have imprisoned those eager beavers. Jumpin' jehosophat, I've known people who greatly harmed their lives by sleeping too little! Why didn't we just tie those wakeful criminals to their beds!

Posted by Will Allen | February 28, 2008 4:44 PM

Professor Glenn Loury discussed evidence that a black man with no criminal record has about the same (depressed) employement prospects as a white man with a criminal record, while a black man with a criminal record was basically unemployable

This is Devah Pager's research. See her book, or this article.

Posted by Keiran | February 28, 2008 4:47 PM

(Sorry about the off-topicness)

Will Allen, are you the same Will Allen who comments regularly at FO?

Posted by QM | February 28, 2008 4:48 PM

Just to clarify -- the facts show 1% of all adult Americans are in prison, not just 1% of all Americans. An imporant distinction.

Posted by Think Twice | February 28, 2008 4:59 PM

QM, I've been wondering the same thing for ages.

Posted by Independent George | February 28, 2008 4:59 PM

jmo wrote:

"Are you sure, 5%? How could you possibly end up in Federal Prison for simple possession?"

Uh, if you're black...

Posted by DEEBLEDOOR | February 28, 2008 5:00 PM

Mixner -

Exactly what sort of "harmful effects" would result from reducing criminal penalties for drug "offenses"?

I posit rather that most of the "harmful effects" stem from the society that proscribes the activity, rather than the activity itself. People who happen to enjoy using recreational drugs are ostracized by society which breeds disaffection and depression. Many wage-earning, tax-paying people are removed from the productive workforce and incarcerated at taxpayer expense or are forced into degrading "rehab" programs to cure them of their thought crime*. When they are released, their criminal record for engaging in a harmless act greatly hampers them in finding gainful employment or pursuing any sort of meaningful career. Many job seekers find their personal privacy violated by pre-employment drug screening, while the responsible use of recreational drugs off the job doesn't necessarily have anything to do with job performance.

I hear so much of this notion that that if drugs were legalized, society would fall into anarchy and everyone would just be drugged out all the time. I think this is patently ridiculous. Not a single currently proscribed drug was illegal in the US before 1935. I think society was moving along pretty well back then. The lack of drug prohibition didn't much hamper the development of Western society as we know it. Modern-day Amsterdam hasn't sunk into the sea, has it?

The fact of the matter is that people who want to abuse drugs and do absolutely nothing are already doing so. They don't even have to break the law. They could just drink all day. But just because it's possible doesn't mean that everyone is doing it, and that we've fallen into anarchy.

Now, I am writing mostly from the standpoint of cannabis advocacy. I hope you can at least say with me that cannabis prohibition is silly. It has been studied to death, and most rational folks can see that it is mostly harmless, and certainly less harmful than the legal alcohol and tobacco. Why are we running people through the courts and jails for cannabis possession and cannabis distribution. Biggest travesty against science since people said that the earth was flat, or that the sun orbited the earth.

I do think other recreational drugs like cocaine, meth, and heroin can be harmful and are without doubt strongly physically addictive. And sometimes people do get tangled up with them and need help so please do note my caveat (*) above that rehab isn't always an attempt at forced re-education. But again, its not like most people don't know that these drugs are dangerous. Recreational drug users aren't all the same. I know lots of cannabis smokers who would never touch coke or heroin.

The war on drugs seriously needs to be reassessed. The US government wastes a colossal amount of money on trials for harmless drug offenders, jail and prison time for harmless drug offenders, and wasted police time on drug offenders when they could be pursuing real criminals who are causing harm to life and or property. Think of what could be done in the way of government services (or an income tax rebate, if you like) with not only the money would be saved from the cessation of the pointless persecution of recreational drug users, but the extra money that could be made with a fair tax on recreational drugs such as cannabis. Other drugs such as non-habit forming hallucinogenics should be studied further and possibly made available for use under the supervision of a physician. Academic research with these substances has been seriously stymied as a result of reactionary legislation dating back from the government paranoia regarding these substances back in the 1960s and 1970s. Finally, hard drugs such as cocaine, opioids, and methamphetamine should perhaps remain proscribed as far as I am concerned, but penalties should be oriented more towards treatment than incarceration.

Having drug education programmes that give people some useful information about what's really harmful and what's maybe not so harmful maybe wouldn't hurt either. The current "drug education" regime is about as pathetic as abstinence based sex-ed.

Even if you don't agree with me one hundred percent, surely you see that we really do need something more nuanced than we've got now, in any case.

Posted by STC | February 28, 2008 5:05 PM

Yeah, but please don't say anything over there; with the exception of the thread from hell, I really try to avoid anything having to do with politics at that site.

Posted by Will Allen | February 28, 2008 5:08 PM

STC,

cocaine, meth, and heroin can be harmful and are without doubt strongly physically addictive

I don't know about heroin, but I can say that coke and meth are not physically addictive.

People need to keep in mind that you're never going to read an article in the NYTimes about a guy who uses drugs, enjoys them, gets bored with them and stops... and then goes on to live happily ever after.

Posted by Jmo | February 28, 2008 5:21 PM

Prohibition got people drinking crap like industrial alcohol and assorted other poisons that had a decent chance of leaving the drinker blind/dead/otherwise fucked (but was fun until you couldn't see).

I wonder if the drugs you see on the street aren't the equivalent of bathtub gin; cheap, easy to make, and far more dangerous than it would be if you'd just let Jack Daniels open up an opiates division.

Posted by Toxic | February 28, 2008 5:30 PM

Jmo -- Besides the one about Obama, of course.

Posted by Matt B | February 28, 2008 5:36 PM

jmo and STC,

Your posts are full of claims that are either just flat wrong, or highly misleading. jmo, meth is highly addictive. Its pharmacological effects have been extensively documented. STC, most drugs that are prohibited by law in the U.S. are also prohibited by law in the Netherlands. The criminal penalties for drug offenses under Dutch law tend to be somewhat weaker than the penalties for the same offense under U.S. law, and possession of small amounts of marijuana for personal use is tolerated under certain conditions even though it is still technically illegal, but drugs in general are in no meaningful sense "legal" in the Netherlands, and producing, trafficking, dealing and possessing all Schedule I ("hard") drugs, including heroin, cocaine, amphetamines and LSD are felony crimes punishable by imprisonment.

Posted by Mixner | February 28, 2008 5:58 PM

I don't know about heroin, but I can say that coke and meth are not physically addictive.

Yeah, you can say it. Doesn't mean you know what you're talking about, but you can say it.

At any rate, I think this country's drug laws would be a lot more sane if marijuana were treated primarily as a public health issue and regulated along the lines of tobacco and alcohol products.

Posted by anony-mouse | February 28, 2008 5:59 PM

Cocaine and amphetamines are Schedule II: some medicinal uses but tightly controlled.

Before SoV jumps down my throat: this message brought to you by our friends at the DEA

I also wonder how anyone--of any color--ends up in federal prison for mere possession. Maybe the argument is that the intent to distribute part of the charge was bogus?

Posted by Rob Lyman | February 28, 2008 6:08 PM

Rob,

Now that I think about it - maybe that 5% result from a plea bargain? For example, they arrest you with 2kg of coke - if you tell us who you bought it from, we'll let you plead down to simple possession. I could see that happening quite a bit.

Posted by Jmo | February 28, 2008 6:14 PM

Rob-

I may be wrong but if The Wire is any indication, a person arrested for drug possession may land in federal prison if they have (violent) priors on their record.

Posted by RICKM | February 28, 2008 6:14 PM

Yes, heroin is addictive. Almost, but not quite, as addictive as nicotine. On the other hand, it doesn't have some of the nasty side effects on the lungs that smoking has.

Personally, I don't want to be anywhere near anyone who is smoking. And I'm seriously allergic to even tiny amounts of second-hand marijuana smoke. But that doesn't mean that they ought to be illegal, rather than just socially unacceptable.

Sorry, addictiveness is not a sufficient justification to make something illegal. Prohibit selling to minors? Certainly. Prohibit driving under the influence (for those which impact reflexes and/or judgement? Absolutely. In short, treat them like alcohol or tobacco (albeit without the subsidies tht tobacco gets).

Posted by wj | February 28, 2008 6:19 PM

Reviewing the law, I retract my question. 21 USC sec. 844 does make federal imprisonment for simple possession possible in principle. But this is a rarely used provision; anyone who attracts federal attention goes under 21 USC sec 841, which requires intent to distribute. That's all I ever saw during my time in federal court, and I mistakenly believed that there was no federal simple possession statute. Oops, my bad.

Jmo: I've never heard of 2kg being bargained down to simple possession in federal court. I have seen 2kg bargained down to 500g, plus points for acceptance of responsibility and drop the marijuana charge. Tell us where you got it and you might see a substantial assistance or Rule 35(b) motion.

Posted by Rob Lyman | February 28, 2008 6:29 PM

Violent crime increased dramatically after the War on Drugs started. The War on Drugs has also given us the siezing of property from people who aren't actually even tried for a crime.

Prison is a pretty big hammer to be using for relatively minor things like smoking joints. But as drug use continues apparently unabated, the laws continue to get harsher and harsher... but seem to be no more effective. The DEA certainly doesn't rate its own effectiveness in terms of number of drug users currently active... it rates itself in terms of number of arrests and amount of drugs siezed.

Posted by Earnest Iconoclast | February 28, 2008 6:41 PM

Dear Mixner - You make a blanket statement that my post is full of incorrect or misleading information but you fail to debate the points. I never stated that most proscribed drugs in the US aren't also illegal in the Netherlands, rather, my point was that the rather more liberal drug policy of the Netherlands relative to that in the US does not lead to the degeneration of Dutch society, anarchy, rampant drug abuse, etc.

Compared to the US, the law in the Netherlands is in fact quite a bit more liberal. For soft drugs, and cannabis in particular the situation is, I believe, basically de facto decriminalization for personal use (unfortunately, I have not been able to verify this firsthand, but European friends and people that I know who have travelled there seem to confirm). Hard drugs continue to be proscribed. I would say it is more of a fair compromise between the prohibitionists and users. This is at minimum what I advocate in the US, though I still think it would be even better to explicitly decriminalize cannabis and institute a fair tax on use.

And the net result of this policy? Drug use in the Netherlands as a proportion of population is lower than that in the USA and many European countries, as are drug-related deaths. The Dutch do just fine leaving the harmless cannabis using minority alone and making treatment available to those who wish. I don't think the Netherlands have descended into anarchy as a result.

It's not just the Netherlands that has liberalized with regard to cannabis, by the way. Great Britain has recently reclassified cannabis into, I believe, their equivalent of our Schedule III. Penalties for and enforcement of the law against personal cannabis use in other English-speaking countries in the West such as Canada and Australia are less harsh than those of the US. You don't have to look far for anecdotal evidence of this. As is the case with many social issues, the US is really being quite retrograde.

Prohibition of cannabis use has no basis in scientific fact and harms cannabis users infinitely many orders of magnitude more than the actual act of using the drug itself. The American Medical Association thought so back in 1937 when prohibition was begun, the blue ribbon panel convened by Richard Nixon to study the issue thought so back in the late sixties, and numerous subsequent studies since then have said so as well.

Posted by STC | February 28, 2008 6:49 PM

I also wonder how anyone--of any color--ends up in federal prison for mere possession. Maybe the argument is that the intent to distribute part of the charge was bogus?

It's hard to find clear data, but it appears that actual prison time for simple possession of small amounts of marijuana is rare under either state or federal law. In many jurisdictions, possession of small amounts of marijuana without intent to distribute does not carry a custodial sentence at all, and even where it does, the sentence is usually suspended if the offender agrees to enter a drug treatment program.

The idea that America's jails are teeming with people sent to prison because they were found with a couple of joints in their car is a myth promoted by people who seek to create the impression that current drug laws are much harsher than they really are.

Posted by Mixner | February 28, 2008 7:02 PM

Dear Jmo -

My opinions are mostly shaped by my own firsthand experience and my observations of a very wild group of acquaintances that I used to keep; it is true that someone can use cocaine or methamphetamine or really anything for that matter very judiciously and not become addicted; the idea of "use it once and you're hooked" is of course total bunk for any drug. But conversely, I have also known people who were seriously strung out on coke and meth, people who stole for coke, people who screwed for coke. Don't get too excited, Mixner, because I'm about to say that these are things I never saw in the hardest core pot smokers and hallucinogenic users - there's a big difference. I have seen coke and H seriously mess up some people who were too weak willed to handle it. I do honestly believe in total decriminalization of all recreational drug use but I am willing to concede some ground and compromise with the rest of society in my arguments and mostly concentrate on my main interest of cannabis liberalization.

Now, I don't know about making the New York Times but I do know many folks who attended the same fairly prestigious state university as I who smoked pot and experimented with magic mushrooms and maybe some acid or ecstasy and they have all graduated and moved on to the regular sort of successful young professional normalcy that you would expect. I don't really keep in touch.. maybe they still smoke a joint once in a long while, but I would strongly doubt they go any further than that anymore.

Posted by STC | February 28, 2008 7:08 PM

STC,

You make a blanket statement that my post is full of incorrect or misleading information but you fail to debate the points. I never stated that most proscribed drugs in the US aren't also illegal in the Netherlands,

Sorry, but you wrote:

I hear so much of this notion that that if drugs were legalized, society would fall into anarchy and everyone would just be drugged out all the time. I think this is patently ridiculous. Not a single currently proscribed drug was illegal in the US before 1935. I think society was moving along pretty well back then. The lack of drug prohibition didn't much hamper the development of Western society as we know it. Modern-day Amsterdam hasn't sunk into the sea, has it?

Your statements imply that "if drugs were legalized" the U.S. would be like Amsterdam and that Amsterdam "lacks drug prohibition," when in fact the truth is the exact opposite. This is what I mean about your post being riddled with false and misleading statements.

Compared to the US, the law in the Netherlands is in fact quite a bit more liberal.

No, Dutch law is not "quite a bit more liberal." The production, trafficking, dealing and possession of most drugs, including all the common "hard" drugs--heroin, cocaine, meth, LSD, etc.--is prohibited by law and punished by imprisonment in the Netherlands just as it is in the U.S. Possession of small amounts of marijuana is tolerated (the law is not enforced) under certain conditions, but in the U.S. simple possession of small amounts of marijuana typically carries only a fine or a requirement for drug treatment in lieu of jail time.

Posted by Mixner | February 28, 2008 7:23 PM

Mixner

The point isn't that "simple possession" marijuana users are serving long sentences. The point is that "simple possession" drug users, if they are also poor and/or black, are getting criminal records that permanently wreck their chances of employment and their chances of becoming productive members of society.

It's not enough that the offender "agree" to enter a treatment program. It is also necessary that the offender HAVE THE MONEY to PAY for a treatment program- they aren't cheap, and they aren't publicly funded if you're poor. Remember Rush Limbaugh? He paid thousands of dollars to resolved his drug charges- and ended up with a clean record. If he'd been poor, he would have served some jail time and come out with a criminal record.

And when the person completes the drug progam, he/she has to spend MORE money on a lawyer to have the conviction erased- a service not covered by public defenders.

Posted by Anne E | February 28, 2008 7:58 PM

Getting back to Megan's point, perhaps we should do something to help released convicts get jobs. After all, ex-cons with jobs are likely to behave better in the short and long runs.

Business are reluctant to hire ex-cons partly from fear that they will commit crimes in the workplace, partly from fear that they will be unproductive (if ex-cons had the skills and attitudes to be highly productive, they might never have earned their criminal records), and partly from fear that they will be less reliable workers (since they want time off to meet parole officers, are more likely to be rearrested, are likely to get drunk or injured hanging around with old friends and miss work, etc.).

We taxpayers could alleviate those fears to some extent by providing "insurance" and "bounties" of one sort or another to businesses that agree to employ ex-cons.

Suppose we addressed productivity and reliability fears by making ex-cons ineligible for unemployment payments and relieving employers of paying unemployment tax on ex-cons (also excluding hiring and firing of ex-cons from an employer's UI experience rating). This simple step would allow employers to hire an ex-con-- and more importantly, fire him if he proved unproductive or unreliable-- without having to support him (through the UI system) for six months or more after dismissing him.

Tinkering with UI might not be quite enough, since an employer might still be reluctant to risk wasting training costs. We could offer an extra incentive to employers: rebate the employer's share of Social Security taxes (FICA) on ex-cons. This would have the advantage of being worth more to the employer as an ex-con's wages rose. Of course, the ex-con employee would end up with less in his notional Social Security account so he might get a smaller Social Security cheque upon retirement-- but he would have no reason to complain; if he remained unemployed he would never qualify for even the minimum Social Security payment.

(Tinkering with UI or FICA could be limited based on length of employment or other factors, of course.)

What about the danger that an ex-con would commit new crimes in the workplace? This would be tougher to insure against, in part because too-generous insurance might motivate an employer to neglect his supervisory duties, and in part because damages due to violence could be very high (of course there would be fraud problems as well).

Perhaps we should offer partial insurance against property crimes (theft, vandalism, etc.) by most ex-cons, and partial insurance against damages due to violence by ex-cons without violence in their records. It would obviously be stupid to just offer to pay, say, half of damages caused by ex-cons, because all claims would immediately be inflated to double their true value. I can think of better approaches. The simplest would simply be to have government reimburse part of an employer's liability insurance premiums depending on the number of ex-cons employed.

We should exclude an ex-con from insurance subsidies after his workplace misconduct causes any insurance payouts. Ex-cons ineligible for insurance subsidies might be unemployable, but that is the way things are now. Fear of becoming unemployable by losing access to the subsidy might motivate many ex-cons to behave better. Right now there is no way for ex-cons to distinguish themselves as more- or less-employable, but showing eligibility for insurance subsidy (by maintaining good behaviour) would fix that.

The voters (that is, generally law-abiding people) might be reluctant to support subsidies for the employment of released convicts. After all, voters would not like to subsidize justly-despised criminals, and voters would be reluctant to subsidize competitors for their own jobs. I think that the first two subsidies I propose (excluding ex-cons from the UI system and rebating employers' FICA taxes for ex-cons (from ex-cons' notional accounts) could win approval of voters, because in both cases the ex-con would largely pay for his own subsidy.

The liability-insurance subsidy would be harder to sell, but really, so long as it cost less than welfare payments to ex-cons plus the cost of the extra crimes they committed while unemployed, it would be worth it.

Posted by Mark Seecof | February 28, 2008 8:15 PM

Anne E,

The point isn't that "simple possession" marijuana users are serving long sentences. The point is that "simple possession" drug users, if they are also poor and/or black, are getting criminal records that permanently wreck their chances of employment and their chances of becoming productive members of society.

There seem to be a number of different points rather than just one single point. If your own point is the assertion you make above, then you need to support it with evidence. It's important to read studies carefully, lest you make wildly extravagant claims that are simply not supported by the actual research.

It's not enough that the offender "agree" to enter a treatment program. It is also necessary that the offender HAVE THE MONEY to PAY for a treatment program- they aren't cheap, and they aren't publicly funded if you're poor.

Is it? Can you substantiate this claim, either? For what proportion of drug offenders given the option of drug treatment in lieu of jail time is lack of funds a significant obstacle to accepting that option?

Posted by Mixner | February 28, 2008 8:17 PM

I don't think the proportion matters at all. If 10,000 citizens are arrested for simple possession, and 9,900 have the funds to pay for drug diversion, the injustice to the 100 who don't have the money is still injustice- despite the low proportion. Especially as the criminal justice system is ruining their lives in the name of HELPING them.

There are some charitable drug treatment programs that use sliding scale fees, but they are few and typically have huge waiting lists. Where I live there is no public program to pay for private (i.e. for profit) drug treatment for indigent defendents, and I've never heard of one in any other state. And it's the private programs that have slots available.

I've already quoted my source for the fact that black men with a criminal record are facing impossible odds in getting a job.

Posted by Anne E | February 28, 2008 8:27 PM

I had the experience of heavy drug use, it became a horible thing, but not only do people have a right to make that choice, it is insane to toss people into jail for it

If more than 1/3 of convicts are in for using or trafficking in drugs, WE are destroying these people's lives - drugs may or may not (unlikely to) destroy their lives, prison certainly will destroy them

I came through the 60s and 70s when many people tried drugs, sometimes heavily, and most could simply go on with there lives (Gore, Obama) even former drug addicts or alkies like Larry Kudlow or Ann Rihards can pull their their lives together -
how many ex-cons can you say that about?

It is simply an outrage what we have done putting so many young people into prison

Posted by jozef | February 28, 2008 8:35 PM

Anne E,

I don't think the proportion matters at all. If 10,000 citizens are arrested for simple possession, and 9,900 have the funds to pay for drug diversion, the injustice to the 100 who don't have the money is still injustice- despite the low proportion.

Yes, but it's not nearly as big a problem as it would be if 1,000 or 3,000 or 5,000 of them lacked the funds, is it? You seem to have a rather exaggerated idea of the ability of governments to solve social problems. Public policy isn't about perfection, it's about tradeoffs and compromises.

But I have to say your claim here strikes me as highly implausible. That's why I asked you to substantiate it. I'm still waiting for you to do that. Drug treatment is almost certainly cheaper than incarceration, so it seems rather unlikely that the government would offer the option of drug treatment in place of incarceration and then refuse to fund it. The government would be saving money by paying for drug treatment instead of incarceration.

Posted by Mixner | February 28, 2008 8:41 PM

Yes, but it's not nearly as big a problem as it would be if 1,000 or 3,000 or 5,000 of them lacked the funds, is it?

That depends on why they're getting locked up. If the punishment fits the crime, then the rest is consequences of making bad choices. Tough crap, dude; take your medicine and rethink your future choices.

But if the crime is largely a contrived affair invented by Your Know-Betters in order to serve their narrow perceptions of what an "ideal" state looks like without any other compelling moral or utilitarian argument, then one life destroyed is too many, regardless of how many others find ways and means to game the system.

Posted by anony-mouse | February 28, 2008 10:01 PM

Jeffrey Miron's summary is exquisite, almost poetic in is pithy brevity. I certainly agree with it. I would go further and suggest that the unchanneled money is much more dangerous than the drugs themselves. The motivation to sell causes recruitment of ever younger users. The profits corrupt our own government as well as nearly destroying some others. The temptation of a quick buck disrupts young people from climbing a more normal ladder of success and distracts them from any hope of education at an early age.

I really don't understand why, if we're not going to legalize these drugs completely, why we don't enforce it? The answer is always that we're trying. But I don't believe it. If we were really trying to eliminate the illegal drug sales, why wouldn't we explicitly address the profit? Wouldn't it be easy for the government to sell the drugs only to known users? That wouldn't make any difference in the amount of usage, but it would eliminate most of the profit while protecting the health and social potential of those known users. Drugs could be tagged to prevent easy resales, and even if the drugs were resold, it would still undermine the profit motive.

The only caveat I can think of, and I hesitate to mention it, is that without honorable employment for sub-working-class entry level employment candidates, what would the current sales force do instead? If they can't make their illegal profits in drugs (nor gambling any more), will they resort to something even worse?

Posted by jj mollo | February 28, 2008 11:44 PM

Your analysis assumes that government financial decisions are made rationally- not a realistic assumption. In California, where I live, the Prison Guard's Union is a huge force in politics because of the campaign contributions they make- and the Prison Guard's Union has regularly opposed diversion for drug offenses even for people who can afford it.(Basically, "you need to lock a lot of people up so we guards have job security!") Government financial decisions are full of "penny wise, pound foolish" decisions- e.g. Medicaid will pay for amputations for poor diabetics but will not pay for much cheaper diabetes maintenance (glucose monitors, test strips, etc.)

I'm not going to try to prove a negative for the huge number of polities involved in the US drug wars. I know what I said is true of California. Can you point to a single court system that does reliably pay for drug treatment for indigent "simple possession" defendents? A polity that pays enough to EXPUNGE THE RECORD for someone who cannot afford a private lawyer?

About the proportion of defendants who can't afford diversion- if one life is unnecessarily wrecked, to me that's a big problem. Plus, if you're talking proportion, that would imply that 1000 poor defendents whose lives are ruined are OK as long as 99,000 middle class people go to diversion- but it's wrong to wreck the lives of 1000 poor drug users if there's only 100 middle class drug users to "balance" them. That's crazy.

Posted by Anne E | February 29, 2008 12:05 AM

I don't think a fair-minded, reasonable person could study drug prohibition and come out in favor of prohibition.

The people who are pro-drug prohibition are either incredibly ignorant, or religiously dogmatic about prohibition. It is hard to believe that people can defend drug prohibition with a straight face.

Thanks median voter!!!

Posted by GU | February 29, 2008 12:38 AM

I have great respect for Mixner's opinions, but on this issue I think he's got a fundamentally flawed set of basic assumptions, first among them that we need a multi-billion dollar, militarized, international State policy to save us from ourselves. An irreducible, certainly quite small, minority of people are going to ruin their lives with drugs NO MATTER WHAT. Let them. Drug abuse is an essentially self-limiting problem if people are allowed to experience the normal consequences of their own decisions. The particulars of any "new" drugs aren't really a factor here.

The total costs to society of criminalizing behavior that has been a generally marginal feature of human culture since the Ice Age are difficult to calculate, but clearly staggering. Maintaining the infrastructure alone is one thing, but the loss of human capitol seems to me likely much worse.

In foreign policy terms, the Global War on Drugs is enormously helpful to our worst enemies, and particularly the enemies of allies like Hamid Karzai. In Columbia, off-setting contributions from the US Government on one hand, and American consumers on the other, have fueled a perpetual, unwinnable civil war with the public in the crossfire. Our disastrous relationship with Mexico is significantly exacerbated by it. And etc.

Attempting to shift blame for drug abuse from recreational users in rich countries to dirt-poor farmers in the Third World is morally and pragmatically indefensible.

Posted by Robert Powell | February 29, 2008 6:05 AM

If more than 1/3 of convicts are in for using or trafficking in drugs, WE are destroying these people's lives

[....]

It is simply an outrage what we have done putting so many young people into prison

[....]

But if the crime is largely a contrived affair invented by Your Know-Betters in order to serve their narrow perceptions of what an "ideal" state looks like without any other compelling moral or utilitarian argument, then one life destroyed is too many, regardless of how many others find ways and means to game the system.

See, I just can't get into this frame of thought.

Ok, maybe I could agree that many drug laws/penalties might be the equivilant of getting a year in prison for pissing on a fire hydrant. But - damn - how stupid are you if you risk that chance to do something so inconsequential??

Seriously...nobody is forcing people to do drugs. They are making a CHOICE. One that in and of itself is at best personally inconsequential, at worst personally stupid. And those that traffic are looking for quick & easy money without regard to or respect of society's laws, not unlike the top brass at Enron. I have 0% sympathy.

An irreducible, certainly quite small, minority of people are going to ruin their lives with drugs NO MATTER WHAT.

It seems the whole point of this post is just the opposite: that rather an irreducible, certainly quite large, majority are ruining their lives.

Posted by TakeFlight | February 29, 2008 9:26 AM

I'm quite certain that nothing I wrote infers that a "majority are ruining their lives". On the contrary, the majority figures out how to manage their affairs in whatever cultural context they have affairs.

A small minority in virtually every culture doesn't.

It's possible to score drugs in a maximum security prison. Should we try to turn our society into a prison in the clearly fruitless attempt to save this minority from themselves?

Posted by Robert Powell | February 29, 2008 12:13 PM

Robert,

The "post" I was referring to was Megan's, and more specifically those who have commented above that it is "something like a third of black men" that are ruining their lives.

Overall, I agree with you that drug use is (or should be) a "marginal feature" of our society and I also agree (somewhat) that our criminalization of this behavior isn't fully justified.

I disagree, however, with the idea that the criminals are not responsible for their behavior or that "WE are destroying these people's lives."

If a third of black men are convicts it is because of their choice of criminal behavior. End of story.

I would like to think that ending the "war on drugs" would also end problems like this, but I suspect that to some extent the criminals will just find other criminal behaviors because (1) the idea is to make fast money that you can't otherwise do without sports skills or an education, and (2) the dysfunctional ghetto ("street," "hip-hop," "black," or whatever you want to call it) culture is closely intertwined with and approving of criminal behavior.

I think this is more of a cultural problem than most are likely to admit. I'm curious what others think.

Posted by TakeFlight | February 29, 2008 1:03 PM

Although I am more than willing to concede that some portion of the prison population did not commit a crime worthy of incarceration, it is equally obvious that there are substantial numbers of individuals still on the street who belong behind bars. As for the figure of 1%, I fail to see why this should be so shocking. In any group of 100 adults chosen at random, can there be any doubt that at least one or two on average will have committed a serious crime?

Those who are caught and convicted, pay a price, a price not limited to time behind bars or on probation. By his actions, even the rehabilitated criminal has forever limited his choice of profession. This is as it should be.

Only the completely muddle headed would hire a convicted embezzler as accountant, child molester as baby sitter or convicted rapist to manage a girls basketball team. It is worth noting however that excluding the former criminal from some fields does not mean that he is excluded from all employment. To maintain that the convicted can't find work or can't find a job that pays well solely because of a prior conviction is a cop out. The uneducated individual who's only record of gainful employment was making license plates, can't expect to start out at $40,000. Sorry, that is not society's fault, nor can it be laid at the feet of the criminal justice system.

Posted by Paul ADK | February 29, 2008 1:35 PM

"One thing I'd like to add- money has a lot to do with whether simple possession results in incarceration." Anne E

Yup. My class President in High School was this rich kid who later dealt drugs. He also threatened his parents' life. He served little jail time. Although for me what this story means is we need to lock up more rich punks. That kid had someone absent parents who refused to see the problems he had until it was too late. He's still addicted and sometimes violent. Maybe if they'd institutionalized or even imprisoned him he would've straightened out a little. (Okay maybe not, but what they did do didn't work either)

"Yes, heroin is addictive. Almost, but not quite, as addictive as nicotine." wj

On what are you basing the claim it is less addictive than nicotine?

"On the other hand, it doesn't have some of the nasty side effects on the lungs that smoking has." wj

No, it just has worse side affects on the rest of the body. Death from a nicotine overdose can happen, but it's very rare. Most cases I know of involve babies eating cigarettes.

Exempting maybe William S. Burroughs heroin users don't normally live to the ripe old ages you find in many smokers. They may cost the healthcare system less by dying young, and sometimes quickly, but I wouldn't call that ideal.

"Violent crime increased dramatically after the War on Drugs started." Earnest Iconoclast

In 1937 the act on Marijuana came in. Homicide rates went down everyone of the next 6 years. In 1951 further penalties were placed on drugs. Homicide rates went up in 1952, but didn't equal 1951's (essentially low) level again until 1963.

The modern "War on Drugs" started in 1969. After that homicide rates did rise consistently until 1974, but their rise had begun many years before 1969. In 1967 homicide rates had risen to a point higher than they'd been in nearly 30 years. By 2004 they'd gone down to what they were in 1966.

http://www.ojp.usdoj.gov/bjs/glance/tables/hmrttab.htm

Granted this is just homicide, but Sweden and Japan both have highly restrictive rules on drugs including cannabis. Their generalized violent crime rate I believe is below ours. Admittedly comparing violent crime rates by nation is difficult so unfortunately all I could find is on homicide again.

http://hdrstats.undp.org/indicators/263.html

Both have rates below us. Japan's homicide rate is listed as below the Netherlands while Sweden's is noticeably higher than the Netherlands. Both Sweden and Japan have a lower number of prisoners per-capita than the Netherlands.

http://hdrstats.undp.org/indicators/265.html

Note that per-capita the Dutch, although they certainly have less prisoners than us, have more than Australia or Belgium.

Comparisons to alcohol prohibition fall apart for varied reasons including that alcohol prohibition was never anywhere near as universal as prohibition of even cannabis/marijuana. Non-medicinal alcohol use is also a longstanding part of many more Westernized cultures than is true of cannabis or heroin.

Posted by Thomas R | March 1, 2008 2:38 AM

"In 1937 the act on Marijuana came in. Homicide rates went down every one of the next 6 years."

I see I was too focused on the years I wanted to look at. Homicide rates had been declining since 1933. I kind of doubted restrictions on marijuana would've caused any decline, but I think it can be claimed the restriction on marijuana did not effect the already existing decline that started in 1933.

Posted by Thomas R | March 1, 2008 2:42 AM

Attempting to draw a direct parallel between drug laws and crime rates is a fool's errand. Trying to do it with comparative data between different societies and historical periods compounds the fundamental fallacy.

--It is wildly implausible clinically that marijuana use and murder rates have any imaginable connection. In terms of this discussion, the gangster shootouts and the arrests for possession directly caused by prohibition are the only links.

--Given the fact that our society was regimenting for and actually fighting in WWII for much of the period 1937-1943, I'd expect a significant impact on the murder rate.

--There are much more significant differences than drug laws between Holland, Sweden, and Japan, not to mention the US. And etc.

Demographics and social norms are the main determinates of crime rates. Our crime rates were highest when the Baby Boomers were in the high-crime age range and there was major social disruption.

Posted by Robert Powell | March 1, 2008 6:07 AM

Just because someone is in jail for a "non-violent" drug possession crime doesn't mean that person isn't a violent criminal. In fact, chances are, he is. Slam-dunk drug charges have become a handy proxy for charging violent offenders with their other, more difficult to prove crimes. Busting a gang-banger for the crack you found in his car is easier than getting "don't snitch" witnesses to testify against him.

Posted by Fred | March 1, 2008 1:17 PM

I’m incredulous that anyone could seriously believe that the reason one-third of low income black men are in the criminal justice is just that those are bad, bad, bad guys. There are a LOT of other reasons.

First, many urban police income treat low income black teenagers like The Enemy. I have volunteered in inner city schools, and have personally seen students hassled (searched, threatened with arrest) for things like eating lunch on the school front steps (which would NOT be treated as an issue in a middle class area). Some years back I had a roommate who was dating a policeman, and he was quite open about the practice. His rationale was that “I hate it when they do something really bad and the court ‘gives them a chance’ because it’s a first offense. So I make sure when they do something bad it’s the second offense, and they get some serious consequences. If they don’t ever do anything bad, they’ve only spent a little time in jail, so no harm was done.” (By way, he always had top-quality pot to smoke, confiscated from the people he arrested for smoking pot.)

However, harm WAS done. These kids get a record, which makes it unlikely that they’ll get a decent job. They also lose faith that they be treated fairly. They lose the sense that they are stakeholders in society.

Then there’s what happens once they are in the system. Even when they serve no actual time, any kid in the criminal system is bombarded with non-negotiable demands to appear- for probation appointments, for hearings, for drug testing. Even ONE failure to appear triggers a warrant. And inner-city kids lead chaotic lives- they may not have alarm clocks, the mail may be stolen, they move frequently, they may not have reliable transportation. And they haven’t been socialized to show up reliably on time for appointments.

A friend of mine is a passionate pro-lifer, and has repeatedly served jail time for non-violent sit-ins at abortion clinics. She has told me that many of her co-inmates were originally convicted of something quite small, but were now hopelessly enmeshed in repeated jail time because they just don’t have the middle class life skills to reliably respond to repeated demands that they show up.

In a previous post, I mentioned Patrick Dorismond, who was killed by NY police. He got into an altercation with undercover drug officers who were pressuring him to tell them where they could buy drugs. That was a situation where it was NOT ENOUGH to refrain from being a drug dealer to avoid arrest. If a thoughtless teenager had casually said “they sell drugs in the brick house down the block”, just passing on neighborhood gossip- that thoughtless teenager would have gone to jail as a drug dealer, even though there had been NO INTENTION TO PROFIT from the information passed along. Again, no middle class neighborhood would tolerate a police trap intended to ACTIVELY INDUCE local teens to do something illegal so they could be arrested.

Posted by Anne E | March 1, 2008 6:39 PM

"I’m incredulous that anyone could seriously believe that the reason one-third of low income black men are in the criminal justice is just that those are bad, bad, bad guys."

Do you think it's a lie that blacks commit crimes at 7x the white rate? If you think that's all myth, then move to a black neighborhood and send your kids to the local public school.

Posted by Fred | March 1, 2008 11:04 PM

Fred, I didn't say that, or anything remotely like that. I said that society poses STRUCTURAL obstacles to low income black guys being productive members of society. It's simplistic and immoral to blame the results solely on the black guys.

I know this is too much information, but let me give you a parallel from my own life. When I was 14, my bedroom window was jammed open, and my room did not connect to the house heating. It got EXTREMELY cold at night. I asked my parents for an additional blanket, and they chose to regard that as arrogance. They told me I could NOT have an additional blanket- but they decided to store two very warm quilts in my room. The subsequent four years were a nonstop drama of me trying to sneak access to the quilts, and my parents trying to catch me at it so they could punish me for disobedience. A really good way to run a family, no?

To this day, my mom is shocked- SHOCKED- that I was so disobedient in the matter of the quilts. But there's something wrong with situation that asks someone to chose between being a victim and being a villain. A better scenario is to give everyone- me at 14 years old, and also an inner city teenager- a chance to do the right thing and also survive.

Posted by Anne E | March 1, 2008 11:54 PM

Fred--
Your suggestion that Blacks are genetically inclined to crime is appalling. This is the kind of nonsense that makes winning arguments on objective conservative merits an uphill battle.

Currently the Global War on Drugs is Exhibit A in the argument that the Nanny State is an enormous boondogle at best, and a counterproductive social and foreign policy disaster at worst.

Posted by Robert Powell | March 2, 2008 2:51 AM

First, let me say upfront that I do not believe that blacks are "genetically inclined to crime" or "inferior" in some way due to race. I do believe a good case can be made that the "street" culture that many blacks seem to have appropriated as their own is inferior and has a far-reaching, negative impact on young blacks.

I’m incredulous that anyone could seriously believe that the reason one-third of low income black men are in the criminal justice is just that those are bad, bad, bad guys. There are a LOT of other reasons.

I don't know about "bad, bad, bad guys" but to the extent that someone is in prison because he broke the law I think he has 100% personal responsibility.

To the extent that someone is in the system despite not having broken any laws, that is a real problem that certainly needs to be addressed.

...any kid in the criminal system is bombarded with non-negotiable demands to appear- for probation appointments, for hearings, for drug testing. Even ONE failure to appear triggers a warrant. And inner-city kids lead chaotic lives- they may not have alarm clocks, the mail may be stolen, they move frequently, they may not have reliable transportation. And they haven’t been socialized to show up reliably on time for appointments.

Perhaps we should send a wakeup call to their cell phone and a limo?

...many of her co-inmates were originally convicted of something quite small, but were now hopelessly enmeshed in repeated jail time because they just don’t have the middle class life skills to reliably respond to repeated demands that they show up

Please. "Honestly, judge, it's not my fault - I don't have middle-class life skills." I don't even know how to respond to this...I'm speechless.

...society poses STRUCTURAL obstacles to low income black guys being productive members of society.

No, inner-city "black*" culture poses obstacles to low income black guys being productive members of society.

* This is no more authentic "black" than wearing a kilt is.

Posted by TakeFlight | March 3, 2008 9:19 AM

First, you do the crime, you do the time. Individual responsibility unavoidable.

Second, the role of race in our current legal justice conundrum is not a matter of dispute--it's a big one. But it's also a complex one, and if we're really going to draw the proper lessons, it's not going to be sufficient to single out racist cops, lousy public defenders, "inner-city 'black' culture", the legacy of slavery, unintended negative consequences of welfare programs on (especially but not only) poor Black families, migration patterns, the overall economic decline of urban blue-collar communities, or any one of the several other factors involved.

The proper focus here is on the role of the state. To the extent that we can identify state policies or programs that make matters worse, we should modify, or better, end them. Some progress was made with welfare reform. More is needed in education and legal justice policy. The single most effective place to start reform would be drug policy. Criminalizing what is essentially a medical/social problem is wildly counterproductive in terms of both domestic and foreign policy concerns.

Posted by Robert Powell | March 3, 2008 2:04 PM