Politicians: Have you talked to your constituents about drug policy?

Thanks to Deven and the rest of the Concurring Opinions crew for the opportunity to guest-blog this month, I’m very excited to be here.  I’ll be blogging mostly about drug policy issues, though I will likely touch on some other topics along the way as well (warning to those easily bored: this may involve me giving into my nerdiest law nerd-temptations and writing a post or two about facial and as-applied challenges.)

In my first post here though, I’d like to raise the question of why it is that reforming drug policy in the United States continues to be such a taboo political topic.  This something that I think about often, but it is especially fresh in my mind with some less-surprising-than-it-should-be-news from today about Senator Jim Webb’s (D-VA) bill to create a historic blue-ribbon commission to study our nation’s criminal justice system, with a focus on reducing our unusually high incarceration rate.  Sen. Charles Grassley (R-IA), has proposed an amendment to the bill that would prohibit the commission from making any “findings related to . . . criminal justice policies and practices or reform recommendations that involve, support, or otherwise discuss the decriminalization of any offense under the Controlled Substances Act or the legalization of any controlled substance listed under the Controlled Substances Act.”

Grassley’s proposal would be odd enough if it merely prevented the panel from recommending the decriminalization or legalization of any controlled substance.  After all, it isn’t as if Webb’s commission will be writing the laws themselves; their task will to make recommendations that law-makers would be free to ignore or follow as they choose.  Grassely’s proposal goes beyond restrictions on recommendations, however, by seeking to prohibit even the mere discussion of decriminalizing or legalizing any controlled substance.  While Grassley is at it, maybe he should also instruct the commission members to shield their eyes from recent reports by the United Nations and the CATO Institute that found Portugal’s 8-year-old drug decriminalization policy has been a great success.

Of course, Grassley is far from alone among politicians in his aversion to even discussing alternatives to our current drug policy.  In many ways, President Obama’s “drug czar” Gil Kerlikowske has been a breath of fresh air for his willingness to entertain and even advocate for certain drug policy reforms.  But, when asked about legalization, his stock answer is that “legalization is not in the president’s vocabulary, and it’s not in mine.”  Even the judiciary has gotten into the act, with the Supreme Court’s 2007 decision in Morse v. Frederick, which held that the First Amendment does not apply to protect student speech that school officials reasonably view as promoting illegal drug use.

So: why are we so afraid even to discuss ideas like decriminalization or legalization?  For some of my quick, initial thoughts (and a request for yours as well), follow me to the flip…

One answer might be that politicians are afraid of a backlash at the polls, and I do not doubt that this is part of the reason.  At the height of the drug war in the 1980’s it may have even been a major reason.  But, today, I don’t think that we can explain it away that easily.  For one thing, some major drug policy reforms are now relatively popular among voters.  Though only 40-45% of Americans favor legalizing marijuana, for example, the idea is still more popular than a number of issues that are considered to be perfectly within the mainstream of political thought, including decreasing immigration levels or support for the war in Iraq.

And, polls aside, the issue I’m raising here is a more fundamental one.  My concern is not the opposition to, say, legalizing marijuana; it is the reluctance to even discuss these issue (or, in Kerlikowske’s case, to acknowledge that he or President Obama knows what the definition of the word “legalize” is.)  In this sense, I think that drug policy occupies a fairly unique place in our political discourse.  There are plenty of issues with strong feelings on both sides and still many others where both parties are mostly united in their views.  But, I have a very hard time coming up with examples of other issues where we as a society seem to live in fear of the simple mention or study of a key set of policy options.

I believe there are a number of different factors that may explain why drug policy reform is so uniquely disfavored in our political discourse, and I’ll be returning to this question throughout my guest-blogging stint this month with additional thoughts.  For now though, I’ll close this post by very briefly offering a suggestion for one dynamic that I believe may provide an explanation.  It is that our drug policy is conceived of not just as any other policy, but as a “war on drugs” whose mission is a “drug free” society.  By framing our drug policy in these terms, the language by which we judge our policy is no longer “costs” vs. “benefits” but “winning” vs. “losing.”  And, as a result, the idea of a Portuguese-style decriminalization system with civil drug courts is not just another policy option–it becomes akin to surrender.  (For anyone who may be interested in the rhetoric of the war on drugs in more detail, I recommend this fine book by Andrew B. Whitford and Jeff Yates that was published just this year.)

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5 Responses

  1. Orin Kerr says:

    Alex,

    I don’t see it as a “taboo” political topic. To the contrary: The issue comes up all the time, as posts such as yours suggest. Indeed, I would guess that Senator Grassley wants to amend the bill out of a sense that without the amendment, the report could focus on the issue. That’s not a problem with truly taboo subjects; no one worries that such a report might recommend the legalization of child pornography, for example.

    Rather, I think the dynamic is the predictable strategy of those wanting to defend the status quo versus those wanting to challenge it. If you like the status quo, you don’t want to have folks spending a lot of time and attention questioning it. If you dislike the status quo, on the other hand, you want folks to spend a lot of time and attention questioning it. I gather from this post, and your recent op-ed in favor of marijuana legalization, that you are one who want to challenge the status quo.

  2. Alex Kreit says:

    Orin,

    Thank you for your reply, I think you raise some good points. I agree that defenders of the status quo of a given issue would, strategically, not want to have folks spending a lot of time and attention to questioning it. I also agree that drug reform is not a taboo subject in the way some truly taboo topics like the one you reference are. And, perhaps my use of the word taboo was a bit inartful. My point is not that these topics are never discussed in our society (they certainly are)–it is that I believe the level opposition to even discussing drug policy reform among politicians as unique to the issue (especially relative to other issues with comparable levels of public support.) In short: while there are plenty of issues that defenders of the status quo would prefer be considered “off limits” by (most) politicians/policy makers, drug policy reform is the only issue I can think of that has a significant level of popular support but actually is off-limits.

    Thinking about the Grassley amendment as an example, the Webb bill would take a comprehensive look at a wide range of criminal justice issues and it is no secret that one of the chief motivations for the proposal is his belief that our incarceration rate is far too high. But, of all of the potential reforms the commission may consider (many of which, I am sure, Grassley would not be pleased with), drug policy is the topic that he has introduced an amendment on. In light of the fact that the far-from-conservative Obama administration says that the terms aren’t even in the President’s vocabulary, I can’t imagine Grassley thinks there is any special threat that the commission would actually lead to the decriminalization or legalization of any controlled substances. Instead, I think that there is a fear/perception that even the discussion of decriminalization or legalization is, in part, an admission of defeat (or a sign of weakness) in our “war” against drugs and that it therefore must be avoided as harmful in itself.

    Yes, in part this is also about other things–poll numbers, the fact that discussing an issue may lead to more support of it, etc. etc. But, I think that these considerations do not fully account for the special concern and fear over simply talking about drug reform (not to mention drug use) that pervades the political discourse. Returning to marijuana legalization, for example (not because I think this is an especially important issue relative to all of the other drug policy issues, but because it is one where we have recent and reliable polling), I cannot think of another issue that has between 40-45% support among the public and that prominent politicians from both parties not only nearly universally oppose but also nearly universally say is not even worthy of discussion (e.g., Gressley’s amendment or Kerlikowske’s “not in my vocabulary” line.) Think of the issue in comparison to, say, gay rights. An issue like medical marijuana is probably just as popular as repealing “don’t ask, don’t tell”; legalizing marijuana is about in the same ball-park in popularity as is gay marriage. Yet, President Obama gave a keynote speech at a Human Rights Campaign dinner but literally won’t even acknowledge the word “legalize.” Of course, there are a wide range of factors that account for the difference between those examples [e.g., that gay rights is viewed as a civil rights/moral issue in a way that drug policy reform is not], but I think it does still provide a bit of perspective. And, at the least, it calls out for some consideration as to what does account for these sorts of differences.)

    This is all a somewhat lengthy way of saying that while the topic of drug policy reform is by no means entirely off-limits in our society, it is shunned and avoided by the political class in our country in a way that I believe is highly unusual. And, I think, it is interesting to theorize as to just why that might be.

  3. My theory is that the political establishment has already done such horrible things in the name of fighting drugs, ruined so many lives, even killed people over it, that to reform our drug laws is to admit that these things were done in vain, maybe even for a wrongful cause. It’s to admit that the political establishment has done evil.

    And so they keep doubling down, because admitting that they’re doing wrong is inadmissible.

    There’s also the matter that the war on drugs, like the perpetual war in 1984, is a wonderful excuse to expand the power of government. At least part of the political class don’t want to lose the “drug war exception” to the Bill of Rights.

  4. Orin Kerr says:

    Thanks for the thoughtful repsonse, Alex. I guess I would want to know more about the polling: Is the 40-45% in favor of legalization a stable number nationwide? Or is that just one poll, or in a particular place?

  5. Alex Kreit says:

    Rasmussen, Zogby, CBS and Gallup have each come out with polls within the past year showing between 40-44% nationwide support for legalizing marijuana. (To be honest, I was a bit surprised myself that the numbers are where they are on the issue–I probably would have guessed mid-to-high-30’s prior to these polls.)

    The Gallup poll, which is the most recent of the four, is here and includes some interesting numbers on the breakdown for regions of the country, political identity, etc.: http://www.gallup.com/poll/123728/u.s.-support-legalizing-marijuana-reaches-new-high.aspx

    Rasmussen, Zogby, CBS discussed here: http://www.fivethirtyeight.com/2009/02/americans-growing-kinder-to-bud.html