Duane C McBride. Encyclopedia of Drugs, Alcohol, and Addictive Behavior. Editor: Pamela Korsmeyer & Henry R Kranzler, 3rd Edition, Volume 2, Macmillan Reference USA, 2009.

The history of U.S. social and legal policy in regard to psychoactive and intoxicating drug use has been characterized by periodic shifts, strong ideological presuppositions, and deep disappointment. Any analysis of current policy and the debate about drug legalization must recognize the historical roots of current policy that affect the various positions in the debate.

A brief historical note may help place the current discussion of drug policy in the United States in perspective. To borrow a phrase from Ecclesi-astes, there is nothing new under the sun. Those engaged in the current, often heated, discussions about national drug policy often act as if their concerns, insights, and positions about intoxication, drug use, and society are unique to the twenty-first century. A cursory review of history indicates that the debate on the meaning and effects of alcohol and other drug use on morals, public safety, productivity, and health is at least as old as written language. Some of the earliest recorded civilizations struggled with the issue and often adopted laws and policies that attempted to regulate strictly or prohibit the use of alcohol and other drugs.

Often these laws were based on a culture’s perspective on the will of the divine or combined with basic civil codes. For example, the Torah appears to be very concerned with excessive alcohol use. It was seen as leading to gross immorality. The Christian New Testament holds similar views, particularly on the excess use of alcohol. The theme seems to be one of avoiding all things that harm the body or one’s relationship with God, and moderation even in all things that are good. The Qur’an takes a very strong prohibition stand against alcohol and all intoxicating substances. Since much of modern Western civilization derives from these religious traditions, they continue to influence public thinking and policy. From a less theocentric perspective, many ancient civil codes also struggled with the regulation or prohibition of intoxicating chemicals. For example, the Romans seemed especially concerned that slaves and women not use alcohol and forbade its use by them. The concern appeared to be that alcohol would make slaves less productive and more difficult to control and that it would also lead to female sexual impurity. Chinese emperors prohibited the use of opium among their subjects. In addition, during the sixteenth and seventeenth centuries, when tobacco use began to spread around the world, many societies, including the Ottoman Empire, Great Britain, Russia, and Japan, initially tried prohibiting the substance.

These ancient and more recent laws and codes show that the regulation or prohibition of socially perceived harmful substances is not new to the twenty-first century, nor is the range of views on the negative consequences of regulation or prohibition and what would constitute a more effective, less harmful policy.

Philosophical and Cultural Traditions

Among the many legacies that underpin the present discussion of drug policy in contemporary society are four at times overlapping and sometimes contradicting philosophical and cultural traditions. The first is the basic American heritage of individual liberty and limited government interference with any variety of human choice, even if that choice is harmful to the individual making the decision and morally repugnant to the majority of society. This position was eloquently argued by British philosopher and economist John Stuart Mill (1806–1873) in his essay On Liberty (1859).

A second major social tradition is rooted in the moral utilitarian view of government that is also a part of the nation’s heritage. The utilitarian perspective, also argued by Mill in his book Utilitarianism (1863), emphasized that government has a legitimate right to prohibit the behaviors that actually cause real harm to others. From this viewpoint, government has the right and responsibility to protect the common welfare by legally prohibiting individuals from engaging in behavior that is demonstrably harmful, not to themselves (which would have been an interference with liberty), but to other citizens.

The moral utilitarian perspective was an important underlying element in many of the late nineteenth- and early twentieth-century social-reform movements that culminated in the many state laws prohibiting narcotics and other drug use, the national Harrison Narcotics Act of 1914 and the Volstead Alcohol Prohibition Act of 1920. The utilitarian perspective was that narcotics and alcohol use caused real harm to others and society in general in the form of family poverty, crime, violence, and health-care costs.

A third social tradition that has influenced U.S. drug policy is commercialism (Courtwright, 2001). There is ample evidence that through the nineteenth century, U.S. society had a strong commercial attitude toward alcohol use and the use of a variety of powerful drugs. As has been documented by historians, merchandise catalogs and traveling entrepreneurs legally distributed opium, barbiturates, and cocaine as wonderful cure-alls for the ills of the human condition (e.g., Spillane, 2000). These merchants were an organized, respected part of the commercial establishment. Perhaps based on British narcotics commercialism, there has always been a commercial attitude toward alcohol and drug distribution in the United States. From the commercial perspective, alcohol and drugs are a wonderful commodity. They are often rapidly metabolized, highly addictive, and easily distributed. However, by the end of the nineteenth century, this rather freewheeling distribution of drugs caused a widespread public reaction that became incorporated into a variety of health- and social-reform movements.

A fourth significant element in the development of national alcohol and drug policy is a public health perspective. As was noted, at the turn of the twentieth century the United States was in the midst of major social and health reforms. After the passage of the 1906 Pure Food and Drug Act, a host of public-health-based government bureaus and regulations emerged, focusing on improving the quality of meats and other foods and requiring the accurate labeling of drugs. In addition, the American Medical Association initiated major reforms in the medical profession, eliminating over-the-counter narcotic drug advertisements in their journal and supporting the licensing of physicians as the only legitimate prescribers of many drugs. The public-health reform movements attempted to de-commercialize drug distribution and make drug use a medical, not commercial, decision. The passage of the Harrison and Volstead Acts probably represented a significant triumph of the moral utilitarian and public-health perspectives.

Following the Harrison Act and further legislation, the U.S. government instituted various bureaus and departments to carry out law enforcement and antidrug educational programs. Any review of the education programs of the Bureau of Narcotics would tend to conclude that they primarily constituted a heavy dose of propaganda with little basis in scientific fact. The federal proclivity for restricting the availability of drugs and arresting users and dealers continued strongly through the 1960s. During the decades following the Harrison Act and until the 1960s, the media and government were fairly united in their opposition to drug use, and there were few questions about the efficacy of drug laws or the social policy on which those laws were based.

The 1960s and 1970s

In the 1960s, U.S. society experienced the coming of age of the first of the baby boomers—those born between 1946 and 1960. By their sheer numbers, a proportion of this generation challenged the traditional socialization mechanisms of society and significantly questioned traditional assumptions, rationales, explanations, and authority. In a drive for generational self-discovery, drug use, particularly as a means to alter consciousness, became a part of the youth movement of the late 1960s and the 1970s. Most of the baby boomers who used drugs explored the use of marijuana and hallucinogens, but over the same years heroin use was increasing in inner cities across the country; crime, too, was increasing. Despite the declaration of a “war on drugs” by the Nixon administration from 1970 through 1971, national surveys conducted during the 1970s and early 1980s showed annual increases in almost all types of drug use among high school seniors, household residents, and criminal justice populations. The one exception was heroin, the major target of the Nixon drug war. Heroin use levels declined and then remained stable, but cocaine use rose dramatically during the 1970s and early 1980s, as did marijuana use among young people. By 1985, more than 20 percent of U.S. adults had taken drugs illegally, and for persons aged eighteen to thirty-four more than 50 percent had done so.

Perhaps because of the fundamental changes in national drug-using behavior that occurred during this period, the modern movement to legalize drugs began. The basis of the argument was that (1) many of the drugs that were then illegal were not as harmful as government and media propaganda portrayed them to be, (2) marijuana in particular was argued to be relatively less harmful than alcohol and tobacco, and (3) the use of marijuana was a generational choice. In fact, the 1978 National High School Senior Survey showed that in the prior thirty days, a higher proportion of seniors had smoked marijuana than had smoked tobacco. By 1979, the media and American households were holding serious discussion about the legalization of marijuana, moving toward the British System of heroin maintenance, and considering the legalization of cocaine as a nonaddictive stimulant. Social political movements such as NORML were organized to achieve passage of laws decriminalizing marijuana use. With the tacit support of the Carter administration, there were eleven states, including Alaska, that decriminalized the possession of small amounts of marijuana for personal use. Even the director of the National Institute on Drug Abuse in the late 1970s, Robert Dupont, appeared to accept the likelihood that marijuana would be decriminalized. However, in 1977, in reaction to growing marijuana use by young people and a perception that government itself was being tolerant of drug use, groups of parents organized a grassroots campaign to buttress the resistance to drug law liberalization. By 1978, the Parents Movement had become a force to be considered, and their views had ready access to the White House policy office. The apparently about-to-be-successful national movement to legalize many drugs in the 1970s came to an abrupt end with the 1980 election of President Ronald W. Reagan.

The 1980s

Corresponding with the election of President Reagan, there was a general conservative shift in national consciousness. First Lady Nancy Reagan, who made drug use among young people one of her prime topics of concern, was a welcome speaker at annual national meetings of the parents’ groups. The public debate on legalization during the early 1980s was also affected by increasing evidence of the physical and psychological consequences of drug use, declining illegal drug use among high school students, decreasing use among household members, and, maybe, the initiation of maturation among the baby boomers. During the 1980s, U.S. policy was characterized by the increasing intolerance of drug addiction or even recreational drug use. On an official level, this came to be called zero tolerance.

According to the official federal policy of the 1980s, the assumption was that to a large extent drug use was an individual choice that could be affected by raising the cost of drug use to the users. It was believed that if enforcement reduced the availability of drugs, thus raising their prices, and increased the consequences of use by increasing the severity and certainty of punishment, individuals would choose to say no to illegal drug use. During the 1980s, the proportion of federal drug control spending allocated to treatment fell from 33 percent in 1981 to just 17 percent in 1992, with increasing shares going to prevention (up from 8% to 14%) and law enforcement (up from 59% to 69%). The increase in the overall size of the federal budget was even more dramatic. The total federal budget for all demand-side and supply-control activities was just $1.9 billion in 1981. This amount escalated sharply when President Reagan redeclared a war on drugs. By 1989, the total had reached $6.7 billion. The resources escalated still further during the Bush Sr. and Clinton administrations, reaching $12.2 billion in fiscal year 1993 and $18.1 billion in fiscal year 2001. (Direct comparisons with more recent budgets are complicated by definitional changes, but federal drug spending during the George W. Bush administrations has grown by an average of only 2 percent per year in real terms.)

By the end of the 1980s, the national drug-abuse policy of zero tolerance with a heavy focus on enforcement began receiving critical reviews from policymakers, public administrators, clinicians, and academic researchers. These critical reviews were generally based on civil libertarian and public health harm-reduction perspectives. The key points made by national policy critics were:

1. About two-thirds of all felony arrestees in major metropolitan areas were currently using cocaine.
2. A large proportion of all criminal charges were drug charges. This had resulted in a significant expansion of prisons and the proportion of the population incarcerated. All this had occurred at a very high economic cost.
3. The high profits from the drug trade were funding international terrorism and resulting in a rapidly increasing rate of violence in American urban areas.
4. Because of the vast amount of cash generated in the drug trade, there was great potential for corruption of government.
5. In an attempt to reduce illegal drug use, draconian laws focusing on search and property seizures had been passed.
6. Treatment availability for the poor had been reduced, with many cities reporting month-long waiting lists for publicly funded treatment slots.

Calls for Decriminalization

These consequences resulted in a major reinvigoration of the interest in legalizing or decriminalizing drug use. Those who argue for legalization come from a wide variety of professions and ideological positions, but they all essentially believe that U.S. society has reached the point where it can no longer afford to enforce existing law. There simply are not enough police, courts, prosecutors, or jail cells, nor is there the sense of justice that will allow U.S. society to enforce laws that have been broken by more than 20 percent of U.S. citizens.

In summary, the zero-tolerance, just-say-no policy of the 1980s had come to be viewed by critics as resulting in a virtual saturation of the criminal justice and prison system with drug law offenders, the undermining of crucial civil rights, and the decreasing availability of drug treatment for the poor accompanied by increasing violence in high drug-trafficking areas and large-scale public corruption. Many critics came to view drug laws as contrary to the very basis of a libertarian civil government. These critics saw the war on drugs declared in the 1980s and continued to the present as inimical to civil liberty. In addition to the civil libertarian perspective, there are many critics of current drug-prohibition policy who focus on a public-health harm-reduction perspective. From this perspective, current policy is not reducing the public-health harm caused by drug use. The public-health-reduction model emphasizes that drug abuse and addiction are the product of a complex set of psychological, sociological, and economic variables that are very little affected by the threat of prison. This perspective argues that the best way to reduce the personal and public-health harm of drug use would be to increase drug education and prevention, increase drug-treatment availability, and reduce the harm caused by drug abuse by providing clean needles and, perhaps, decriminalizing use—thus significantly reducing the cost of drugs and the associated crime.

Although there are very few detailed legalization proposals, those who advocate decriminalization generally argue that national policy should move toward an approach in which the distribution of drugs such as marijuana, cocaine, and heroin would not be governed by criminal law but by governmental regulations that controlled the manufacture, distribution, and use of these substances so that they would go only to those already addicted or be dispensed under very regulated conditions. Advocates of this policy believe that the movement of drug policy from criminal law to regulatory restrictions would result in the relatively easy availability of drugs and inexpensive access to them for those who are addicted, thus resulting in a significant reduction in corruption and violence as well as an increasing willingness on the part of addicts to enter treatment. This, it is asserted, would relieve the severe overcrowding of the criminal justice system. At the same time, it is argued, because of strict regulation, this policy change would more effectively protect young people as well as public health and safety than the current policy (Nadelmann, 1988; Wisotsky, 1991).

Opposition to Legalization

Critics of the legalization perspective do not question many of the basic judgments of the consequences of the 1980s national policy, but they do severely question the assumptions on which legalization is based. Those who are opposed to drug legalization often draw on the moral utilitarian and public-health perspectives. They make the following arguments:

1. During the 1980s and continuing into the 2000s, drug use, by all measures, significantly decreased among high school and college students as well as in the general population.
2. It is naive to assume that increasing availability, lowering cost, and reducing legal consequences will have no effect on the incidence and prevalence of marijuana, cocaine, and heroin use. From this perspective, it is argued that once these drugs are legalized, even though regulated, they will enter the arena of advocacy through free speech and thus the realm of market creation and expansion through advertising. Alcohol use, which is severely regulated and illegal for those under twenty-one years of age, is initiated in junior high school. In addition, about one-third of high school seniors report being drunk each month. In most states, tobacco cannot be sold to minors, but smoking among junior high school students is common. These facts imply that regulation to make a drug available to one age group actually makes it available to all age groups.
3. The resulting increase in use in society and broadening of the societal base of use will result in detrimental health, behavioral, and economic consequences that will far outweigh any proposed benefit of legalization.
4. There is no broad societal base for legalizing drugs. Surveys among high school seniors clearly show that a large majority oppose the legalization of drugs—even the legalization of marijuana. Traditionally liberal countries such as Switzerland and Sweden have tried relaxing drug laws and were forced to modify their positions by their citizens, who daily had to experience the consequences of wide drug availability. Additionally, in a referendum in November 1991, Alaskans voted to rescind a marijuana legalization law passed in the 1970s and recriminalized marijuana possession. In a democracy, governmental policy cannot ignore the voice of the public. Dr. Joycelyn Elders, the first Surgeon General in the Clinton administration, was criticized for merely suggesting that the issue of legalization should be debated.
5. Although the costs of drug law enforcement and incarceration of offenders may seem high, it is a misconception to assume that those incarcerated are all petty first-time violators of the drug laws. DiIulio (1993) asserts that “in 1991 more than 93 percent of all state prisoners were violent offenders, repeat offenders (one or more prior felony convictions) or violent repeat offenders.” Likewise, most drug-related violators in prison are not just users but played some (perhaps minor) role in drug distribution. For many the official conviction charge is “possession,” but that includes possession with intent to distribute, those who pled down from a trafficking charge, and couriers who possessed very large quantities.

Many of those opposed to legalizing drugs, such as former Secretary of Health, Education and Welfare Joseph A. Califano, Jr., and Mathea Falco, a former Carter administration official, argue that the existing policy should be drastically modified to increase the availability of treatment and educational and economic opportunities in societal groups with high drug-use rates. Specifically, what is called for is an increase in treatment availability in the criminal justice system, either through diversion or probation to treatment or through the provision of therapeutic services in jails and prisons, as well as a major increase in the availability of publicly funded treatment slots in the United States. Policy analysis studies began to conclude that every dollar invested in treatment results in several dollars saved in terms of other social costs, including crime (e.g., Rydell and Everingham, 1995; Gerstein et al., 1994).

Some who oppose drug legalization believe that the current discussion has subtly eroded the public’s will to fight illegal drug use. From this perspective, the only way to retain the reduction in general societal drug use that occurred during the 1980s is to retain a vigorous enforcement of drug laws. The advocates of strict law enforcement believe that weakening the war on drugs would be a kind of backdoor legitimization, a demoralizing discussion of the failure of drug policy. Previous drug policy leaders such as William J. Bennett argue that national drug policy during the 1980s was effective in reducing drug use in the general youth and adult population by making use morally, socially, and legally unacceptable and that the drug policy reform debate of the 1990s made drug use more acceptable, resulting in subsequent increases in use (Bennett & Walters, 1995a, 1995b; Rosenthal, 1995).

The 1990s and Beyond

In the mid-1990s it was very difficult to reconcile the extremes of the drug legalization debate, beyond some shared belief in the need for increasing drug education, prevention, and treatment availability. However, as drug problems in the U.S. stabilized and in some cases began to ebb, the stridency of the debate has eased. Drug law reform groups have focused attention on medical marijuana, not across the board legalization, and even the famously severe federal mandatory minimum cocaine sentences and notorious New York State Rockefeller drug laws have been modified. Local drug enforcement has put greater emphasis on controlling drug-related firearms, violence, and disorder through specific deterrence and focused crackdowns, rather than trying to suppress all forms of drug selling and use (e.g., Braga et al., 2001). In many jurisdictions, law enforcement has pushed back underground, for example, to discrete sales arranged by cell phone, resulting in greatly improved quality of life in surrounding communities. Also promising are partnership efforts such as drug courts, drug offender diversion programs including California’s Proposition 36, and Hawaii’s very successful Opportunities for Probation with Enforcement (HOPE) coerced abstinence program (Belenko, 1999; Hawken, 2006; Kleiman, 1997). These developments might give an optimist hope that, freed to some extent from the distraction of unrealistic “silver bullet” solutions (“create a drug-free America” or “just legalize drugs”), there is potential for a more constructive period of improving drug policy bit by bit through the hard work of pragmatic policy analysis and good governance.