In 2014, more than a century after The New York Times began warning readers about the insanity-inducing, violence-provoking properties of “a harmless-looking plant” known as “marihuana,” the paper published an editorial endorsing legalization of a drug it had once blamed for causing madness, mayhem, and murder. That reversal happened 18 years after California became the first state to legalize medical use of cannabis, two years after Colorado and Washington became the first states to legalize recreational use, and a year after Gallup reported that most Americans already favored repealing pot prohibition.
The Gray Lady’s cannabis conversion followed decades of hemming and hawing, during which the Times first toyed with the idea of “legalizing or at least decriminalizing marijuana” and then cheered on the Clinton administration as it threatened to punish doctors for recommending marijuana as a medicine. Today’s editorial urging the replacement of the war on drugs with “something more humane or more effective” is similarly belated and confused.
“America Has Lost the War on Drugs,” the headline says. “Here’s What Needs to Happen Next.” What follows is a mixture of sensible suggestions and dangerously misguided thinking.
Since the essence of the war on drugs is the use of force and violence to stop people from consuming psychoactive substances that politicians do not like, you might think that ending the war on drugs would entail desisting from that unjust, harmful, and manifestly ineffective crusade. But if you think that, you clearly are not a New York Times editorial writer.
“Criminal justice still has a role to play in tackling addiction and overdose,” the Times says. Why? Because “the harm done by drugs extends far beyond the people who use them, and addictive substances—including legal ones like alcohol—have always contributed to crime.” The Times thus concedes that the problems posed by illegal drugs are fundamentally similar to the the problems posed by alcohol, which the government addresses without prohibiting the manufacture, sale, and possession of booze. Might that approach be extended to other drugs?
The Times does not consider that option, despite the precedent established by its endorsement of marijuana legalization. Nor does it say exactly what role criminal justice should play in discouraging drug use, although the role it imagines clearly goes beyond punishing drug users who commit crimes against people or property, prohibiting reckless behavior such as driving while intoxicated, and enforcing age restrictions.
That does not necessarily mean the Times is OK with every detail of current criminal laws dealing with drugs. “The federal sentencing disparity between crack and powder cocaine should finally be eliminated,” the Times says. Since there was never a rational basis for that distinction, this recommendation seems unexceptionable. It is so unexceptionable, in fact, that even Joe Biden, who played a leading role in establishing draconian crack penalties, endorsed that reform 16 years ago, long after African-American politicians began objecting to the racially disproportionate impact of the bizarre sentencing scheme his legislation created.
But even if the federal government treated crack the same as cocaine powder, it would still be arresting, prosecuting, and incarcerating people for supplying it. The Times says nothing about that policy, which includes a five-year mandatory minimum sentence for offenses involving 500 grams or more of cocaine and a 10-year mandatory minimum that kicks in at five kilograms. Defendants with one prior drug felony conviction receive a 20-year mandatory minimum, and two prior convictions trigger a life sentence.
Drug defendants who own guns, whether or not they use them to threaten or harm anyone, are committing another felony, punishable by an additional five-year mandatory minimum for a first offense. That penalty rises to 25 years for subsequent offenses.
This is what the war on drugs does: It locks people in cages for years, decades, or life based on conduct that violates no one’s rights. But in an editorial that is ostensibly opposed to the war on drugs, the Times finds no room to even mention this reality.
The Times instead urges “a better balance…between public health and law enforcement.” What does that mean?
“The Biden administration has taken some welcome steps in the right direction,” the Times says. “In 2021, the Office of National Drug Control Policy began spending slightly more money on treatment and prevention than on law enforcement and interdiction, for the first time in a generation.” But the Times wishes that Biden were more like Richard Nixon, a president who described drug abuse as “America’s public enemy number one” and declared “all-out, global war on the drug menace,” warning that “if we cannot destroy the drug menace in America, then it will surely in time destroy us.”
If you think “America has lost the war on drugs,” Nixon may not seem like a promising model. But the Times sees his example as inspiring.
“In the 1970s, when soldiers returning from Vietnam were grappling with heroin addiction, the nation’s first drug czar—appointed by President Richard Nixon — developed a national system of clinics that offered not only methadone but also counseling, 12-step programs and social services,” the editorial notes. “Roughly 70 percent of the nation’s drug control budget was devoted to this initiative; only the remaining 30 percent went to law enforcement.”
The Times is right that Nixon’s drug policy record is more complex than his rhetoric and reputation suggest. Nixon, unlike Biden during his heyday as a drug warrior, advocated compassion for drug users, whom he portrayed as victims of predatory pushers. But he had no sympathy whatsoever for the latter, even if they were small-time dealers who may have had drug problems of their own. While using drugs was forgivable in light of their supposedly irresistible addictiveness, he thought, helping people use drugs was a sin that demanded stern punishment.
The Times nevertheless thinks Nixon struck “a better balance” because just 30 percent of his anti-drug budget went to “law enforcement.” That fiscal analysis is morally obtuse, glossing over the implications of devoting any government resources to incarcerating people for actions that are crimes only because legislators arbitrarily decided to treat them that way.
Instead of grappling with that issue, the Times suggests various modest reforms aimed at ameliorating the impact of drug prohibition. For example, it says “lawmakers should lift the ban on federal funding for syringes used in needle exchange programs.”
Leaving aside conservative and libertarian objections to using taxpayer money for that purpose, this is pretty weak tea. The federal government already provides funding for needle exchange programs, but that money is not supposed to be spent on syringes themselves. Money being fungible, that restriction may be less meaningful than the Times suggests.
More boldly, the Times endorses “supervised consumption programs,” which allow people to use drugs in a safe setting where help is available should they need it. The Times says “federal officials should make it clear that the people operating them will not face prosecution” under a law that was originally aimed at crack houses—another Biden brainchild.
That’s fine as far as it goes. But wouldn’t it be better to repeal that statute, which poses a threat to a wide range of harm reduction efforts, rather than rely on prosecutorial discretion? And what about the laws that threaten people with criminal penalties for possessing the drugs they use in those supervised consumption facilities? Let’s not get carried away.
The Times also wants the government to expand funding for research and drug treatment, make it easier for doctors to provide “medication-assisted treatment” by prescribing buprenorphine, and “address root causes” through increased spending on social welfare programs. But the one root cause the Times conspicuously does not address is the war on drugs itself, which is supposedly the subject of the editorial.
That omission has practical as well as moral implications. “Drug use is soaring,” the Times says. “More Americans are dying of overdoses than at any point in modern history.” According to federal survey data, “drug use” is not soaring. But drug-related deaths have climbed dramatically in recent years, and prohibition plays a key role in that problem.
Prohibition makes drug use more dangerous by creating black markets in which quality and potency are highly variable and unpredictable. Prohibition also drives traffickers toward more-potent products, which are easier to smuggle. The recent rise in opioid-related deaths illustrates both of those phenomena.
When the government cracked down on pain medication, nonmedical users replaced legally produced, reliably dosed pharmaceuticals with black-market drugs of uncertain provenance and composition. That hazard was magnified by the emergence of cheaper and stronger fentanyl as a heroin booster and substitute, which made potency even harder to predict. After the government succeeded in reducing opioid prescriptions, the upward trend in drug-related deaths did not slow or reverse direction; it accelerated. Nowadays fentanyl is turning up not only in heroin and ersatz pain pills but also in drugs such as cocaine and methamphetamine.
Although the Times is concerned about record drug-related deaths, it does not pause to consider how this situation came about or how it could be avoided. To the contrary, the paper’s editorialists endorse continued criminalization of drugs without giving a moment’s thought to the lethal consequences.