Down Ballot Drugs

While some fondled Play-Doh in anticipation of the long night, three states held referendums that passed without national controversy. They legalized drugs.

Oregon became the first state to decriminalize small amounts of cocaine, heroin, methamphetamine and other drugs. And in New Jersey and Arizona voters decisively passed laws legalizing recreational marijuana. Cannabis is now legal across a large bloc of states in the West — from Washington down to the Mexican border — and well beyond.

And there may yet be more.

Cannabis was also on the ballot in Montana, Mississippi and South Dakota. If all of the marijuana measures pass, marijuana will be legal for medical use in three dozen states and recreational use will be allowed in 15.

What makes the fact that these referendums not only pass, but pass without dire cries of catastrophe, is that we’re coming off the “high” of a 50 year war on drugs. It gave us mass incarceration. It destroyed lives and families. It devastated communities in ways outsiders can’t understand. By that, I mean drugs as well as the war.

I know a lot of drug dealers. I know people who sold weed and crack, powdered coke and heroin. And I know the people who bought it and used it, who were addicted to it and were owned by their dealers. I know why people got into dealing drugs, from those who were just businessmen trying to make money to those who had delusions of being Tony Montana. I knew the pathetic addicts, and watched their bodies waste away until one day they disappeared.

Having spent decades decrying the Draconian, and ever-upward-ratcheting, punishments for drug possession and sale, this shift is shocking, to say the least. From the Rockefeller Drug Laws to the federal Sentencing Guidelines, there was one true belief as to the “plague” of drugs, that if the first couple decades of prison weren’t enough to win the war, one more decade of prison would certainly do the trick. It never did. It was a spectacular failure.

The legislative and judicial grasp of the war on drugs was far more ideological than rational. It led the Supreme Court to authorize dog hits as probable cause, even though everyone knew it was no better than flipping a coin. It gave us the automobile and good faith exceptions to the Warrant Requirement. It gave us pretext stops. It gave us federal in rem asset forfeiture. In another world, a rational world, these would never have happened, but the War on Drugs was never guided by reason, but ideology and emotion. It was evil. It was an inherent evil.

And now, it’s not.

So guys like me, people whose careers were spent defending those accused of drugs, must be applauding this seismic shift in the legal paradigm that would finally vindicate my clients, my friends (yes, friends) as merely business people trying to achieve some success in a nation where their options were highly limited rather than nefarious criminals bent on destruction. And, indeed, the decriminalization piece of this puzzle, to the limited extent it’s happening, is a good thing, although most of these propositions engage in the odd voodoo of taking the street-corner weed business and turning it over to agro-corps. My guys are still left out in the cold, if at least not in prison.

And while possession of small amounts of drugs may no longer be criminalized, where do you think that coke or meth comes from? Hint, it’s not Walmart. So people can buy it, use it, but nobody can sell it without facing life plus cancer. It’s reminiscent of the push to legalize sex work, but still holding the customers in custody or disgust. The nature of a transaction is that it takes two, and as long as one remains evil, the problem hasn’t been fixed.

But unlike advocates for legalization, I am deeply ambivalent about it. It’s not that smoking a little weed is the end of the world. After all, I enjoy a Bowmore 18 on occasion, and some say liquor is quicker. But are there recreational junkies? Have you been up close and personal with a meth addict? Have you ever seen what someone will do to get the money to pay for a fix?

The simplistic reaction is that addiction is a health problem, not a legal problem, and so all these concerns can be addressed by making drug treatment readily available. This ignores a few salient problems, not the least of which is that not all addicts want to deal with their addiction. Many just want more drugs, and if someone doesn’t want treatment, they’ll neither seek it nor be helped by it. Most drug treatment facilities are shams and don’t help anyway, formed to get that sweet drug treatment money government offers with the never-ending parade of defendants forced into treatment until they can return to the streets and get back to business.

And then there’s the harder problem, that the person in the car next to you is high as a kite. Or the guy running the machine at your job. Or the person caring for your child. They can be drunk, and just as dangerous, but we all recognize that’s bad, and yet we’re adding more opportunity to the thing we agree is bad.

Will making drugs legal change all this? It will certainly cure many problems caused by the misguided War on Drugs, though it may take decades for the courts to let go of their ideology and catch up with the public recognition that neither drug users nor dealers are the worst scum of society. On the whole, it’s better than where we were by far. Yet, problems persist and are being ignored or covered over in the zeal to end the War on Drugs. If we don’t face these problems, the pendulum will swing again and we will be back to prisons filled with drug defendants, and an adoring nation for locking them up forever.