Criminalizing drugs makes about as much sense as criminalizing depression.

Which has a greater cost to society, depression or addiction? The estimated burden on America is similar. The White House reported in 2014:

The economic cost of drug abuse in the US was estimated at $193 billion in 2007, the last available estimate. This value represents both the use of resources to address health and crime consequences as well as the loss of potential productivity from disability, premature death, and withdrawal from the legitimate workforce.

That is pretty similar to the economic cost of depression which was estimated at $210 billion per year in 2014. Plus, depression is what drives many people into drug abuse, so there is considerably overlap. Given that depression causes many of the same problems as illegal drug abuse, and Americans tried to solve drug abuse (a mental illness) by sending drug abusers to jail, why hasn’t anyone proposed sending people to jail for depression? It makes about as much sense.

I’m not interesting in legalizing drugs, but why not treat drug use more like other nonviolent crimes like tax evasion and embezzling?  Whereas drug abuse is as close as you can get to a ‘victimless crime’ that doesn’t directly hurt anyone but the drug user himself, white-collar crimes are never victimless.  They involve stealing from innocent victims and really should be punished more harshly than drug abuse.

We should just fine people for being involved in illegal drugs rather than jailing them. That would prevent a corporate-run drug pushing industry (unlike full legalization) and make it easier to treat people who are abusing drugs. It would be more effective for social workers and public health professionals to address America’s drug problem rather than police officers. Now Ohio has a ballot initiative which gives a chance to move in this direction. German Lopez has an excellent explanation.

First, he explains that imprisoning drug addicts doesn’t have much more effect than fining them.

Research has long indicated that the severity of punishment has very little effect on someone’s willingness to commit a crime or use drugs. For example, a 2014 study from Peter Reuter at the University of Maryland and Harold Pollack at the University of Chicago found there’s no good evidence that tougher punishments or harsher supply elimination efforts do a better job of driving down access to drugs and substance misuse than lighter penalties.

So it doesn’t matter so much if people are punished harshly (through, say, a felony) than whether they’re punished more leniently (through, say, a misdemeanor).

In Ohio, critics of Issue 1 have pointed to another concern: that reducing drug offenses from felonies to misdemeanors will make it harder to get people into addiction treatment. As it stands, drug courts use the threat of criminal punishment — and prison in particular — to get drug offenders to agree to addiction treatment. If that threat is removed, then judges will be less able to push people into treatment. Critics point to California’s example, where drug court participation in some areas has dropped in the aftermath of Proposition 47.

But supporters of Issue 1 argue that the savings produced by the initiative — which will be largely put into addiction treatment — will actually lead to more access to treatment, not less.

…this is a particularly pertinent issue in Ohio, because it’s one of the states hit hardest by the opioid epidemic.

In the international arena, there’s a good basis for what Issue 1 supporters are arguing here: Portugal. In 2001, Portugal decriminalized all drugs and dramatically ramped up treatment… In the ensuing years, Portugal saw drops in drug-related deaths and reported past-year and past-month drug use, although some increases in lifetime prevalence of drug use and an uptick in reported drug use among teens after 2007, according to a 2014 report from the Transform Drug Policy Foundation.

Ohio is not going as far as Portugal. It’s not fully decriminalizing drugs, since drug possession offenses will remain misdemeanors. And it’s not dedicating anywhere as many resources to addiction treatment as Portugal did. But Issue 1 is in some ways a downscaled version of the Portuguese approach, so some lessons can be drawn — and they suggest that the critics of Issue 1 are buying into hyperbole.

As Jessie Balmert put it for the Cincinnati Enquirer, “Some say [Issue 1] will destroy the state. Others claim it will cure Ohio’s drug problem. Neither is true.”

Unfortunately, Issue 1 is only a very small step towards reducing the wildly high US incarceration rate which is tremendously high:

According to the World Prison Brief, the US incarceration rate is 655 per 100,000 people. That’s higher than any other country in the world, including authoritarian nations like Russia (402) and China (118). It’s higher than comparable developed nations like Canada (114), Germany (75), and Japan (41), which have similar levels of crime — or lower, particularly when it comes to murder …compared to America.

Issue 1 mainly deals with drug incarceration which is only a small fraction of total incarceration.  It is a myth that nonviolent drug crimes result in a majority of American prison sentences.  The reality is probably less than 15%.  That is still too many, but it isn’t the main reason why America’s prison population is out of control.  The myth comes from the fact that the majority of inmates in FEDERAL prisons are there for nonviolent drug crimes, but that is a minority of total incarceration as the following graph demonstrates because most prisoners are in state and local prisons.  See the entire article this graph comes from for a lot more information about the state of mass incarceration.

German again:

Over the past few years, there has been a powerful narrative told about mass incarceration, through books like Michelle Alexander’s The New Jim Crow, suggesting that America’s war on drugs has been the primary driver of mass incarceration.

This isn’t right. The latest data from the US Bureau of Justice Statistics shows that in state prisons, where about 87 percent of US inmates are held, nearly 55 percent are in for violent offenses (such as murder, manslaughter, robbery, assault, and rape), while only a little more than 15 percent are in for drug offenses.

These figures are at best a minimum for the number of violent offenders in prison. It’s not rare for violent offenders to plea down their charges to nonviolent crimes; …So at least some of the supposedly nonviolent offenders have likely committed violent crimes.

So if the US is to significantly reduce prison populations, it’s going to have to address non-drug crimes. For example, the criminal justice advocacy group #cut50 aims to reduce the prison population by 50 percent. This is going to be simply impossible if the focus is only on drug crimes, given that only around 15 percent of people in state prisons are in for drug offenses.

And even if the US reduced its prison population by 50 percent, its resulting incarceration rate of around 300 per 100,000 people would still dwarf countries like Canada, Germany, and Japan, none of which have incarceration rates above 120.

Ohio Issue 1 makes some progress in non-drug areas by allowing sentencing reductions up to 25 percent for other offenses.

As Mark Kleiman told Lopez,

We did the experiment. In 1980, we had about 15,000 people behind bars for drug dealing. And now we have about 450,000 people behind bars for drug dealing. And the prices of all major drugs are down dramatically. So if the question is do longer sentences lead to a higher drug price and therefore less drug consumption, the answer is no.

Higher penalties (incarceration) for drugs doesn’t work much better than low-stakes penalties like a combination of fines, probation, and community service because most people don’t know what the exact penalty is anyhow.  Do you know what penalties your state laws impose? Most people just know drugs are illegal and this “decriminalization” proposal keeps them illegal. Secondly, the chance of getting caught with drugs is not as big as you might think.  We don’t know the chances of drug dealers getting caught, but even for our highest-priority crimes, murders, about 1/3 are never resolved.  Drug crimes are much harder to detect than murders because neither the customer nor the dealer wants to be caught and nobody is helping the police find the crimes whereas everyone wants to help the police catch murderers except the murderers.  Thirdly, we are mostly talking about how much our punishments might influence addicts who we don’t normally expect to make the wisest cost-benefit planning in their lives.  Do you really expect them to dramatically change their behavior merely because jail time is worse than a big fine?  The evidence shows that they don’t care much.

So I’m going to vote in favor of Issue 1 this November.  It won’t cause a big change, and probably 99% of Ohioans won’t notice any difference, but it seems like a big step in the right direction for the <1% who are involved with these issues in the criminal justice system.  I have a lot of friends and people I respect who oppose it, but I’m not persuaded by their reasoning so far.

For example, the Cleveland Plain Dealer editorial board opposes the issue, but their explanation of what it does makes it look pretty good to me. Their main argument against it is that although it is a good policy, it is kludgy to implement the policy with a constitutional amendment rather than ordinary legislation.  But that isn’t a good reason to oppose it because we don’t have a choice between those two different ways to implement this policy–the legislature isn’t going to do it.  And states change their constitutions all the time so it really isn’t a big deal.  We shouldn’t think of the constitution as being sacrosanct.  The typical state has completely re-written its constitution from scratch more than three times on average (a total of 235 state constitutional conventions so far).  This is just an amendment and state constitutional amendments are constantly being passed somewhere in America. It isn’t a big deal to amend a state constitution and we can always amend it again if it doesn’t work out perfectly as written.