The Robert Downey Jr. Problem

Our Present Drug Policy Is an Immoral Failure

Doug Bandow, a nationally syndicated columnist, is a senior fellow at the Cato Institute and the author and editor of several books, including The Politics of Plunder.

Drugs can exercise a powerful hold over a human being. What other lesson is possible from the arrest of actor Robert Downey Jr., yet again, on drug charges?

His life is a tragedy: a gifted actor, with access to the sort of money and fame of which most people only dream, succumbs to drugs and ends up in jail. His latest arrest came only three months after being released from prison.

One should wonder how drugs can have such a stranglehold over a person. But there’s an even more important question: why was the government threatening to put Downey in prison for another five years?

Downey has made a mess of his life. But he has harmed no one else. Why jail him?

The Drug War is usually debated in practical terms. And it is extremely hard to justify on those terms.

The Drug War has had only indifferent success in reducing drug abuse. Consumption has varied over the last two decades without any relationship to enforcement efforts. More than 80 million people have tried drugs—despite increasingly Draconian penalties. Some 15 million people used drugs last year.

Most are casual users who can and do ultimately quit. Undoubtedly, the threat of prosecution and prison has discouraged casual use, but casual use is of the least consequence. Three-fourths of present drug users, like Downey, are employed. Corporations, law firms, government agencies, and legislative bodies are full of people who once consumed drugs. Even presidents-to-be have smoked marijuana without obvious harm.

Where the drug laws are least effective is in deterring addicts, the 3.6 million people like Downey estimated to be dependent on drugs. “The threat of prison has been eliminated for me,” observed Downey after leaving jail the last time: “I know I can do time now.” If the drug laws won’t stop someone like him, who has so much to lose from doing drugs, then whom will they stop?

Perhaps the greatest failure is that the Drug War does so little to prevent drug use by kids. Demand for marijuana has fallen a bit over the last five years, but the demand for ecstasy has doubled. Half of teens have tried illicit drugs. Nine of ten say it is fairly or very easy to obtain marijuana; nearly half say the same of cocaine.

The peculiarities of prohibition have actually encouraged consumption by children. Persistent lies about the impact of drugs—from “reefer madness” on—have undercut the government’s credibility. The application of reduced criminal penalties to juveniles has encouraged drug gangs to rely on kids. And the legal ban has driven drug sales into the hands of the sort of people who have no compunction about selling to kids: For all the criticism of alcohol and tobacco companies for allegedly marketing to kids, students do not wear beepers and sell Marlboro cigarettes or Seagram’s liquor in most schools.

While the Drug War has had its least impact in halting the most serious problems—abuse by addicts and kids—it has come at great cost. The government has spent $75 billion over the last five years, 25 times the inflation-adjusted spending on Prohibition in the 1920s.

There are now two million people in federal and state prisons. One-fourth of state and 60 percent of federal prisoners are serving drug-related charges, yet three-fourths of them had no prior convictions for violent crimes. An incredible six million are in jail or prison, or on probation or parole. In short, government is jailing a steadily rising number of people for hurting themselves and no one else.

We are also losing our status as a free people. Corruption bedevils police forces, court systems, the customs service, and even the military.

The lack of complaining witnesses—drugs are self-victim crimes, in contrast to rape and murder—means that dealers and users can be prosecuted only through police-state tactics. That means increasing wiretaps, intrusive searches, racial profiling, confiscatory property forfeitures, propaganda-laced television shows, militarized law enforcement, and mindless mandatory minimum sentences. Although the Supreme Court recently tossed out traffic stops for narcotics, lawyers routinely talk about the drug exception to the Fourth Amendment.

Innocent Victims

The problem is not just an abstract potential for an improper search. It means lives: drug raids on the wrong address or based on unreliable informants have filled body bags with innocent victims.

Fighting the war has generated other “collateral” casualties. Although there are people who consume drugs and then commit crimes, alcohol is the most crimogenic substance. Drugs like heroin and marijuana are more likely to make people passive. Most of the violence associated with drugs is drug-law related—marketing disputes that cannot be resolved in normal, peaceful ways.

The problem spreads overseas. Countries like Colombia stagger from pervasive corruption and unrelenting violence caused, ultimately, by America’s Drug War. Absent the U.S. drug ban, the drug trade would offer normal profits and attract normal businesses. Today, in contrast, these societies are truly at war.

The sick also pay a price. Although the federal government allows use of morphine to treat pain, it refuses to do the same for marijuana. Yet the evidence is overwhelming that for some people—suffering from AIDS, cancer, glaucoma, and other conditions—marijuana is currently the best medicine available.

In short, the practical costs of the drug war outweigh any practical benefits. But the case of Robert Downey raises an even more fundamental moral issue.

Why should someone be jailed to prevent him from hurting himself? The moral argument for punishing a thief or murderer is clear. But it is not clear for a drug user, especially when the vast majority of users are as responsible as any drinker.

The few who are “enslaved” by their habits still don’t deserve jail. If Robert Downey can’t do his job, then fire him for cause. If he drives a car while impaired, then punish him for DUI. If he takes a drug that impairs his judgment and he hits someone, then imprison him for assault. But don’t jail him simply for using drugs.

The prolonged presidential election overshadowed an even more important result of last November 7—an obvious desire to find an alternative path to reduce drug abuse. Voters supported access to medical marijuana, endorsed treatment over punishment, restricted property forfeitures, and, in California’s Mendocino County, approved limited marijuana decriminalization.

There is no easy solution to drug abuse, but one thing is clear: our present policy is an immoral failure. Drug abuse is a health, moral, and spiritual problem; it should not be a criminal problem. As former DEA agent Michael Levine puts it, it is time to “call off the hounds.”

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