The author points to an artifact from the 1st Drug War. This was erected by the Women's Christian Temperance Union (WCTU) in 1913, just 6 years before the passage of the 18th Amendment and the beginning of the disaster that was alcohol prohibition.
On the national political scene, the issue of crime is a perennial favorite among the Republican and Democratic politicians. They can be counted on to make extravagant promises to "solve" the "crime problem" by "swift", "forceful", (choose appropriate dynamic metaphor) legislative action. Enacting legislation is certainly something that they can do and much effort goes into "crime bills" and "terrorism bills" which create new categories of federal crime and expand the federal reach into areas formerly reserved to state and local governments. In the midst of all of this legislative activity, there is literally no national politician who questions any of this. The most basic question that needs to be asked is: where does Congress get the power to pass these laws?. In fact, a compelling case can be made that much of what Congress does in the area of crime legislation violates fundamental principles of federalism that are embodied in the U.S. Constitution and spelled out in the 10th Amendment.
For some, the issue of constitutionality will be beside the point. After all, much of the Constitution is over 200 years old and "out of step" with the problems of modern society. This is certainly a position articulated by President Clinton. Of course, just ignoring the Constitution is not the correct way of going about things, but it could be amended to give Congress any power society deems necessary to fight the "rising tide of crime." Here, too, questions can be asked, the most pertinent being: is there actually a seriously escalating rate of crime in our society? As it turns out, contrary to the statements of politicians, it can be conclusively shown that the crime rate is not rising and the "emergency" that is being used to justify Congressional action doesn't exist.
Even the demonstration that a crime emergency doesn't exist may not be enough for some people. Crime may not be rising but it is still too high, they would say. I don't disagree with that statement. In fact, I offer the only rational legislative strategy that can have a measureable impact in reducing crime in America.
In the sections that follow I will address the questions I have raised and state my solution.
The U.S. Constitution is the document that lays out the basic form of the national government and enumerates the specific powers it may exercise. The powers of Congress -- the kinds of laws it may pass or agencies it may create -- are listed in Article I, Section 8. The powers that the national government exercises have been delegated by the several states -- they retain all other powers. The powers retained by the states include the passage and enforcement of criminal laws, such as laws against theft, assault, and murder. Nowhere in the Constitution has Congress been given the power to legislate in this area.
Some may claim that the "general welfare clause" at the beginning of Section 8 and the "necessary and proper" clause at the end give Congress broad powers to do anything it wants. While seemingly plausible, this argument is ultimately unsupportable. In fact, one of the objections to ratifying the Constitution made by the Anti-federalists was over just this point. The Federalists answered the objection in two ways.
The Federalists' first response to the objection was that the Anti-federalists had misconstrued the language of Section 8. The "general welfare" clause was merely a statement of purpose which the enumeration that followed explained. It was, in fact, essentially the same language used in the Articles of Confederation where it was a similar statement of purpose. This argument was most effectively made by James Madison in Federalist Number 41.
The second response grew out of the Anti-federalists' demand for a Bill of Rights. Although the Federalists initially argued that, given the constitutional framework of enumerated powers, a Bill of Rights was unnecessary, even dangerous (see Alexander Hamilton in Federalist Number 84), it became clear that a compromise would be necessary if the Constitution was to be ratified. One of the amendments which was offered as part of this compromise was the one that eventually became Amendment 10, which reads as follows:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.The 10th was intended to explicitly state that the powers exercised by the national government must be specifically enumerated in the Constitution with all other powers being retained by the states or the people. The administration of criminal justice is not addressed in the Constitution, therefore it is a power of the states.
So where then has Congress gotten the power to set up a national police force (the F.B.I.), and to get involved in the area of criminal justice? The answer is that it has gradually come about through the misconstrual of the commerce clause and the taxing power. The most obvious example of this is drug prohibition and the drug war. In 1919 it took a constitutional amendment, the 18th, for Congress to pass a law to prohibit the drug alcohol. There has never been a similar constitutional amendment to prohibit other drugs. Instead, the taxing power was first used to regulate -- not prohibit -- opiates and cocaine. By a series of carefully targeted prosecutions and results-oriented Supreme Court decisions over the next 20 years, the federal government eventually ended up with the "power" to prohibit drugs. But this power is not constitutional by any stretch of the imagination.
Accretion of governmental power without the benefit of a constitutional grant is very dangerous. It means that the government is ignoring the Constitution and is becoming an end in itself. It means that other constitutional provisions can and will be ignored. We are already seeing this. Protections against unreasonable search and seizure (the 4th Amendment), self-incrimination and double jeopardy (the 5th Amendment), denial of counsel (the 6th Amendment), and unreasonable fines (the 8th Amendment) have all been substantially eroded in recent years in order to prosecute the drug war and stem the "rising tide of crime." Contempt for the Constitution in one area breeds contempt for the Constitution in all areas.
Federal involvement in criminal justice is justified on the grounds that there is an epidemic of crime, that it is out of control and threatening the very fabric of society. Politicians vie with each other to construct the most lurid metaphors for the crime increase and elections turn on which politician has done the best job of describing the other as "soft on crime." All of this posturing about crime is totally at odds with what science tells us about crime in America: violent crime in the U.S. has been dropping for years and an individual's risk of being the victim of a violent crime is less now than it was in the mid-1970s.
It is not as though this information about crime is particularly arcane or otherwise unavailable to the people who make laws. In fact, any college undergraduate taking an introductory course in criminology will find it in standard texts on the subject. For, example, Samuel Walker's very readable text, Sense and Nonsense about Crime and Drugs: A Policy Guide, 3rd edition (1994), talks about "the myth of the American crime wave":
The news media constantly run stories about "soaring" crime rates. This characterization is inaccurate. The idea that violent crime is constantly rising is a myth. In fact, serious crime has been declining for over 15 years. The National Crime Survey's victimization data ... indicate that robbery declined 17.2 percent between 1973 and 1991; rape fell by 11.6 percent; household burglary dropped by 42.1 percent. Violent crime against the elderly fell by 61 percent between 1974 and 1991. This is one of the longest and most significant declines in the crime rate in American history [emphasis in the original]. Much of the public hysteria about crime is misplaced.As Walker notes, news media almost uniformly exaggerate the incidence of crime. (A notable exception is ABC journalist, John Stossel, whose one hour expose', "Are We Scaring Ourselves to Death", dealt with the myth of rising crime.) While reasons could perhaps be offered for the news media's consistent failure to get the story right, it is hard to find any justification for elected representatives who parrot exactly the same line. Politicians in office, and those seeking office, should have at least a modicum of knowledge about the society they seek to govern. If they lack even the fundamental knowledge taught in an introductory college class, one must seriously question their competence to serve in positions of such responsibility.
During the time that the incidence of violent crime has been falling, public fear of being a crime victim has increased. This is not surprising because the only thing that the public ever hears is that crime is getting worse every day. This guarantees that crime will be an important political issue when election time rolls around. It also means that the public will be disposed to give their votes to candidates who make them feel more secure.
Candidates can allay the fears of the electorate and win their votes by promising "tougher" laws, giving "more power" to police (translation: trashing the Bill of Rights), and getting the federal government "more involved" in dealing with the "crime problem." This translates into bigger budgets for federal law enforcement agencies and more power and responsibility for the bureaucrats who administer them. What ultimately matters is not the underlying social reality, but what the public is made to believe the reality is. Fear, thus, is a valuable commodity for politicians and bureaucrats because it is the engine that funds big government programs.
Another example of fear mongering that has benefitted those wishing to get more funding and gain more power is the declaration of a war on drugs during the Reagan administration. In the late 1970s, during the Carter administration, all drug use, both legal and illegal began to decline. This decline began shortly after many states decriminalized marijuana. Several years into the decline, at a time when the Reagan administration was being criticized for Nancy Reagan's extravagances, the "Just say no" campaign, spearheaded by the First Lady, was unveiled. Over the next few years, millions of dollars were poured into advertising campaigns by groups like the Partnership for a Drug-Free America which resurrected outrageous, reefer madness-style campaigns against marijuana and led the public to believe that drug use was out of control. Meanwhile, drug use continued to decline.
Although the decline in drug use started with a relaxation of the drug laws, as the laws became more draconian, and more and more non-violent drug users began to be jailed, a funny thing happened: drug use started to go up. It would be facile, not to mention unscientific, to claim that drug use began to increase because of the drug war. However, it is very clear that if the purpose in reversing the policy of the 1970s -- which was toward decriminalization and medical treatment of drug problems -- was to further decrease drug use, it was a dismal failure from the standpoint of public policy. From the standpoint of enhancing bureaucratic power and winning elections however, the drug war was wildly successful for those who embraced it. Federal drug enforcement budgets increased by ten-fold, and prisons began to fill with non-violent drug users. This mandated the need for more prisons to house the drug offenders which, in turn, required more funding. Today, the Clinton administration, which is branded by the Republicans as "soft on drugs", is spending record levels (over $14 billion) on the drug war.
At this point, one might say that the illegal drugs are so bad that even if the federal government initially mislead the public about drug use in order to wage its war, the current effort is nonetheless justified. By way of response, the following brief test is proffered.
The psychopharmacological (effect of the drug on the brain and behavior) and public health effects of four drugs are going to be described. Please identify which are legal and which are illegal based upon the actual harm they do to society. Drug 1: kills around 600 per 100,000 users per year, is 90% addictive, and is not associated with violent behavior. Drug 2: kills around 75-100 per 100,000 users per year, is 10% to 15% addictive, and is psychopharmacologically associated with violent behavior and a sizeable percentage of violent crime in the U.S. Drug 3: kills at most 25 per 100,000 users per year, is 5% to 30% addictive (depending upon route of administration), and psychopharmacologically is only slightly associated with violent behavior. Drug 4: kills such a small proportion of its users that no numbers are available, is probably less than 5% addictive, and is not associated with violent behavior. [Answers: Drug 1 is tobacco cigarettes, Drug 2 is alcohol, Drug 3 is cocaine (powder and crack), Drug 4 is marijuana.]If prohibition makes sense from the public policy standpoint, it is pretty obvious from the foregoing that the wrong drugs are being prohibited.
History amply demonstrates that, although alcohol really is a dangerous drug, alcohol prohibition did much more harm than good. There is general agreement among scholars who have studied the effects of alcohol prohibition that it was directly responsible for the rise of organized crime in the U.S. (The subsequent activities of organized crime have been used to justify greater and greater federal involvement in law enforcement.) Homicide rates soared during alcohol prohibition as criminal gangs fought over territory. More and more young people became involved in illegal activities because it was advantageous for bootleggers to use young people as "mules" (that is, people who carry or otherwise deliver contraband). This resulted in young people being killed in shoot-outs. It was the corruption of youth and the kids being killed in gang wars that finally turned the public against alcohol prohibition, which ended in 1933. Shortly after the end of alcohol prohibition, homicide rates plummeted -- within a few years they had dropped 40%. If there was a benefit observed with alcohol prohibition it was that fewer people used the drug. This benefit was illusory, however. The amount of alcohol consumed actually increased because the economics of prohibition decreed that booze should be more potent. Thus, adverse health effects associated with alcohol use actually went up during prohibition.
While it is true that opiates, cocaine, marijuana, and hallucinogens are different from alcohol in terms of their psychopharmacology, all of the evidence is that their continued prohibition is having exactly the same effect on society today as alcohol prohibition had 70-odd years ago. For example, economist Milton Friedman, looking at the effect the criminal black market in drugs is having on the homicide rate estimates that it is responsible for at least 10,000 homicides each year. Criminologist Alfred Blumstein, past president of the American Society of Criminology (1991-1992), notes that the criminal black market in crack cocaine is a major component of the increase in homicides committed by youths ages 15-24 that occurred in the last half of the 1980s. The fact that many of the victims were also young underscores the tragedy of drug prohibition.
Today's drug prohibition, like alcohol prohibition before it, is a major driver of violent crime and homicide. Because black market activities are concentrated in big cities and because young African-American males have the most to gain economically from the illicit drug trade, they are most often the casualties in the war: the leading cause of death among African-American males ages 15-24 is homicide. It is easy to see that drug prohibition is racist in its operation.
In the foregoing sections, I have shown that federal involvement in the criminal justice area has no constitutional nor public policy basis. In fact, the federal government bears primary responsibility for the extent to which violent crime is a problem in the U.S., due to its continuing the unconstitutional policy of drug prohibition. If we were to end the drug war and re-legalize the currently illegal drugs, there is every reason to believe that we would very quickly see a major drop in the rate of violent crime and homicide. This is the only federal government approach to crime that is both constitutional and that will really work.Return to top