But if we need to relax drug laws, then what kind of drug laws should we have?
A new paper makes a remarkably good case for treating drug offenses like white collar crimes. The authors — legal scholars Thea Johnson and Mark Osler — argue that dealing drugs should be treated like other business crimes since it’s a profit-based enterprise.
In drug cases, judges sometimes mete out harsh sentences based on the weight of drugs tied to a particular defendant rather than how much money they made. A Florida woman named Stephanie George, for example, got a life sentence in 1997 because she let her former boyfriend keep drugs at her house. She never got rich off his scheme and struggled just to make ends meet.
“When a white-collar criminal — even one as outrageously criminal as Bernie Madoff — receives an effective life sentence, it is unusual, yet the same sentence is wholly unremarkable in non-violent drug cases,” Johnson and Osler write.
Drug crimes should be punished by how much illicit profit offenders gain, the paper argues, not by arbitrary factors like drug weight.
Punishment for drug crimes haven’t always been so harsh. They have largely been around since the 1970s, when President Richard Nixon passed mandatory sentencing laws and increasing the size of federal drug control agencies as part his “war on drugs,” according to the Drug Policy Alliance. That war morphed into what the paper describes as “an all-out war on crime that reshaped the executive branch into a powerful crime-fighting force.”
Drug-dealers became the enemies, and prosecutors became the heroes. The shift in approach wasn’t based on empirical evidence linking drugs and other types of crime. Rather, it came from an emotionally driven frenzy that pushed lawmakers into passing tougher drug crime laws, the paper argues.
Take the Anti-Drug Abuse Act in 1986. It called for felony charges and mandatory minimum sentences for anyone caught with either powder cocaine or crack cocaine, but the threshold for the amount of crack cocaine was at .01% of the amount of powder cocaine. The bill was rushed into passage following the death of Len Bias, a former basketball star at the University of Maryland. Earlier that year, during the NBA draft, Bias died of a cocaine overdose. Many people believed he died of a crack overdose, though.
According to Eric Sterling, the president of the Criminal Justice Policy Foundation, both parties in Congress seized hold of the narrative to pass the Anti-Drug Abuse Act and other harsh anti-drug laws that have by now been shown to disproportionately affect minorities. They didn’t carefully consider evidence about the harm of these drugs, such as whether crack cocaine is actually more dangerous than powder cocaine — the .01% figure is completely arbitrary, Sterling told Salon.
With a more rational understanding of drug crimes, it’s easy to see they’re actually very similar to white collar crimes. The heart of the Controlled Substances Act says it is illegal “to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.” All of those actions are business transactions, and it makes sense to tie punishment to the money involved in the crime.
Treating drug crimes like white collar ones puts drug crimes in proportion to the amount of money made.
“Contrary to the myth of the drug king pin, drug offenders tend to be poor,” the paper’s authors argue. “Most drug dealers are not Avon Barksdale, the infamous drug lord who controlled most of the West Baltimore drug trade on the T.V. show, ‘The Wire.'” Because so many offenders are poor, it doesn’t make sense to keep the harsh sentencing guidelines, particularly when prisons in the US are already overcrowded.