Non sequitur: Portuguese decriminalization and the drug wars

Decriminalization isn’t legalization. The costs and the benefits of prohibition relate overwhelmingly to enforcement against dealers, not users. Therefore, results of a decrim experiment don’t tell us much about the results of legalization.

What’s wrong with this logic?

1. Drug prohibition and drug enforcement put a lot of people behind bars and cause lots of other problems.

2. Legalization would avoid those problems, but might cause a big increase in drug abuse.

3. Portugal decriminalized drug possession.

4. Portugal experienced at most a minor increase in drug use.

5. Therefore, the Portuguese experience is evidence that drug legalization would be, on balance, a good idea.

[Answer at the jump.]

As Colombo would have said, there’s just one little thing: decriminalization of possession isn’t the same as legalization, and there’s no reason to think that the effects of one give any strong indication about the effects of the other. (Note that what’s called “decriminalization” when applied to cannabis – a policy of punishing dealers but letting users alone – was called “Prohibition” when applied to alcohol: the 18th Amendment and the Volstead Act banned production, transportation, and sale, but not possession or use.)

Simple drug use rarely leads to incarceration. There’s not much evidence that the threat of arrest does much to discourage potential users. “Decrim” laws are generally passed in places where there already wasn’t much anti-user enforcement. According to the Cato analysis by Glenn Greenwald purporting to show that Portugal’s policy change was a success, Portuguese police made between 1500 and 2500 drug-possession arrests per year in the period before decriminalization. That’s out of a population of 10 million. The reported rate of illicit drug use is something over 3%, suggesting that the annual risk of arrest for Portuguese illicit-drug users was something under 1%. Neither the Greenwald report, nor the study by Hughes and Stevens published in the British Journal of Criminology gives any figures on criminal penalties for users, but Greenwald reports that the annual number of administrative proceedings against users after the new law has been more than twice as great as the number of possession arrests before the law. Has the overall deterrent against drug use gone up, or down? It’s hard to say.

Overwhelmingly, drug enforcement is directed at dealers, not users. Decrim doesn’t change anti-dealer enforcement at all. It therefore doesn’t make drugs cheaper or easier to get. So it doesn’t provide much of a test of the effect of legalization on consumption. By the same token, it doesn’t reduce the arrest and incarceration of dealers, crime incident to the markets, or crime by users to get money for drugs. (Insofar as consumption goes up, all those things tend to get worse, not better.)

So what we learn from Portugal is that a relatively poor, small, homogeneous, culturally conservative country with a small illicit-drug problem will still have a small illicit-drug problem after it stops threatening users with criminal penalties and starts threatening them with administrative proceedings instead. Yawn.

Police in some U.S. cities – notably New York – use drug-possession arrests – especially cannabis-possession arrests – as a means of harassing people they’re suspicious of, or mad at, for other reasons. Getting rid of that tactic would be a fine idea. So I’m for decriminalization, not just of cannabis, but of other drugs as well. And I’m for legalization of cannabis, on a non-commercial basis. (I’d still enforce a rule against using drugs it’s illegal to sell for people on probation, parole, or bail.)

Whether to legalize other drugs depends on (1) how much problem consumption would increase and (2) how you weigh the costs of drug abuse against the costs of crime and enforcement. The Portuguese experience gives us roughly zero information on those two points.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

30 thoughts on “Non sequitur: Portuguese decriminalization and the drug wars”

  1. It's interesting that you have nothing to say about the abyss into which we have thrown Mexico and Colombia, nor the Caribbean island transshipment points, with our policy, and which would I think be diminished only by legalization, not by decriminalization.

    I suspect (based on no swell data, only on my time as a student at Berkeley High School, many-many years ago) that legalization would make it somewhat more difficult for high school kids to get drugs – the people who had valuable liquor licenses would not sell to us, the people who were selling drugs which were illegal anyway had nothing to lose by selling to us.

  2. Mark: Interesting aspect of Prohibition is that it allowed home production, i.e., making your own wine or beer.

    Dave: Your argument is a common one — problem is that tennagers are far more likely to consume alcohol than marijuana. 16 and 17 year olds don't need merchants to get alcohol, they need older brothers and sisters and by and large they have them.

  3. So well-known lefty blogger Glenn Greenwald publishes for Cato. In this context, forms of liberalism and libertarianism coincide. It's quite refreshing to see ideas dominating tribalism.

  4. It's a cinch that Cato used Greenwald because he could be counted on to produce a Cato-compliant result.

  5. 12,000 people killed in the drug wars in Mexico this year. Harm from legalization would have to be awfully large to beat that.

    Keith – when my kid was in kindergarten, I asked his teacher. Of the 23 kids in his class, ten were onlies, ten were from families of two children, my kid was one of only three from a family of three or more. So, no, most do not have older siblings. As well, you are asking that a seventeen year old have a sibling four years older, and that the older sibling is still in town, not away working, or in the service, or in college.

  6. @ Dave

    Or that the kid have parents with an enlightened view of alcohol consumption. My parents never engaged in prohibition — they told us if we wanted to drink, we could (and should) drink at home. If we were away from home and were impaired, we had a ride home by making a phone call. No questions asked. On the other hand, there were serious penalties for driving impaired or getting into a car with an impaired driver. Grounding (before we had D/L's, and afterwards grounding with confiscation of the D/L). For a teen, grounding is … awful. And in our household, grounding lost you the private entertainment facilities in the bedroom. Since I shared my room with my younger brother, we each rode herd on the other: if he violated the rules, my stereo disappeared too. Although, given the enormous divergence in our tastes in music at the time, my folks might have sentenced us to endure the other's music with equal effect.

    That demystified alcohol for us. When I was at a party, it wasn't a great big thing to be able to have a beer or a drink. So I tended not to drink much at all. If I wanted a beer with dinner, I could have one. If there was wine available, I could have some. I compared notes a few years ago with my brothers and sisters, and they felt the same way. We all used the policy in our own families, and none of our kids has had a problem. This despite the almost infinitely stricter enforcement of DUI laws.

  7. While it's true that decrim != legalization, and also (as you imply without saying so outright) Portugal != United States, there are some big problems with this post.

    Specifically, "Overwhelmingly, drug enforcement is directed at dealers, not users." Well, no. Overwhelmingly, arrests are for possession, not distribution. Most prison sentences are for distribution, and while that may account for the majority of the direct economic costs of drug prohibition it says nothing about the cost of making criminals out of users, who are arrested at a rate of something like 1,000 for every conviction of a dealer. I realize that you know better than to argue that being arrested is no big deal, but that's basically what you're implying here.

    Also, what KH said: by all means, let's have decrim like alcohol Prohibition, with home production for personal use. I'm not sure what that would mean for meth, say, but if somebody wants to grow poppies and extract the alkaloids from them, why should anybody care?

  8. "Simple drug use rarely leads to incarceration….Overwhelmingly, drug enforcement is directed at dealers, not users."

    I would like to know the basis for these assertions. They certainly don't match my experience (several years as a public defender in a top-50 [by population] U.S. city). In my experience the majority of drug charges are for simple possession, and people usually serve at least a few days or weeks in jail, and repeat offenders (e.g. drug-using probationers who continue using) can easily get 1-3 years once they reach a certain level of perceived incorrigibility (which is usually persistent addiction).

    I'm not saying there is no basis for saying these assertions – just that none is offered in this post.

  9. Overwhelmingly, arrests are for possession, not distribution. Most prison sentences are for distribution

    I'm not even sure this is correct.

    Most prison sentences, I think, are for being a distributor; that's not the same as actual distributing, because possessing a sufficient amount counts as intent to distribute.

    In VA, the statutory line between "possession of marijuana" (a misdemeanor) and "possession with intent to distribute" (a felony) is 1/2 ounce.

  10. "Keith – when my kid was in kindergarten, I asked his teacher. Of the 23 kids in his class, ten were onlies, ten were from families of two children, my kid was one of only three from a family of three or more. So, no, most do not have older siblings."

    Obviously, one kindergarten class is not representative of the population as a whole.

    But teenagers don't need older siblings to get alcohol – they just need a friend with a fake ID, or a grocery store owner who doesn't ask questions.

    "And I’m for legalization of cannabis, on a non-commercial basis. (I’d still enforce a rule against using drugs it’s illegal to sell for people on probation, parole, or bail.)"

    The non-commercial basis would never work. Most users could not grow any of, or at least anywhere near enough of, their own pot. So you would still have a large black market. Are people in Manhattan and other urban areas, or high school kids living with their parents, or college kids really going to be able to grow their own pot? Pot is not more harmful than alcohol and should be treated the same way – with regulation rather than criminalization. Just focus on the harms – marijuana while driving, being stoned at work, or sales to younger kids. And treat harder drugs as a health problem and send cocaine or heroin users to treatment instead of jail.

    "Overwhelmingly, drug enforcement is directed at dealers, not users. Decrim doesn’t change anti-dealer enforcement at all. It therefore doesn’t make drugs cheaper or easier to get. So it doesn’t provide much of a test of the effect of legalization on consumption. By the same token, it doesn’t reduce the arrest and incarceration of dealers, crime incident to the markets, or crime by users to get money for drugs. (Insofar as consumption goes up, all those things tend to get worse, not better.)"

    If you want to reduce those things, then decriminalize sales, not just decriminalizing drug use or possession of small amounts. And take the massive police and judicial system resources that are being wasted on the drug war and refocus them on violent crime instead.

  11. It seems to me the best way to get at Mark Kleiman's entirely laudatory intention of decriminalizing effectively while keeping commercialization out would be to do with drugs what some states do with liguor. Have state "drug stores" selling the drugs at a very cheap rate, which eliminates the point of getting people addicted to hard drugs in order to make money off them – and eliminates any incentive to grow marijuana on a large scale basis as well. That would be a big blow to the Mexican cartels and make hiking in the woods safer, The stores could easily be self-supporting.

    Users get quality drugs, know where to go for help if and when they want it, and the profit is eliminated from it as well. Seems a win-win approach to me.

  12. I just read the entire Greenwald whitepaper and then searched it for "legal*". Could you please tell me where it argues for legalization of drugs?

    It suggests following the Portuguese model – ie. decriminalization.

    Your whole post is attacking a strawman.

  13. Gus: Key Question is whether that "state store" model is sustainable politically. That is what used to exist for alcohol and has been wiped out in all but a few states by political opposition (and the last holdouts, like Virginia and Pennsylvania, are both considering selling theirs to for-profit concerns for the $$$$). In the long term, to accept legalization is to accept corporate control (some would say it's worth it, although I do not). Not necessarily right away…it might take a generation as it largely did for alcohol, but given American culture and political economy and history, there is no doubt it will come.

  14. Keith-

    As a former libertarian who gradually was able to reason through its blindnesses while (I think) retaining its valid insights, you describe a real problem. As a culture we tend to think in dichotomies – outlaw or legalize, etc. Libertarians are simply an extreme manifestation of this problem.

    Maybe if they could bring in some money to the state – as in New Hampshire I imagine – that could be a selling point. They could accomplish this and still be so cheap as to take the profit out of dealing. A selling point would be that rather than handling drug abuse problems as a drain on state coffers, they would be a gain. If they were successful – and I do not see how they could not be if tried – they would provide a practical example of public policy leading to superior results than either privatization and legalization or the current madness.

    Fighting corporate control will be necessary if we are to remain even as free as we are today, regardless of how drugs are handled. This proposal art least saves school kids and others from dealers and a major cause of gang violence for as long as it lasts.

  15. Two things – first, does Greenwald say Portugal's experience proves something about other countries? And does he really confuse legalization with decriminalization? I didn't remember his report doing either of those things, and in fact goes out of its way not to do those things, and a quick scan suggests (without proving) that I am right. For example, Glenn ends the piece with this: "Since the available data demonstrate that they are right, the Portuguese model ought to be carefully considered by policymakers around the world." (page 31) That hardly sounds like what you present, and since you don't cite something specific he says, it's unclear why we should read his argument in an entirely different way than how he presents it himself.

    Second, and much more importantly, please explain what you mean by this: "homogeneous, culturally conservative" and why this: "Portugal is that a relatively poor, small, homogeneous, culturally conservative country" should matter. I've seen you make this point repeatedly as if it is self-evident, and it's not. If you've explained it before, a link would be helpful.

  16. Prohibition banned the sale and use of alcohol. That's a simple fact. Read the amendment. Read the various laws. Read contemporary accounts. You could be busted for possession. No, you could not brew your own, at least not legally. The home brew rules were part of the repeal which granted license to brew certain untaxed quantities of wine and spirits, though home beer production wasn't legalized until the late 80s. (I don't think there were many prosecutions, but I did have a co-worker active in getting home brewed beer legalized.)

    What happened was that organized crime grew fat on illegal sales. Gang wars grew quite violent. All those movies with guys shooting tommy guns while riding on running boards were based on the ongoing booze wars. They were more sordid up close and personal. Police departments were corrupted by all the money the gangsters had to throw around courtesy of their lucrative business. Only a special federal squad was considered The Untouchables.

    By the mid-20s, some states had had enough of Prohibition. in 1926 New York State officially stated that they would only go after sellers and producers, not users or those with small quantities in their possession. Mind you, they might still use possession as an excuse to hold you while trying to get you on a more serious charge. Alcohol was not legalized, though there was de facto decriminalization. This led to the golden age of the speakeasy where, as the song put it, the underworld met with the elite.

    Portugal traded a minor increase in drug use for a decrease in many of the other problems that drug prohibition causes. That sounds fairly logical to me. It sounds like they have a few more steps to take, but legalizing drug use and possession sounds like a step in the right direction.

  17. Maybe Colombo, whoever he was, would have said, "just one little thing." But Columbo used to say, "just one more thing."

  18. @Dennis,

    If you're concerned about the shortage of morphine worldwide for pain relief, I give you… Afghanistan. The Senlis Council (now International Council on Security and Development) has long advocated buying the crop there and using it to deal with pain medication shortages, thereby putting the farmers on our side rather than that of the Taliban.

  19. Keith Humphreys and Gus diZerega —

    You're right … but you've got your logic backwards.

    State liquor-store monopolies were formed after Prohibition as a sop to "drys" convinced that private retailers would somehow create alcoholics.

    Nobody believes that any more; so there's no longer any political support for state stores. That's why they went away.

    If we legalized marijuana, then there would likely be cries for a state retail monopoly. And eventually, those state marijuana stores would likely go away, as people out-grew their shuddering fears of marijuana.

    Do you somehow believe that the current "corporate control" over alcohol retailing [Kroger, 7-11, etc.] causes some harm to society? Me neither. Why would marijuana be any different?

  20. In my opinion marijuana is not really the issue. I don't worry about corporate control over marijuana because it's so easy to grow cheap stuff or find someone who does, if it were decriminalized. Alaska grows it and it grows in warm climates, as well as indoors. It's not like tobacco in requiring a lot of curing. Anyone copuld grow some next to their basil patch.

    My concern is more with other drugs. Some are physically addictive and harder to home grow, and corporations, as institutionalized sociopaths, would do their best to spread it. Think heroin and maybe cocaine ( for some people). Think of their advertising to young people. Bernays showed how tobacco could be marketed independently of whatever pleasures tobacco brought. We don't need more sociopaths getting rich that way.

  21. Here is Title 1 of the Volstead Act folks, which bans the sale and manufacture of alcohol, not its use. And below it Section S3 which explicitly allows personal consumption of alcohol.

    Volstead Act- 1920

    TITLE I.


    The term "War Prohibition Act" used in this Act shall mean the provisions of any Act or Acts prohibiting the sale and manufacture of intoxicating liquors until the conclusion of the present war and thereafter until the termination of demobilization, the date of which shall be determined and proclaimed by the President of the United States.

    Section S3:

    But it shall not be unlawful to possess liquors in one's private dwelling while the same is occupied and used by him as his dwelling only and such liquor need not be reported, provided such liquors are for use only for the personal consumption of the owner thereof and his family residing in such dwelling and of his bona fide guests when entertained by him therein

  22. This is a good overview of a bad argument, but Mark should rephrase the intro. It implies that Greenwald's report or he himself made this argument, but neither have.

    Of course some in the "legalizer" camp do use this argument (there are some noisy dim bulbs in every movement), but I generally hear more prominent reform leaders handling this evidence and the limits of what it tells us carefully.

  23. @ Pete

    Yes, I am concerned about morphine availability for pain relief. Analgesia is something that can be done, done cheaply and ought to be done.

    Buying up the entire Afghan poppy crop (and all the stockpiled opium base we can lay hands on) is a good idea. It will make a dent in the worldwide shortfall, but (if the numbers I've seen are anything like right) won't close the gap. Afghani production amounts to about 8,000 metric tonnes of opium base annually. Wimberley puts the annual demand at 20,000 metric tonnes annually. Also, Afghan production of opium is at the expense of their more traditional subsistence farming. Current production is far above historic levels. Basically, the Taliban wanted a cash crop…

    So yeah, I think we should buy up the entire Afghan opium crop, if we can. But it won't fully address the problem I have with State-run recreational drug stores supplying morphine to junkies while people are in pain elsewhere.

  24. A quick thought on the morphine shortage.

    Since both are made from the opium poppy, is there currently a shortage of heroin? I think not for those who want it or deal it.

    I think previous comments have adequately covered the issue of whether the shortage is a serious problem that the state store proposal would make worse.

  25. Gus, if the laws were changed, we would grow all the opium the market wanted in the Mississippi Delta. Shortages is purely an artifact of the current laws.

  26. When I was a kid, my parents grew poppy plants. Of course, they though they were just flowers.

  27. Agreed Dave. The laws as currently existing are inhuman and insane and the people who support them . . . well I won't use such language here. My point was that there is no shortage of poppies even now. But there is more money to be made today from turning them into heroin than to morphine.

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