Drug Criminalization Crisis

Chief Judge of the US Court of Appeals for the Seventh Circuit Richard A. Posner, to whom Brooklyn Law School awarded an honorary J.D. in 2000, recently called for the elimination of criminal laws against marijuana and other drugs. The lecture at Elmhurst College in Illinois on The Crisis of Capitalist Democracy, available on YouTube, covered a broad range of topics including education, health care, immigration, climate control and criminal justice. In the Q&A following his prepared remarks, Posner said at 54.06 of the video “Personally, I don’t think we should have a fraction of the drug laws that we have. I think it’s really absurd to be criminalizing possession or use or distribution of marijuana. I can’t see any difference between that and cigarettes. But also I’m skeptical about the other drug laws….The notion of using the criminal law as the primary means of dealing with a problem of addiction, of misuse, of ingesting dangerous drugs — I don’t think that’s sensible at all. That is responsible for a high percentage of our prisoners. And these punishments are often very, very severe…. It’s all very expensive and it’s a waste of a lot of high quality legal minds, and it’s also a waste of people’s lives who could be as least moderately productive with having to spend year after year in prison. That is a serious problem.”

In Drug Legalization, a post on the Becker-Posner Blog, Judge Posner noted that legalizing marijuana and other drugs would save federal, state and local governments $41.3 billion per year citing a Cato Institute report The Budgetary Impact of Ending Drug Prohibition. Judge Posner is one of the most prolific legal authors in the US. The BLS Library has in its collection more than 50 of his books as seen in this list. On the subject of drug legalization, see in SARA, the BLS Library catalog the March 2012 Congressional Research Service report Medical Marijuana: The Supremacy Clause, Federalism, and the Interplay Between State and Federal Laws the summary of which reads:

As part of a larger scheme to regulate drugs and other controlled substances, federal law prohibits the cultivation, distribution, and possession of marijuana. Yet 16 states and the District of Columbia have decriminalized medical marijuana by enacting exceptions to their state drug laws that permit individuals to grow, possess, or use marijuana for medicinal purposes. Although the Supreme Court has established Congress's constitutional authority to enact the existing federal prohibition on marijuana, principles of federalism prevent the federal government from mandating that the states actively support or participate in enforcing the federal law. Even if the federal government is prohibited from mandating that the states adopt laws supportive of federal policy, the constitutional doctrine of preemption generally prevents states from enacting laws that are inconsistent with federal law. Under the Supremacy Clause, state laws that conflict with federal law are generally preempted and therefore void. This report will review the federal government's constitutional authority to enact the federal criminal prohibition on marijuana; highlight certain principles of federalism that prevent the federal government from mandating that states participate in enforcing the federal prohibition; consider unresolved questions relating to the extent to which state authorization and regulation of medical marijuana are preempted by federal law; and assess what obligations, if any, the Department of Justice (DOJ) has to investigate and prosecute violations of the federal prohibition on marijuana.