Liberalism's Brain on Drugs

At some point, everyone ought to throw his or her political theory -- whatever it is -- up against the wall of reality to see if it sticks.

I ran smack into that wall when the state shackled Mark, one of my best friends, and hauled him off to a dank, violent, maximum-security prison for a 17-year stay. His crime: possession of a spoonful of cocaine, some of which they said he intended to distribute. The judge had recommended he be sent to a prison that focuses largely on drug treatment, but it is hopelessly overcrowded. So there Mark sits in Hagerstown, Md., his letters reflecting a mind slowly losing its tether as violence and mayhem swirl around him.

I've always believed that we live in a fundamentally liberal society that can trace its way back to enlightenment thinkers like Jefferson, Madison, Locke, Mill and Rousseau. Sure, the past 24 years of the Reagan, Bush and even Clinton regimes haven't been kind, but one bedrock principle still seemed intact: If not equality and fraternity, we'll always have liberty.

And so, as guards frogmarched my friend out of the courtroom shackled hands to feet, I wondered how confining that man for 17 years jives with my understanding of our nation's values. Is imprisoning hundreds of thousands of people an acceptable policy result of a liberal, pluralistic democratic society? Or, is the drug war proving libertarians correct about the potential for abuse of government power?

The principal disagreement between libertarians and liberals regarding the expansion and protection of liberty goes something like this. Libertarians argue that the state, broadly understood to include both state and federal governments, is the greatest threat to individual freedom. Therefore the best way to guard liberty is to restrict the power of the state to the greatest extent possible, leaving it only to protect two "freedom froms" -- the freedom from force and the freedom from fraud. The rest, they say, will work itself out.

Liberals counterclaim that the libertarian critique ignores the reality of other organized forms of power -- such as corporations, private militias and intractably racist state governments -- that can infringe on an individual's freedom. They argue that freedom can only exist fully against the backdrop of some measure of equality and opportunity. Liberalism therefore calls for the expansion of state power based on the belief that such power should be used to create space for and protect individual rights and freedoms. In other words, liberals expect their elected government to provide freedom from oppressive nongovernmental forces and to help guarantee equal access to real opportunity.

But what if the government itself becomes the oppressor?

Eric Sterling, a Reagan-era-drug-warrior-turned-reformer who now heads up the Criminal Justice Policy Foundation, refers to what he calls the "drug war exception to the Bill of Rights." Unlawful searches and seizures are not permitted -- unless cops are searching for drugs, which are not legal property and therefore not protected. No self-incrimination -- unless it's a drug test. No cruel and unusual punishment -- unless you were caught with cocaine. And so our two greatest bulwarks against tyranny, checks and balances and the Bill of Rights, are out the drug war window.

Today, one of every eight black men between the ages of 25 and 29 -- the cohort Mark falls into -- is behind bars. The U.S. incarceration rate not only ranks number one in the world, but also some eight times higher than Western European nations.

In "An Analytical Assessment of U.S. Drug Policy," Peter Reuter, a conservative critic of the drug war and the director of the University of Maryland's Center on the Economics of Crime and Justice Policy, and David Boyum, a health policy consultant, have come to some radical conclusions.