In any year — lean or flush — one question we always want to ask about our
government is: Are there ways that less could be more?
Drug policy is an area where that question is often asked in the following
form: Why do we send people to jail because of their addiction, when
treatment would be much less expensive?
Over the past 15 years, while I was a prosecutor and then a defense
attorney, I spent a lot of time studying this question and if you Google the
words “brownsberger” and “drug”, you’ll find many pages of references to my
My experience and study has made me a cautious reformer on this issue. I do
not favor major policy reversals. But, I do think that we can save some
money and make the world a little better place through some real change.
In this two part series, I want to first lay out my views on some of the
common questions about drug policy and then to explain some specific reforms
that I am recommending.
To the question of treatment vs. jail, the short answer is that, in
Massachusetts, as in most urban states, we almost never send people to
jail for simple drug possession. We do jail persons with addictions if
their addiction drives them to crimes like robbery, but few would argue that
addiction should excuse serious crimes against other people.
But, isn’t the prohibition of drugs what creates the problem of drug-related
crime? Not really. Even if drugs were legal and relatively inexpensive,
there would still be a lot of drug related crime: Many persons with
addictions will always want to use more drugs than they can legally afford.
But what about the people in jail for drug dealing? A great many young men,
mostly black or Hispanic, are in jail for the crime of drug dealing. Why
jail them, but not liquor store owners and cigarette retailers?
While illegal drugs can be found in any neighborhood, the benefit of drug
prohibition is that illegal drugs are much less available in most
neighborhoods than they would otherwise be. If cocaine, heroin and crystal
meth were available in every convenience store, along with the lottery
tickets, condoms and cigarettes, the world might be a very different place.
Many more people would dabble and drug addiction might become disasterously
And if you think how influential the tobacco and alcohol lobbyists are,
imagine a Congress owned by a legal cocaine and heroin producers
I am philosophically committed to individual freedom and I don’t like rules
that restrict private behavior. But addiction is about the loss of freedom
of choice anyway. Legalizing the most dangerous drugs might lead to a great
many people losing control over their lives.
But isn’t there some way to regulate drug sales short of putting dealers in
jail? I’ve spent time examining the alternatives to prohibition, and I
believe it is practically impossible to find a stable and workable medium
between prohibition and full legalization for the most dangerous drugs.
Aren’t we, as a drug consuming nation, indirectly responsible for the
searing lawlessness and endemic political corruption of drug producing
countries like Burma, Afghanistan and Colombia? Yes, and concern for these
countries should give us one more reason to try to help people use drugs
less. But it is worth noting that the rule of law in these countries was
weak in the first place and that is why drug smuggling is flourishing there
— the agricultural conditions are not so unique that the drugs can only
So, it’s a grim picture, but all considered, I do favor continued
I also believe that continued prohibition is a political given. Most
neighborhoods benefit unambiguously from the limited availability of the
worst drugs and therefore most voters strongly favor continued prohibition.
In some poverty neighborhoods, prohibition seems to be an abysmal failure —
drugs are rampantly available on the streets and a stunningly high share of
the youth become involved in the drug trade and end up in prison. But even
in these neighborhoods, the support for prohibition seems fairly strong —
law abiding citizens want the drug trade shut down.
So, I believe that the drug “war” is a sad permanent cold war of
containment. We want to minimize the availability of drugs so that fewer
people initiate use and become addicted. But we know we will never actually
end the tragedy of addiction. It is not a war that we will ever outright
We want to accomplish that containment fairly and humanely, while doing the
least possible collateral damage. I’ll offer some thoughts on how to do
that better in a second piece.