THE BLOG
11/22/2008 05:12 am ET | Updated May 25, 2011

Take the Handcuffs Off the Economic Recovery

A month ago, who would have thought that the Bush Administration would order the partial nationalization of the nation's banks to fix credit markets and support the economy? Maybe other innovative, even "radical," ideas are in order. Unless we come up with new ideas to sell cars and durable goods to fire up the economy, collapsing domestic auto sales threaten tens of thousands of jobs.

In addition, the recession will cause shrinking government revenue at every level. Even last spring 18 states were predicting reduced budgets in FY 2009. Unless new revenues are found, we will soon see the furloughs and wholesale firing of teachers, nurses, and emergency first responders; closed schools, libraries and hospitals; crumbling roads unfixed; and broken bridges closed to traffic.

Cliches about the auto industry's problems blame workers' and retirees' health care costs and management for making the wrong kinds of cars. But to sell cars we need to abandon cliches, old myths, and the blame game.

Consider these facts. Last year we had 2.3 million Americans in prison and jail. How many American cars did these men and women buy last year? That's right, none. That 2.3 million is about ten times greater than the 250,000 prisoners in America during the auto industry's glory days of the 1960s and 1970s. There are another 8 million Americans who got a felony conviction for possessing or selling drugs in the last twenty years. With their convictions, these people rarely have jobs. They don't have a legal income and they don't have credit.

The economic effect of more than ten million American adults who can't buy cars, houses, furniture, appliances, or other durable goods is like 9-11, Katrina, and every other hurricane combined. Even with a job, many are without a credit card and are shut out of the marketplace. From Ticketmaster to Amazon.com to the local shore store, American businesses are losing sales. Economically, our criminal justice policies are cutting our throat.

Aside from the economic cost, is imprisonment of all of these 2.3 million Americans good anti-crime policy? Not according to the research. Effective crime fighting uses smart police strategies, adequate mental health care, good schools, recreation for youth, jobs and focused rehabilitation. The criminological consensus is that imprisonment has been responsible for about one-quarter of the crime decline in the past 15 years. Most of those in prison are there for non-violent offenses like drugs or theft, or because they violated probation by committing a "technical" violation like drinking or using drugs. Most of those in prison are there much longer than they need to deter crime, to justly punish them, or to protect society from future crime.

We certainly need to imprison dangerous offenders - to protect us and to punish them. But we need to get a lot smarter about why we imprison and who we imprison. Remarkably, in the last thirty years, the largest increase in imprisonment has been due to prohibition drug policy.

Even though drug enforcement leaders have warned for more than twenty years that "we can't arrest our way out of the drug problem," every year we arrest more people for drug offenses than the year before. Last year we arrested over 1.8 million Americans, more than three times the number arrested for all violent crimes combined. Now about one-quarter of those in prison are serving drug sentences. As the centerpiece of our anti-drug strategy, arrests and imprisonment have failed: high school seniors report that drugs are easier for them to get now than in the 1970s and 1980s.

Scientists and drug treatment specialists - even police chiefs, judges and prosecutors - agree that drug addiction is a disease. But in almost every city it is hard for people to get good treatment for their addictions. Waiting lists - often very long ones - to enter programs are the rule. According to the White House, about 20 million Americans need substance abuse treatment but don't get it. Why put drug addicts in prison for using drugs when what they need, and deserve, is good drug treatment? Why do we tolerate the police arresting drug addicts for using drugs? Isn't the definition of the disease of addiction that you can't stop using drugs? When you think about it, isn't it wrong to prosecute a person because of their disease?

But in fact, most drug users are not addicts, they are adult marijuana smokers. Why do we arrest them? To tell them that marijuana is harmful? To "send a message" to children that they should not use drugs or that drugs are dangerous? Isn't that the job of parents, schools, and public health authorities?

Drowning is the second-leading cause of unintentional injury-related death for children ages 1 to 14 years. The rate of drowning has declined, but we not because we jail swimmers, or swimming pool contractors and operators, to warn children about the hazards of swimming. Of course, in most parts of the country the government hires life guards at beaches and pools to save swimmers in the face of the ever-present danger.

In fact, we don't arrest anyone to warn about most dangerous behaviors. To teach the safer use of dangerous behaviors involving firearms, alcohol, tobacco, automobiles, motor cycles, private airplanes, or ski resorts, we use education, insurance, regulation and taxation to reduce injuries and save lives. With most activities, we recognize that doing dangerous things is not "wrongful" and does not deserve punishment. Why is arresting people a good way to send a message about health and public safety when it comes to drug use?

Almost everyone agrees that our "convict-the-users" anti-drug strategy is a costly failure. According to the government's studies of drug use attitudes and trends, millions of criminal convictions have had little to do with the decline in drug use.

Naturally, a compassionate society has "to do something" about drug abuse, but a century ago we got misled that drug abuse is a crime problem. As we have seen repeatedly in our history, by adopting the prohibition approach we have made it more of a crime problem. Sadly, the idea that the danger in drug use is "bad" and "wrongful," and is therefore fundamentally different from the sometimes lethal dangers of skiing, sky diving, auto racing, hunting or many other activities remains a deeply embedded and very expensive myth. Can we justify why we punish drug users on any terms other than it is against the law? This law is unjustifiable and only survives on the myth that drug use is "bad" as opposed to risky.

It is now time to think about the opportunity cost of this myth. Even in the smallest town or county, drug arrests generate thousands of dollars in police overtime pay. In a big jurisdiction, it costs taxpayers hundreds of thousands or millions of dollars to arrest drug users. About one-third of the time of prosecutors, judges and court personnel is spent handling drug cases. Housing, guarding and feeding 500,000 drug prisoners pays prison employees and contractors. These folks benefit, but for the rest of us, these millions of drug cases mean unemployed workers and lost customers that bleeds our jobs out of the economy.

Police need to focus on violent offenders, child molesters, DUI cases, and the white collar frauds who steal millions. Prison needs to be reserved for the dangerous.

Non-violent drug offenders need to be let out of prison. Those who are addicted need treatment, which is much less expensive than prison. Their drug-related criminal records need to be sealed so they can get jobs. Thieves and burglars who are drug addicts need abstinence-based supervision to prevent re-offending.

Seventy-five years ago, on Dec. 5, 1933, in the depths of the Great Depression, we amended the Constitution to abandon alcohol prohibition to generate jobs and to tax alcohol to fund the government. It's time to end the marijuana prohibition. Non-commercial, home growing of marijuana should be regulated like hunting. Hunters are killed accidentally every year, including minors, but licences are easily obtained, not terribly expensive, and largely self-enforcing. Non-commercial marijuana growing license ought to be sold at garden centers, with prohibitions on commercial sale and distribution to minors. Commercial marijuana growing and selling should be licensed and taxed like alcohol, with its panoply of local regulatory varieties, and evolving cultural controls.

In 2005, federal, state and local taxes collected on tobacco and alcohol totaled $35.1 billion. America's 20 million marijuana smokers paid no taxes on their marijuana. Depending on rates, $5 to $15 billion could be raised from marijuana taxes. America's illegal marijuana sellers are the beneficiaries of both a government subsidy (no taxes) and a government price support mechanism. That's absurd! We need to tax the underground marijuana commerce. As we study state and local budgets that will fire teachers, police and firefighters, reduce care to the ill, the blind, and the handicapped, and shutter hospitals, recreation centers and schools, we can ask if we want to keep throwing away the potential marijuana taxes.

One way we could sell a million American cars is to get drug users out of prison, freed of their crippling criminal records, and back into the economy.

How hard are these choices: Lay off school teachers or stop subsidizing the illegal marijuana business with a billions of dollars in tax breaks? Lay off workers and close factories or let non-violent offenders out of prison and provide treatment to drug addicts?

Eric E. Sterling, president of the non-profit Criminal Justice Policy Foundation in Silver Spring, MD, was counsel to the U.S. House Judiciary Committee, principally responsible for anti-drug legislation, from 1979 to 1989.