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Volume 91 · Symposium Issue 4
Foreword
91 OR. L. REV. 993
The United States has by international standards an exceptionally harsh criminal justice system. We have less than five percent of the world’s population but a quarter of its prisoners. Indeed, we have more criminals in our prisons and jails than does any other nation.
Two things primarily account for this questionable distinction: we criminalize more conduct and we impose longer sentences. As the timely and provocative set of essays collected here demonstrate, the collision of those factors is explosive in the area of drug policy [...]
Articles
Drug Control Policy in an Uncertain World
91 OR. L. REV. 997
My recent book Public Policy in an Uncertain World argues broadly that society should face up to the uncertainties that attend policy formation. I observe that the current practice of policy analysis suffers from incredible certitude. That is, researchers use untenable assumptions to make precise predictions of policy outcomes. [...]
Joints or the Joint: Colorado and Washington Square Off Against the United States
91 OR. L. REV. 1009
I then explore some of the specific aspects of Colorado and Washington’s initiatives and ask whether their laws may make it easier for the Obama administration to allow more room for state law to function as the voters intended. In that discussion, I also consider some of the political calculations that may be at play in the Obama administration’s formulation of its policy in dealing with Colorado and Washington’s initiatives. [...]
The Federal Response to State Marijuana Legalization: Room for Compromise?
91 OR. L. REV. 1029
This Article articulates another option available to the federal government, using marijuana policy in the Netherlands as a guide. Congress could amend federal drug laws to permit retail sales of marijuana while continuing to prohibit its commercial manufacture and wholesale distribution. [...]
High Tax States: Options for Gleaning Revenue from Legal Cannabis
91 OR. L. REV. 1041
Potential tax rates and revenues have been a prominent theme in discussions about legalizing marijuana. State agencies have produced fiscal impact analyses—some featuring fairly large projected revenue numbers—to inform voters about proposed laws and ballot initiatives to legalize marijuana. Most discussion has focused on revenue estimation, analysis of likely post-legalization prices compared to current illicit prices, and the questions of evasion through “gray” and “black” markets. This Article seeks to broaden the revenue discussion about marijuana legalization with respect to policy goals, types of taxes, and components of revenue. [...]
Keep Off the Grass: The Economics of Prohibition and U.S. Drug Policy
91 OR. L. REV. 1069
In 1906, the United States instituted its first drug laws. Over time, drug prohibition and criminalization have continued, becoming what is known today as the “War on Drugs.” This Article examines the political economy of the War on Drugs with particular emphasis on the unintended consequences of drug prohibition. [...]
Drug Law, Mass Incarceration, and Public Health
91 OR. L. REV. 1097
Despite widespread recognition of its failure, the War on Drugs continues, leaving a legacy of punishment that worsens many public health and social problems once attributed to drugs themselves. Chief among these is our system of mass punishment itself. [...]
The Foreign Economic Effect of the U.S. War on Drugs
91 OR. L. REV. 1129
Since the beginning of the twentieth century, the United States has waged a “War on Drugs” by attempting to reduce both the supply and the demand of illegal drugs. The attempt to reduce demand is a domestic policy, while the attempt to reduce the supply implicates both domestic and foreign policy. [...]
A New Direction? Yes. Legalization? No. Drawing on Evidence to Determine Where to Go in Drug Policy
91 OR. L. REV. 1153
In essence, honest drug policy analysis forces us to draw on limited evidence and decide what matters more. Since the recent discourse in the United States has shifted considerably toward legalizing drugs, this Article will examine some key premises of support for legalization. Readers can decide for themselves if the data is convincing enough to resist such a policy change or not. My take is that while the current drug control system is not perfect, it is much more desirable than legalization, which needlessly puts our public health and safety at risk. [...]
A New Continuum for Court Supervision
91 OR. L. REV. 1181
The bad news is that five million people are on probation or parole in the United States. The good news is that Hawaii has finally found a way to effectively supervise probationers that substantially reduces victimization and new crimes, helps offenders succeed on probation and avoid going to state prison, and saves taxpayers millions of dollars. [...]
Rethinking Assumptions about Drug Addiction and Treatment
91 OR. L. REV. 1191
The War on Drugs is based in part on a number of assumptions—often implicit and unquestioned—about drugs and their use, abuse, prevention, and treatment. This Article articulates some of these assumptions, offers better alternatives, and thereby implies major changes that should be made to our drug policy. [...]
Defending the Dog
91 OR. L. REV. 1203
Narcotics dogs generate a good deal of controversy, confusion, and ire. The sniff of a dog, directed by a police officer to detect drugs inside a car or home, is not a Fourth Amendment search—a sharp reminder that the Supreme Court’s interpretation of that word has parted ways with common usage. On the other hand, if the dog alerts, indicating it detects drugs, the alert alone is sufficient to establish probable cause and justify a full-blown search. [...]
Heroin Prescription, HIV, and Drug Policy: Emerging Regulatory Frameworks
91 OR. L. REV. 1213
Two decades of research demonstrates the effectiveness of HAT as a secondary treatment option for opioid-dependent individuals who have failed in conventional pharmacotherapies such as MMT. Indeed, scientific studies from a range of countries, including longitudinal studies of up to six years, have demonstrated the utility of HAT in achieving a wide range of positive outcomes among clients. [...]
Demand Reduction or Redirection? Channeling Illicit Drug Demand towards a Regulated Supply to Diminish Violence in Latin America
91 OR. L. REV. 1227
Prohibitionist drug policies have not only failed to achieve their stated objectives of reducing drug consumption and improving public health, but they have also caused or contributed to remarkably high levels of death, disease, crime, corruption, violence, incarceration, and a vast and destructive underground market. This Article focuses on the illicit drug markets generated by prohibition and their attendant harms, especially the widespread violence currently afflicting many drug transit and producer countries like Mexico, the nations of Central America, and Colombia. [...]
First Comes Legalization, Then Comes What? Tips for Washington and Colorado to Help Break the Cycle of Selective Prosecution and Disproportionate Sentencing
91 OR. L. REV. 1253
In response, the Court aptly noted that “[b]y suggesting that race should play a role in establishing a defendant’s criminal intent, the prosecutor . . . tapped a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our Nation.” Policymakers must always be conscious of that vein of prejudice—even in enacting progressive reforms. I consider here how those implementing the marijuana initiatives in Washington and Colorado might do so. [...]
Oregon High Intensity Drug Trafficking Area (HIDTA) Program: Threat Assessment, Counter-drug Strategy, Position, and Conclusion
91 Or. L. Rev. 1265
The question at hand is whether or not the current policy, which includes control and outright prohibition of dangerous drugs as dictated by the Controlled Substances Act and the enforcement of the Act, has been effective. The Oregon HIDTA Program’s position and conclusion is that the approach has been effective in disrupting the supply chain and, to a certain extent, effective in deterring illicit drug use. [...]
The Future of Marijuana in the United States
91 Or. L. Rev. 1302
In November 2012, Washington and Colorado voters approved initiatives legalizing use and possession of small quantities of marijuana. Before that, eighteen states had legalized medical use of marijuana with differing levels of regulation. Since then, two more states have approved medical marijuana. Today, many people hope – for a range of reasons – that more states and the federal government will decriminalize and eventually legalize marijuana. [...]
Essays
The War on Crumbs
91 Or. L. Rev. 1319
So what is to be done? First, we have to be honest about what “the problem” actually is. The hard truth is that the police ignore most of the middle class drug use and dealing that occurs out of private homes or public venues—bars, nightclubs, or concert halls. Poor people bear the brunt of the “War on Drugs” while those with means can buy and sell drugs with impunity. [...]
Our Top Ten Drug Policy Goals
91 Or. L. Rev. 1327
We have been actively “fighting” our nation’s War on Drugs since the time of Richard Nixon. But during all of that time I have never heard anyone in government discuss, much less define, what our actual goals are in this effort. So, with the understanding that we are all on the same side of this issue—namely, we all want to reduce drug abuse and all of the harm and misery that accompanies it—I have made a list of the top ten goals that I think we are trying to accomplish in this area, in order of importance. [...]