Hunting Zombies: The War on Drugs and Prison Growth

Before jumping in, I’d like to thank Dan for inviting me back to post on Prawfs. I’ve always enjoyed my experiences here in the past, and I’m looking forward to it all once again. Now on to the post.

Zombie ideas—those ideas that have been invalidated by facts but remain widely accepted because of their political appeal—are a menace everywhere. My goal in this post and posts to come is to do my best to kill one of the most persistent zombie ideas in criminal justice.

The zombie I’m going after here? The common claim that the explosion in the US prison population was primarily (or majorly) caused by the War on Drugs.

It was not. Given how overwhelming the data is on this issue, this zombie’s persistence is as puzzling as it is frustrating.

In fact, I’ll go even further: not only has the War on Drugs not been the primary engine of prison growth, it also has not even been the primary engine of racial disparities in prison populations. 

Not that you would know this by looking at the academic and popular literature. Everyone from Michelle Alexander—whose book James Forman accurately dismantles, and which I will be criticizing as well—to Adam Gopnik in the pages of the New Yorker and Fareed Zakaria in the pages of Time tends to make this argument. I took aim at this argument recently in a review of Ernest Drucker’s book, The Plague of Prisons, in Michigan’s book review issue; I want to develop the argument more fully here, and for a wider audience.

Let me be perfectly clear: I am not saying the War on Drugs has played no role in prison growth whatsoever. Nor am I saying that it is racially neutral, nor that it is sufficiently unimportant that we can ignore it. But I am saying that the following statements are wrong, in direct contradiction of what I hear and read all the time:

1. The incarceration of low-level drug offenders is the primary (or even a major) engine of prison growth.
2. The incarceration of drug offenders in general is the primary (or even a major) engine of prison growth.
3. The incarceration of drug offenders is responsible for much of the racial disparity we see in prison populations.
4. Drug offenders serve disproportionately long sentences.

My guess is that many, if not most, people believe at least some of these statements. But each one is wrong.I will start by demonstrating why each claim is wrong.  Then I’ll show what theories do have empirical support.

When looking at what does cause prison growth, I will include the War on Drugs: there is at least some nuance to my argument here. But while it is true that the War likely matters, its effects are indirect and thus exceedingly hard to measure. Do drug arrests that do not result in incarcerations themselves nonetheless lead to future incarcerations for more-serious crimes by undermining offenders’ career- and other pro-social opportunities? How many aggravated assaults and murders are due to the War’s effect on illegal drug markets? Do drug convictions that do not result in incarceration nonetheless generate longer prior-history records that increase the risk of incarceration for future non-drug crimes?

These are all important ways in which the War on Drugs can matter, and they can matter both in terms of the number of prisoners and the racial or economic composition of prison populations. But in each of these cases, the magnitude of the War’s impact can be hard to disentangle from other factors, and the causal arrow spins madly like a compass on the island from Lost.

I’ll also raise a broader question: how do you actually kill a zombie idea in general? In many ways, zombie is the wrong term to use: we should think of these ideas as hydras.  Zombies are very hard to kill, but each time you shoot/stab/hit/punch a zombie, it gets a bit weaker—just not fast enough. Ironically, as I will discuss later, each time you attack a bad idea it can perversely grow stronger, like the hydra growing two heads for each one chopped off.

The overemphasis of the War on Drugs is not a minor problem. States are eagerly trying to figure out how to reduce their prison populations. If we don’t know how we ended up with so many people in prison, how can we amend our laws and policies we get the outcomes we want? If we act as if the War on Drugs is the cause of our problems, we aren’t going to solve them.

One last thing I want to make clear before I jump into the substance of stuff. I am not a proponent of the War on Drugs. I favor across-the-board legalization (and taxation) of marijuana, and I found the outcome in Gonzales v Raich (upholding federal enforcement against purely intrastate drug markets) depressing. I’m unsure about the extent to which we should legalize or decriminalize harder drugs, but I certainly believe that we should treat drug addiction as a public health problem, not a criminal one, and that we could learn a lot from countries like Portugal. I think the War on Drugs has been, on net, a waste of time, energy, and resources, and that it has been needlessly destructive for whatever it has accomplished.

In other words, I am not a defender of the War on Drugs, nor even some sort of lesser fellow-traveller. I’m pretty much opposed to it. But that doesn’t change the fact that, whatever the War on Drugs has done, it has not driven up our prison populations by incarcerating drug offenders for long periods of time.