The agony of Ecstasy: reconsidering the punitive approach to United States drug policy.

AuthorKay, Amanda

INTRODUCTION

People think they can stop the drug traffic by putting people in jail and by having terribly long sentences. But, of course, it doesn't do any good. (1) --Judge Whitman Knapp In the past few years, legislators and judges have become more vocal in their opposition to the "war on drugs" (2) in the United States. (3) However, challenging punitive drug laws is politically difficult; the challenger risks being perceived by the public as someone "weak on crime" who "condones drug use." (4) Tom Campbell, a congressman from California, commented on this phenomenon: "The most common reaction I get from my colleagues is `You're absolutely right, but, boy, I'm not going to take that risk.'" (5) While the public is decreasingly supportive of punitive laws, (6) many still cling to the belief that such laws will reduce drug use because of fear--fear that drug use among children will increase and that less stringent drug laws will lead to moral decline and empower minority groups. (7)

United States drug laws implicate complex matters such as race, (8) gender, (9) class, the national budget, (10) prison overcrowding, (11) civil liberties, (12) and the spread of diseases such as HIV/AIDS and hepatitis. (13) In fact, efforts to reduce drug use may cause more harm than the drugs themselves. (14) For example, increased funding for enforcement of criminal drug laws couple with escalating criminal sentences has led to a rise in drug related convictions and a significant need for prison beds; the war on drugs has created and supported a prison-industrial complex that costs taxpayers over $24 billion per year. (15) Enforcement is often directed at racial minorities and lower class communities; civil liberties are sacrificed in cases of racial profiling, illegal searches, and excessive wiretapping. (16) The direct financial cost of the war on drugs is in the billions, with most of the national budget allocated for enforcement. (17) The additional indirect costs are unknown. Yet needle exchange programs aimed at reducing harm by slowing the spread of HIV/ AIDS (18) go without funding and often without legal authority to operate. (19) These are merely a few examples of the collateral consequences of the drug war.

An objective cost/benefit analysis of the current drug policy is difficult to ascertain. In 1999, Americans spent an estimated $63.2 billion on illicit drugs. (20) Most of that spending was by hard-core addicts, (21) a group that makes up less than one-quarter of the drug users in this country, but consumes over two-thirds of the illegal drugs. (22) Given that drugs are less expensive and more widely available than ever before, (23) and that punitive drug laws have increasingly negative social consequences, (24) finding advantages of the current approach is a challenge. One commentator believes the important question about any drug control program is whether it "contribute[s] materially to the reduction of drug use and drug-related harms." (25) Whether there is a "material" difference depends on whether "the effect is sizeable and, in particular, whether it is sizeable compared to the costs." (26)

Examining the effects of United States drug policy under this rubric may prove frustrating. For example, more drug convictions could mean a reduction in the number of drug dealers and addicts, but could also mean that more people are using and selling drugs. Fewer drug-related emergency room visits could mean that fewer people are getting sick from using drugs. It could also indicate that fewer people are seeking treatment for drug-related illnesses. Less marijuana use among teenagers than in the past could mean that they are using fewer drugs in general, or it could simply mean they are using more of other drugs. Even if the number of drug users were known, that knowledge might not prove an effective measure of the success of drug policy. (27) The effects of the drug war remain open to interpretation, providing fuel for the politics of the debate. Yet, as the drug war enters its thirtieth year, (28) public sentiment is migrating toward frustration and disapproval of the present system; many people claim that the war on drugs has simply failed. (29)

Solutions are proffered by proponents of two traditionally opposed ideologies. On one side of the debate are prohibitionists, those advocating a punitive approach through the criminal justice system, believing that tougher laws will deter new drug dealers and users while removing current ones from society. (30) Their opponents are those advocating harm reduction, (31) who believe that education, prevention, and treatment reduce the harm caused by drug use--harm, that is, to some extent, inevitable. (32) Although legislators have traditionally been on opposing sides of the debate, preserving this dichotomy may no longer be a viable option. A relatively new drug that has been gaining popularity among American teenagers demonstrates the impracticality of maintaining this policy divide. (33)

Ecstasy (34) is a psychoactive drug (35) that has both harm reduction advocates and prohibitionists scrambling for a better solution. Ecstasy topped the Government's list of substances "increasing sharply" in 2001. (36) Ecstasy-related emergency room visits increased fifty-eight percent from 1999 to 2000. (37) Most recently, in July 2001, New York police confiscated one million Ecstasy pills in what is reported to be the single largest ecstasy seizure in history. (38)

More alarming than Ecstasy's recent rise in popularity is that it has been classified in the Controlled Substance Act's most restrictive category for over fifteen years. (39) Both state and federal penalties for possession, manufacture, and distribution of the drug have been increasing over the past ten years. (40) Public perception of Ecstasy's effects varies greatly; some people believe that Ecstasy is a "safe" drug, unlike heroine or cocaine, (41) while others claim that Ecstasy causes brain damage. (42) Driven by fear of health and social consequences, and not believing that other viable solutions exist, lawmakers have attempted to stem Ecstasy use by enacting stricter legal penalties. (43)

The legal quandary is compounded by scientific confusion. Little is actually known about the long-term physical and mental effects of Ecstasy use. (44) Administrative barriers and skepticism about use on human subjects has, until recently, thwarted attempts to conduct private research on humans. (45) Government-sanctioned research on the effects of Ecstasy has been challenged as being neither credible nor thorough. (46) The lack of a neutral, reliable, and comprehensive understanding of Ecstasy's effects has not only affected the decisions of lawmakers, but has contributed to distrust among teenagers of public information campaigns about Ecstasy and other drugs. (47)

This lack of conclusive knowledge of Ecstasy's effects and the increase in use among teenagers has led lawmakers to establish stricter criminal penalties for Ecstasy use. (48) Their hope is that increasing penalties will "send the message" that Ecstasy should be avoided. (49) Harm reduction advocates argue that knowledge of a drug's effects should precede the establishment of criminal sanctions, and that research which could yield this knowledge should not be prevented by these laws. (50) Harm reduction advocates also promote methods of preventing many of Ecstasy's known immediate side effects like dehydration and overheating, and want to educate users about ways to reduce the risks of their Ecstasy use. (51)

Ecstasy provides a clear example of both the ineffectiveness of the punitive approach to drug policy and the need for mainstream implementation of harm reduction methods. No other drug has incited so much commentary from scientific and medical communities, (52) and its prevalence among youth is rising rapidly. By examining the traditionally discordant approaches to drug policy and their specific application to Ecstasy, a new policy can be crafted that encompasses the best elements of each approach.

Part I of this Comment discusses the history and development of harm reduction and the punitive approach: the two main ideologies on which drug policies are based. It then explains Ecstasy's evolution as a popular recreational drug, its scientific and medical effects, and the legislation that has been drafted specifically in response to its growing popularity in the United States. Part II of this Comment contrasts various policy approaches to Ecstasy, exploring the advantages and disadvantages of each. Part III argues that Ecstasy policy should be revamped to reflect a primarily harm reduction approach. The first and most radical aspect of this new policy would involve legalizing Ecstasy with strict government regulation. In the alternative, Ecstasy should be reclassified as a schedule III substance and the Federal Sentencing Guidelines should be amended to repeal recent sentence increases for Ecstasy trafficking. Concurrent with reforming penalty-oriented legislation, Congress should, as its first priority, increase harm reducing measures such as treatment, education, and "safer-use" programs for current users.

  1. PROHIBITION, HARM REDUCTION, AND ECSTASY: A HISTORICAL OVERVIEW

    1. Prohibition

      The United States prohibitionist policy on drug use is rooted in the racial prejudice of the late nineteenth century. (53) Prohibition involves the use of law enforcement and strict penalties to deter and completely eliminate illicit drug use. (54) Although the failings of alcohol prohibition were recognized in the years preceding its repeal, the prohibition, as opposed to regulation, of drug use has remained a cornerstone of United States drug policy. (55)

      1. Early Legislation

        In 1914, Congress enacted the Harrison Narcotics Act, a piece of legislation designed to limit the distribution of cocaine and heroin to health care professionals, as opposed to the free use that had...

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