In recent years, the Department of Justice stopped pursuing mandatory minimum sentences for nonviolent drug offenders and this year the U.S. Sentencing Commission voted to reduce sentences for most federal drug offenders retroactively, potentially allowing 46,000 inmates to obtain slightly shorter sentences by the end of this year. With over 6 million Americans under supervision in state and federal prisons and jails, this is a positive step, but it certainly is not going to be the end of U.S. mass incarceration. And yet, even this small step forward has received opposition. The National Association of Assistant U.S. Attorneys opposed this change, calling it a “grave danger to public safety.” And current pending legislation like the Smarter Sentencing Act, which aims to reduce draconian drug sentences by half, face serious opposition. In recent testimony before Congress, the DEA asserted that drug trafficking poses serious threats due to the violence that accompanies it, and other testimony claimed that simply releasing 1% of federal prisoners would lead to over 32,000 more murders, rapes, and other violent crimes. The problem with these arguments is that they are simply wrong. The evidence does not support that drug defendants are violent people.
The connection between drugs and violence starts from the Supreme Court asserting there is a direct nexus between drugs and violence. For example, in Harmelin v. Michigan, 501 U.S. 957, 1002 (1991), the court asserted there are at least three ways in which drugs affect crime: (1) A drug user can commit a crime because of drug-induced changes in physiological functions, cognitive ability, and mood; (2) A drug user may commit crime in order to get money to buy drugs; and (3) A violent crime can occur arising out of the violent nature of the drug business or culture. Statutes also assert that drugs and crime are linked. Many Federal statutes define a drug crime as a crime of violence. Due to the assumption that drug crime is violent crime, the federal sentencing guidelines do not make distinctions between violent crimes and non-violent crimes, so a drug defendant may have a higher sentence than a nonviolent drug dealer. And statutes assume that the more drugs a person possesses, the more violent an individual is. Finally, pretrial detention laws presume dangerousness and require detention when a person is caught with a certain amount of drugs, when they have never committed a violent act.
Courts seem to use the drug-violence connection as a one-way ratchet against defendants. For example, courts use the presence of drugs to reduce the right against unreasonable search and seizure and the right to privacy. When courts seek to justify the reasonableness for an investigatory search in a case involving drugs, they allow police to assume that firearms or weapons are present due to the allegedly strong connection between drugs and violence. In some circumstances where there was an otherwise illegal search and seizure, courts have found the search valid due to the “strong” connection between drugs and violence. Similarly, in the context of no-knock warrants, courts assume that the safety of officers is threatened when drugs are involved. In United States v. Singer, the Court held that when an officer has a reasonable belief that a firearm is in the house when conducting a search warrant for drugs, a no-knock warrant is allowed. However, when a defendant under the influence of drugs tries to claim that the drug made him act violently, courts often do not allow it. Likewise, in cases where the defendant wishes to claim self-defense because he assumed the opposing party carried a firearm due to their status as a drug dealer, the correlation is not strong enough. Thus, courts allow the drug-violence connection to reduce defendant rights, but they don’t allow the connection to buoy defendant rights.
Ultimately there is no solid proof that drugs cause violence. Most drug offenders commit nonviolent offenses and at low rates. Though certainly drug addicts commit more crimes, they commit them at low rates, and the connection between drugs and violent crimes is complex and not conclusive. Empirical evidence that I discovered with Frank McIntyre actually shows that drug defendants commit less violent crime on pretrial release than any other group of defendants. An examination of the arrest and charging records of over 100,000 defendants pretrial showed that drug defendants were less likely to commit a violent crime when released before trial than almost any of the other defendants. Defendants brought in on violent charges were two to three times more dangerous than those brought in on drug crimes. In fact, those people brought in with drug felonies are about as likely to be rearrested as those brought in on driving-related offenses (like speeding). A 1997 survey of prisoners also indicated only 12% of federal drug offenders were ever convicted of a violent crime. And against common perception, prisoners incarcerated for violent offenses do not generally commit violent crimes for drug money. In 2002, only 5% of violent and public order offenders claimed to have committed their crimes for drug money. And even though all kinds of illicit markets are associated with violent activity, illegal drug markets generally operate without violence. For instance, Mexico has trafficked drugs for a century but has only seen an extreme rise in violence within the last decade.
Moreover, nicotine and alcohol may cause more harm to third parties than illicit drugs do. Both nicotine and alcohol are strongly linked to violence. In fact, no researchers have been able to prove that drugs have a direct influence on violence, and one study demonstrates that drug users are actually more likely to reduce violent criminal behavior after beginning drug use. Indeed, pharmacologically, as well as intuitively, some drugs can make an individual violent, and others may have the opposite effect. At best, the connection between drugs and violence is uncertain. Indeed, studies have pointed out that forces of violence are not caused by drugs but may come from economic hardship, poor intellectual capacity, an aggressive temperament, or other personality disorders.
The link between drugs and violence forms the foundation of U.S. drug policy and underlies federal and state case law and statutes. Politicians, courts, media, and scholars continue to advocate this view either explicitly or implicitly. Courts assert that drugs cause violence and crime. Statutes rely on the presumption that drugs cause violence, and defendants are punished more severely based on this presumption. Unfortunately, despite my empirical evidence and other studies debunking the drug-violence connection, courts and legislators continue to perpetuate the myth that drugs and violence are closely connected. This unsupported connection leads to a loss of important constitutional rights, trumped up mandatory sentences, and disproportionate increases in incarceration for non-violent defendants who pose little threat to public safety. The entire framework of federal and state drug statutes must be reworked to remove the many presumptions that drugs cause violence. Indeed, divorcing drugs and violence may be the key to saving U.S. drug policy.