Washington, DC, September 3, 2013 --  

America's prohibition of marijuana has ended. The drug war, unfortunately, lives on.

For the second time in a century, America has ended a failed experiment with prohibition. Last week, the Justice Department told federal prosecutors to respect legalized marijuana laws in Colorado and Washington¹, effectively ending 65 years of attempts to stamp out its use.

While federal laws prohibiting marijuana possession and sale remain on the books, the decision of the Obama administration to defer to conflicting state laws will make it extremely difficult for future administrations to change course -- especially given sympathetic public sentiment on legalizing marijuana. Unlike the 21st Amendment that dramatically legalized alcohol in 1933, marijuana prohibition is ending with a whimper: a Thursday press release by the Justice Department, right in the middle of the Washington press corps' black hole before Labor Day weekend.

Including Colorado and Washington, 20 states and the District of Colombia have legalized marijuana at least for medicinal use.² In places like California, this is merely a fig leaf to cover a reality of legalized recreational sales. On the Venice Beach boardwalk, hawkers in Rastafarian costumes offer "free consultations" from beachside dispensaries. The attorney general's announcement is sure to embolden many state activist to push for full legalization in 2014 elections. This will make America's post-prohibition marijuana policy soon look similar to 1930s America, where anti-alcohol laws quickly crumbled nationwide, leaving only a few die-hard dry states and counties.

While symbolically important, this change represents a relatively minor part of America's drug war, whose more destructive effects are caused by prohibitions against harder drugs like heroin and cocaine. While prohibition of these substances has been as much a failure as that of marijuana, there are no signs of changes in their legal status.

But even here, there is good news. Earlier last month, Holder ordered federal prosecutors not to seek mandatory minimum sentences in certain nonviolent drug cases, including those covering these substances.³ This earned mild criticism from the Republican chairman of the House Judiciary Committee, but nothing like the poisonous reaction that would have been expected a decade ago at the height of the political fight on mandatory minimum sentencing. In the Senate, two bills to soften mandatory minimum sentences for drug and other crimes have the support of libertarian-leaning Republicans Rand Paul and Mike Lee.⁴

Republican support for these reforms stems from the enormous government spending needed to keep 1.6 million Americans behind bars.⁵ Because most of these are in state and not federal prisons, it is often governors who are on the forefront of moving non-violent drug offenders out of the prison system.⁶ California reduced its inmate population by nearly 10 percent last year through these efforts. Even Republican-led states are in on the game. Over the past decade, Texas' Rick Perry led one the first state efforts to reduce the prison population of non-violent drug offenders.⁷

Of course, sentencing heroin and cocaine users and low-level dealers to rehab, probation or community service instead of prison is a far cry from ending prohibition of these drugs. And while legalization activists have great momentum, there is little chance of repeating their successful state-based strategy of legalizing marijuana with legalizing cocaine or heroin.

Is it possible to end the war on drugs without legalization of harder substances? The real challenge comes from fighting production and distribution. So long as there are millions of willing buyers in the United States -- something that shows little sign of changing -- there will be billions of dollars to be made from making and selling illicit drugs. Because the raw materials for drugs are typically grown by poor farmers in places with weak law enforcement (heroin starts with Afghanistan's opium and cocaine starts with cocoa in Columbian Amazonia), military-style measures are always a tempting option, even if they are not always effective. And they are especially destructive in more developed places like Mexico, where organized crime groups control smuggling operations and both corrupt the system from within and engage in violent clashes with authorities and civilians.

Truly ending the war on drugs requires finding a way to make peace with the growers, manufacturers and distributors of hard drugs. Compared with legalizing pot and limiting prison time for users and dealers, this is extremely difficult. Ending prohibition of marijuana has been a hard-fought battle, and drug war opponents have every right to savor their victory. Those who wish to fight on should know they have a much tougher road ahead.

Related Web Columns:

Drugs and Fear in Paradise, February 23, 2010

Cracking the Monolith, December 12, 2000

Discarding Bad Apples
The Role of Prison in a Meritocratic Society, February 22, 2000

Notes:

1. USA Today, Justice Dept. Won't Challenge State Marijuana Laws, August 29, 2013

2. Marijuana Policy Project, State Policy, as posted, September 2, 2013

3. National Public Radio, With Holder In The Lead, Sentencing Reform Gains Momentum, August 7, 2013

4. Ibid.

5. U.S. Department of Justice, Prisoners in 2012 - Advance Counts, July 2013

6. Ibid.

7. Economist, An Unlikely Alliance of Left and Right, August 17, 2013