Civil Disobedience and the War on Drugs

Recently, writers of the HBO show The Wire wrote a Viewpoint column in Time magazine in which they make an interesting - and controversial - argument for the use of civil disobedience in the war on drugs. The television show, which came to an end of its five season run in March, is set in Baltimore and explores the nature of inner-city collapse from multiple sides.

Their conclusions:

What the drugs themselves have not destroyed, the warfare against them has. And what once began, perhaps, as a battle against dangerous substances long ago transformed itself into a venal war on our underclass. Since declaring war on drugs nearly 40 years ago, we've been demonizing our most desperate citizens, isolating and incarcerating them and otherwise denying them a role in the American collective. All to no purpose. The prison population doubles and doubles again; the drugs remain.

Their proposal: a call for civil disobedience in the form of jury nullification. Quoting Thomas Paine, who observed that "A long habit of not thinking a thing wrong, gives it a superficial appearance of being right," the writers declare:

If asked to serve on a jury deliberating a violation of state or federal drug laws, we will vote to acquit, regardless of the evidence presented. Save for a prosecution in which acts of violence or intended violence are alleged, we will - to borrow Justice Harry Blackmun's manifesto against the death penalty - no longer tinker with the machinery of the drug war. No longer can we collaborate with a government that uses nonviolent drug offenses to fill prisons with its poorest, most damaged and most desperate citizens.

The writers acknowledge that their small actions will not solve the drug problem, will not heal America's civic wounds, do not address the better use of resources, and do not generate new economies in neighborhoods where the only remaining economic force is the illegal drug trade. But they draw strength for their position in American colonial history, where jury nullification represented a refusal to be manipulated or railroaded by the Crown. They cite the 1735 trial of John Peter Zenger, a newspaper editor charged with sedition and libel against William Cosby, Governor of New York Colony. Zenger's defense attorney, Andrew Hamilton, won the case not by defending his client's innocence, but by arguing that the law itself was wrong, and that Zenger's writings were not libel because they were based on fact. As the writers observe, "[A]bsent a government capable of repairing injustices, it [jury nullification] is legitimate protest."

As one might imagine, most reactions to the Viewpoint article were impassioned objection, and the writers themselves were accused of seditious behavior. What all these objections had in common, however, was the assumption that the legal system works. That assumption, in my view, is the fatal flaw in objectors' logic. There is altogether too much evidence suggesting that justice is not blind; that race and economic class are strong predictors of trial outcome; and that far too many individuals have been incarcerated on death row only to be acquitted by DNA or other new, sophisticated techiniques for the analysis of evidence.

A more global argument about substance use and regulation is offered by David T. Courtwright in his book Forces of Habit (Harvard, 2001). Courtwright describes how merchants and colonial planters expanded world supply of substances like tobacco, caffeine, opium, cannabis, and coca, driving down prices and effectively democratizing drug consumption. Over the years, this policy of expansive supply has given way to (futile?) policies of restriction and prohibition, while economic and social considerations have molded these policies to leave some substances (alcohol, tobacco, caffeine) readily accessible while others are forbidden altogether, even when there is evidence of medical usefulness (cannabis and opiates in the case of pain management).

I think the writers of The Wire have made an important statement in the service of reframing the question of substance use, abuse, regulation and restriction. As my father, a military veteran and logistician, likes to observe: "Having lost sight of our objectives, we've redoubled our efforts." What are the objectives of the war on drugs? Are they achieveable - or even desirable - in a democratic state? How do we square our stated objectives with the outcomes that create distorted markets and lucrative incentives too alluring to refuse? And, finally, do we have the political fortitude to revisit the question, challenge our assumptions, and acknowledge, as did Thomas Paine, that our long habit of not thinking a thing wrong has transferred upon it the invincibility of right.

Posted by Lisa Zanetti