How Drugs Can Win the War on Drugs

now favors the outright legalization of marijuana
with nearly three-out-of-four adults in favor of legalizing
. These numbers should continue to grow, because
the polls exhibit a type of “generation effect,” in that people
are not changing their minds as they grow older. Some prominent
and diverse figures, such as Joycelyn Elders (Bill Clinton’s
Surgeon General) and the Reverend Pat Robertson now openly support
the legalization of marijuana.

libertarians want to end the war on all drugs, fully and immediately,
but in reality that will only happen after necessary initial
steps are taken. Colorado and Washington have already taken
some steps by legalizing marijuana. Other states will surely

of course, is still illegal everywhere under Federal law. Will
the Feds do something about Colorado and Washington? You bet
they will. They have already announced
their intentions to target large-scale growers and distributors.
They claim they will not go after consumers, if only due to
a lack of resources. As President Obama said, “We’ve got bigger
fish to fry.”

don’t be too sure that your president is telling you the truth.
Candidate Obama said that medical marijuana was a state issue.
However, under President Obama, raids committed on medical marijuana
dispensaries have occurred at four
times the rate
as under President Bush. The government has
also threatened landlords and banks that deal with medical marijuana


The people
of Colorado and Washington have effectively nullified
US drug laws in their states, with respect to marijuana. Nullification
occurs when a state, by legislation or referendum, invalidates
a Federal law that it deems unconstitutional or otherwise harmful.
Colorado and Washington have sent a powerful message that echoes
far beyond the illegal drug market. For a complete treatment
of the theory, history, and vital importance of this subject
I recommend Thomas E. Woods’s book,
Nullification: How to Resist Federal Tyranny in the 21st

the people of Colorado and Washington are also effectively nullifying
an international treaty on drug prohibition. Begun over a century
ago, the
United Nations Convention against Illicit Traffic in Narcotic
Drugs and Psychotropic Substances
seeks to enforce and
monitor the prohibition of illegal drugs.

In effect,
the voters of Colorado and Washington have placed themselves
and their states on equal legal footing with both national and
international governments. This is important, because, if thanks
to nullification, governments have to obtain acceptance, or
at least acquiescence from subsidiary governments, rather than
just imposing their dictates on them, they are more likely to
act in a less threatening and harmful manner.

This is
why the Federal government is faced with a difficult choice.
It can leave Coloradoans and Washingtonians alone and hope the
nullification movement does not spread, or it can try to impose
its will by marshalling the police resources necessary to start
busting growers, retailers, and even consumers.

The two
states are currently facing difficulties with constructing a
state-regulated system for marijuana production, distribution,
and sales, as well as establishing guidelines for the medical
and industrial marijuana industries. This is not surprising,
because by nature, governments at all levels do a poor job of
organizing anything, especially if it is something new or different.

Part of
the states’ difficulty is attributable to the Federal government’s
unwillingness to show its hand. State Representative Matt Shea
said that “The constant contradictions coming out of this (Obama)
administration lead to a massive amount of uncertainties.” All
this regulatory uncertainty is clearly bad for the development
of legalized marijuana markets.

of the State

Drug prohibition
is the “sword of the state.” The state must be willing to use
force against its citizens and it must occasionally demonstrate
this willingness by harming, arresting, imprisoning, and even
killing its citizens. Prohibition is the perfect instrument
because it is typically used against distrusted minorities and
poor people. Such groups have little political clout and are
naturally lured into participating in illegal markets by the
large amounts of money involved.

The war
on drugs is literally a street war. Smugglers, drug dealers,
and street gangs – who make their money selling drugs –
are armed to the teeth with high-powered weapons. The police
counter with machine guns, bullet-proof vests and helmets, and
even tanks. The collateral damage to innocent people has been

Andreas argues in Smuggler
Nation: How Illicit Trade Made America
(2013) that
the regulation and policing of illegal markets has been a primary
driving force in the creation and growth of the central state
apparatus since colonial times: “So even though warfare
and welfare are typically viewed as the main drivers of big
government, Smuggler Nation highlights another motor:
increased government size, presence, and coercive powers via
the policing of smuggling” (p. 7).

war on drugs has led to the militarization of the police,
a vast increase in police power, and a prison system with
over 2 million prisoners, a significant number of which are
imprisoned due to prohibition and smuggling. The war has also
led to a significant decrease of our constitutional rights
and a substantial increase in what the police, investigators,
and the court system can do to limit or infringe on our rights.


If the
federal government does intervene in Colorado and Washington,
then the people can also resort to jury nullification
as a legal remedy. Jury nullification occurs when a jury, after
hearing a court case, finds a defendant not guilty, even when
they believe the defendant actually committed the crime. Jury
nullification can occur either when the jury disagrees with
the law in question or they believe that it should not be applied
in a particular case.

people can make a law invalid if juries routinely apply jury
nullification to the prosecution of crimes based on that law.
Basically, if juries know they have the right to nullify a law,
and that if many juries consider the law unwanted, unjust, or
unconstitutional, then the law becomes de facto repealed.

is a great deal of debate over jury nullification. The State
would like to see jury nullification prohibited, however, they
have thus far been unsuccessful. Short this power, jurors are
prevented from learning their rights, in most jurisdictions.
The court does this by preventing defense attorneys from discussing
nullification with the jury and by giving instructions to juries
that only vaguely hint at the possibility of nullification.
Judges often bully juries to make their decisions based on the
established laws of the state, rather than on whether a true
crime has been committed.

In contrast,
some legal scholars note that nullification has long been a
right of juries. This right is supported by common law and legal
precedent. The problem has been that juries are not informed
of this right. However, there have been developments that suggest
that jury nullification is making a comeback in the battle against
big government.

In 2012,
New Hampshire passed a law that permits defense attorneys to
inform juries of their rights to nullification. This is a good
sign, although it is unclear how many juries have become “informed”
as a result. Legal expert Timothy Lynch considers
the law
an improvement, but that it is too weak to be considered
a full remedy for the rights of defendants and juries.

J.D. Tuccille
has pointed
that there has been a sharp increase in the number of
“hung jury” trials in the United States, and the evidence suggests
the increase is the result of de facto jury nullification.
If that is the case and people are nullifying laws in large
numbers across the country – and are unaware that they
have a right to do so – then that is a very good sign.
It means that a large and growing number of Americans recognize
that their government and certain laws are corrupt and immoral
and they are willing to disregard jury instructions from a judge.

If the
people of Colorado and Washington wisely use the power of jury
nullification to protect otherwise law abiding consumers, growers,
and distributors, the Federal government would be stripped of
its power in that area. Moreover, such developments would spread
the news about the power of jury nullification and we would
once again reestablish a powerful antidote to big invasive government.