America lost its greatest thinker on drug policy and criminal justice on Sunday, when Mark Kleiman died at the age of 68 from complications of a kidney transplant. He spent essentially his entire adult life in public policy, serving as a congressional aide, an analyst for federal and local government, a consultant, and a professor of public policy at NYU and UCLA. Although he was an extremely partisan Democrat, Kleiman recognized the need to build a bipartisan consensus on drugs and criminal justice. To that end, he cooperated with the conservative criminal-justice group Right on Crime, wrote for National Review using arguments and frames targeted to its readership, and generally forged collegial friendships with people who were open to his ideas about criminal justice and drugs regardless of serious disagreement on other issues.
As expressed in its most programmatic form in Against Excess, Kleiman applied rigorous economic logic, but with the curious inversion that the markets he studied have severe externalities and ruin the lives of their most devoted consumers. Market failure and high transaction costs are policy successes when the commodity is poison, and so good policy means encouraging bad market design. For instance, Kleiman favored a noncommercial approach to marijuana decriminalization precisely because he expected nonprofit or state-operated dispensaries to be less efficient than for-profit firms, and in particular less likely to grow the user base through advertising and make intense use more convenient. The billboards advertising dispensaries, and even marijuana delivery, that saturate Los Angeles are exactly what Kleiman thought sensible decriminalization should avoid.
But just as good market design has to be careful, so does deliberately bad market design. A major argument in Against Excess is that if you make selling drugs risky by locking up drug dealers (or encouraging them to shoot each other over territory), you build in a risk premium to the price, which draws in suppliers who don’t mind risk. The better approach is to create a deadweight loss so you don’t encourage more supply. For illegal drugs, make it a time-consuming hassle to score. For legal drugs like tobacco and alcohol, impose stiff excise taxes. In both cases the consumer faces costs that do not benefit, and therefore encourage, sellers. These costs might not discourage addicts in the short run, but long-run demand is relatively “elastic”: Increased costs from hassle or taxes can discourage potential users from starting and encourage existing addicts to quit.
A curious consequence of Kleiman’s logic is that he consistently preferred an emphasis on retail markets rather than high-level distributors or source-country trafficking. His reasoning was that street prices substantially reflect retail markup. In the United States and most European countries, retail markup is about half of the purity-adjusted street price for cocaine and heroin, and the domestic wholesale price itself is about five to ten times higher than the wholesale price in source countries. Source-country interdiction efforts do increase wholesale prices, but this has little effect on retail prices and destabilizes countries. For instance, if you have read Killing Pablo or seen Narcos, you know about the escalation of the dirty war against the Medellin cartel by American intelligence and the Colombian National Police in the early 1990s, but this bloodbath had only a trivial and short-lived impact on retail cocaine prices in the United States, which is still cheaper than it was in the crack era.
Kleiman’s opposition to drugs was not puritanical, and if you told him you enjoyed an occasional drink with dinner or every few months smoked weed at a party, he’d shrug. His opposition to intoxicants was in recognition of the fact that while the typical vice can be enjoyed safely by most users, a majority of the market demand is from a minority of addicts. For instance, three in four American adults drink, but most drinks are consumed by the one in eight American adults who drink to excess. Similarly, there are far more occasional and basically responsible users of illegal drugs than there are drug addicts, but it is the drug addicts who consume most drugs. Even if the typical user gains some benefit at minimal cost from occasional mild intoxication, most of the aggregate use is from people who meet the clinical definition of addiction disorder: They are unable to stop or cut back despite their drug use creating problems at home, school, or work.
Kleiman took seriously the problems of all intoxicants, whether legal and conventional or illegal and deviant, but also recognized that culture is a constraint. Even if a Martian would observe that unlike marijuana, alcohol can kill through acute toxicity and encourages violence, here on Earth we must factor in that alcohol is an entrenched part of American culture, and so we can seriously contemplate only incremental changes to alcohol such as higher excise taxes. In contrast, whether and how to decriminalize marijuana was something Kleiman wrestled with throughout his career, from his 1985 dissertation (“Allocating Federal Drug Enforcement: The Case of Marijuana”) through his consulting with the state of Washington on how to implement legalization 30 years later. That it is somehow “unfair” to marijuana to treat it more harshly than alcohol was irrelevant to him. As a society we are essentially stuck with one dangerous intoxicant, and we must decide whether to increase the use of another on top of that.
Kleiman’s cost–benefit analysis took seriously costs and benefits to all stakeholders. The public fisc mattered, but so did the welfare of criminals and crime victims, of addicts and addicts’ families. Contrary to the perspective of both neoconservatives and social-justice advocates, Kleiman understood both crime and mass incarceration as serious problems. As he frequently put it, most of the criminal-justice debate could be characterized as a struggle between followers of Michel Foucault and those of the Marquis de Sade — people who see social control as inherently illegitimate and those who want to brutalize criminals. Kleiman accepted that there was a trade-off between reducing crime and reducing mass incarceration, but argued that the trade-off could be minimized through good policy designed with careful cost–benefit analysis.
Jointly tackling mass incarceration and crime was the aim of his most famous book, When Brute Force Fails. At a theoretical level, the book is an argument that Gary Becker’s economic theory of crime must be radically reconceptualized in light of behavioral economics. Becker argued that deterrence was the expected value of punishment, defined as the probability of punishment times its severity, which has the practical upshot that we can achieve deterrence by punishing infrequently but severely. However, behavioral economics suggests that people aren’t good at reckoning unlikely-but-severe outcomes — and if ever there were a group of people who live for the moment and ignore the future, it would be those who are either intoxicated or addicts looking to score. (Contrary to popular myth, relatively few prisoners are incarcerated for non-violent drug offenses, but many violent and property offenses are committed while intoxicated or to acquire money for drugs.) This implies that a ten-year prison sentence won’t have much more of a deterrent effect than a five-year sentence would. In practice, extremely long sentences serve not to deter crime, but to induce plea bargains and incapacitate criminals throughout their prime-offending young years — and beyond.
When Brute Force Fails is an important book not just for contributing to a theoretical dispute, but also for its empirical evidence and practical solution: mild but extremely consistent punishments, the opposite of Becker’s approach. Kleiman spotlights the work of Judge Steven Alm, who randomly assigned probationers in his Honolulu courtroom to either traditional probation or his experimental Hawaii’s Opportunity Probation with Enforcement (HOPE). In practice, traditional probation consists of a series of warnings from an overworked probation officer who eventually declares the probationer in violation and recommends that the judge apply the often-lengthy suspended prison sentence. In Judge Alm’s experiment, the probationer, prosecutor, public offender, and probation officer pre-committed to a system of frequent urinalysis, for which a positive or missed test would result in an immediate but brief stay in jail. Although only a third of probationers were in Judge Alm’s court for a drug charge, he made frequent drug testing its focus because two-thirds of probationers had tested positive for methamphetamine at arrest. The experiment was a great success, with dramatically lower rates of rearrest, revocation of probation, and incarceration for the treatment group. Notably, Judge Alm and his probationers achieved this reduction in crime and drug abuse without the court providing drug treatment — the deterrence effect of a minor but swift and certain punishment was sufficient to achieve great improvements.
Kleiman suggests adopting urinalysis for probationers more broadly and extending its logic to other ways of monitoring offenders, such as through GPS ankle bracelets, as a way to impose social order at lower cost. Making detection of recidivism nearly certain and punishment for it swift but mild may finally break the despair of “nothing works” without the naïveté of pure jailbreak politics. Judge Alm may have named his experiment HOPE in aspiration for the probationers in his courtroom, but it provides a similar promise all of us: that we can end mass incarceration without returning to the “no radio in car” era. Kleiman is no longer with us to advocate for such reforms, but we have the legacy of his work to guide us.
May his memory be a blessing.