Elite Model of Drug Laws

Rather than concentrating on the question of why people commit drug-related crimes, the elite model of drug policy shifts the focus of inquiry to the question of why governments define certain drug-related activities as criminal and then enforce the resulting laws in particular ways. Derived in some important respects from the social conflict theories of Marx, legal realism, and critical legal studies, the elite model characterizes society as conflict rather than consensus driven, and argues that as a result those with less power are more likely to be defined and dealt with as deviants and criminals. Accordingly, drug laws are selectively and sporadically employed against politically, socially, or economically marginalized groups as a service to the interests of social, political, or economic elites. The elite model postulates, for example, that the associations of opium with the Chinese, of cocaine with blacks, of alcohol with urban Catholic immigrants, of marijuana with Latinos, of urban ethnic minorities with heroin, and the purported decline of civil society with drug-crazed bohemians during the 1950s and acid-ridden hippies during the 1960s, are propagandistic depictions employed by government-dominating elites to control segments of the population that are considered economically or politically problematic.

In Marxist theory, criminal justice systems are operated to protect the interests of the capitalist elite. Property rights are so composed as to secure an economic hierarchy that leaves those on the bottom little choice but to seek survival, and perhaps some socioeconomic advance, through criminal activities such as drug trafficking. Drug use and trafficking by the owners of capital and wealth are rarely investigated or prosecuted, and a similar approach is taken to “white-collar crimes” as they are designed to keep the working populace in a disadvantaged position. As an added benefit, prisons offer cheap labor, incarceration reduces unemployment statistics, and a healthy prison system provides jobs for construction, maintenance, and security personnel.

Critical legal theorists view criminal law as one of the basic institutional structures erected to insure that the state and its citizens are held hostage to the vision of society, the political values and the economic preferences of whatever faction is at power [Page 280]at any given time. Drug policy is tied to the ideological tenor of the elites in power and to the incentives offered by them to both judicial nominees and political candidates. In return for the monetary and networking support of elites, both judges and the political elect develop drug policy and enforce drug laws as one means of asserting control over the poor, the socially marginal, or the politically dangerous.

Certain legal realists echo the critical theorists by taking the position that as the criminal law is indeterminate it is instrumental, reflecting and perpetuating social, political, and economic hierarchies by manipulating legal concepts and principles in order to rationalize results commensurate with the class origins and interests of policy makers and judges. The “realpolitik” of judicial appointment, to this way of thinking, is that political and social ideology rather than character or competence are the behind-the-scenes criteria of both judicial appointments and the choice of candidates for judicial and legislative election and appointment. Accordingly, drug policy and the legal decisions that follow are subjective rationalizations of the structure of class relationships.

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