Dealing with Legalization

Although hostilities abroad have captured the attention of Americans over the last year, the U.S. remains mired in a costly domestic conflict -- the drug war. While both President Bush and members of Congress seem to hope the issue will simply fade away, millions of people still use drugs, drug-related crime and killings continue to rise in major cities, drug enforcement officials violate the civil liberties of the innocent as well as the guilty, and drug dealers seduce young people into joining their criminal enterprises.

Yet as the drug war has dragged on, the sense of crisis that once surrounded it has lessened -- making this an opportune moment to reassess the war and debate the direction of future policy. For we must consider more than the usual minor reforms advanced by Washington policy makers. We need, instead, a serious and rational debate on the legalization, or really re-legalization, of drugs.

Proposals for legalizing drugs have entered the mainstream of public debate in recent years. Frustration with a futile, yet evermore costly war on drugs has prompted support for legalization from a number of respected, conservative figures, such as Milton Friedman and William F. Buckley, Jr., as well as present and past public officials, such as Baltimore Mayor Kurt Schmoke, former Secretary of State George Shultz, and federal Judge Robert Sweet. Some people, like William Bennett, the former drug czar, have denounced "intellectuals" for even raising legalization as an option. Privately, however, many of those on the front lines, including cops, prosecutors, and pastors, now want to end drug prohibition.

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Yet what would legalization really mean? Some advocates of the status quo have found it easier to criticize the absence of a blueprint for legalization than to defend drug prohibition, as if the lack of detailed consensus among legalization advocates justified the excesses of the drug war. Writing in The Public Interest last year, James Jacobs, a professor at New York University Law School, argued, 'The lack of a fleshed-out legalization proposal makes it extremely difficult to assess or to criticize the legalization position. Skeptics vainly try to fix their sights on a moving target." In the interest of putting such criticism to rest, I want to spell out here how legalization might work in practice.

Why Legalization?

Criminal sanctions against drug use are bad policy for at least five reasons:

  • Criminal sanctions against drug use improperly limit the freedom of adults to use substances no more dangerous than others now available legally and imprison people for actions that do not directly harm others, in contrast to most crimes.
  • Criminalizing drug use fails to reduce it significantly. A large percentage of the population has experimented with drugs (one-third of those over the age of twelve have used marijuana, for instance). Most others have access to drugs if they want.
  • Sanctions increase the danger of drug use by forcing users into an illicit market.
  • Criminalizing drugs entices children to use and sell drugs by creating a criminal underground offering kids economic opportunities unavailable elsewhere.
  • Drug prohibition causes the bulk of murders and property crime in major urban areas by creating a black market characterized by warring suppliers, who charge inflated prices to users, who in turn steal to pay for their habits. Drug prohibition also fosters crime abroad, funding violent entrepreneurs and even terrorist insurgencies that threaten fragile civilian governments in poor countries.

The repeal of drug prohibition would, of course, not result in heaven on earth, but it would allow a reduction in spending on the criminal justice system, end the steady increase in arrests and imprisonments, cut the number of deaths from drug use, reduce the temptation posed to children, and cut the crime rate. Overall, drug use would likely rise, but probably only modestly; the increase would consist chiefly of casual experimentation, which is not a serious problem in the absence of criminal sanctions and an illegal market. Although the mere elimination of criminal penalties for drug use would cause some combination of these effects, the exact impact on crime and drug use would depend upon how drugs were legalized.

Legalization Options
The question of what would follow the end of drug prohibition is thus vitally important. "Even if a legalization option were adopted," says one outspoken opponent, Congressman Charles Rangel (D-NY), "many questions remain as to how drug usage would be regulated." But, he complains, advocates of legalization "never seem to have answers."

Dropping the ban on drug use would not be a jump into the unknown. The United States has long experience regulating alcohol and tobacco and for more than a century allowed the use of cocaine, marijuana, and opium. Moreover, many other nations, such as the Netherlands and Great Britain, eschew America's draconian prohibitionist policies. Marijuana is effectively legal in the Netherlands, while in Britain doctors are able to prescribe not only heroin, but in an experimental program in Liverpool also smokable (though not crack) cocaine.

Because virtually no legalization advocate proposes unrestricted drug sale and use, there are a number of strategies for creating a legal market. These include six major options:

  • legalize the less dangerous drugs;
  • decriminalize, rather than fully legalize drugs;
  • require use through a doctor;
  • sell drugs in government stores, as alcohol is sold in some states;
  • allow the sale of drugs in private establishments, with some restrictions, such as bans on sales to minors and the use of vending machines;
  • permit unrestricted sales.

Since each alternative has somewhat different advantages and drawbacks, we need to give separate attention to each one.

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The least radical step to relax drug prohibition would be to differentiate types of drugs, legalizing those viewed as least dangerous. Not surprisingly, marijuana receives the widest support for legalization, although some analysts would add heroin. Stephen Mug-ford, an Australian sociologist, has suggested distinguishing between cannabis, on the one hand, and cocaine and heroin, on the other, by making the former available commercially and the latter only through a licensing system.

Partial legalization would eliminate some of the worst features of prohibition by dropping sanctions from the most widely used illicit substance or substances. Legalizing marijuana alone would end half or more of all current drug arrests, well over one million a year, allowing either a reduction in enforcement efforts or a concentration on the sale of harder drugs. Doing so would also cut out an important profit center for criminal dealers.

Moreover, allowing the legal use of pot would help provide a firebreak between use of the most acceptable illegal drug and use of other, "harder" drugs. In contrast to today's illicit providers, legal dealers offering marijuana would have no incentive to move customers on to amphetamines, cocaine, or heroin. Users would also more likely distinguish between a substance viewed as comparatively benign and other drugs that the government was still attempting to keep out of their hands. Dr. Giel van Brussell, head of the Narcotics Office of Amsterdam's Department of Health, cites this as a major factor in the success of his country's policies: Young people can buy marijuana "in the coffee shops and see that if s relatively harmless. They can also see that hard-drug users suffer from physical deterioration." To enforce criminal penalties against both groups, he argues, would merge the two now very different drug scenes.

This approach would also offer the opportunity to expand the policy after further study. Ethan Nadelmann, a professor at Princeton's Woodrow Wilson School, suggests a gradual "shift toward legalization" beginning with the legalization of marijuana, which would provide "ample opportunity to halt, reevaluate, and redirect drug policies that begin to prove too costly or counterproductive."

Nevertheless, maintaining the drug war, even while reducing its scope, would perpetuate many current problems. If heroin remained illegal, property crime would remain high as addicts continued to steal to finance their habits. Keeping crack illegal would ensure continued violence as dealers fought over territory. Even if the government concentrated on controlling these substances, it would not be able to eradicate their sale, at least not at an acceptable cost. For instance, one briefcase of synthetic heroin could supply all of New York's addicts for a year. America will never be able to eliminate the distribution of so little product between willing sellers and buyers and remain a free society. Nor will foreign nations be free of violence and terror as long as cocaine and heroin are produced in their countries by criminal cartels.

A policy of partial prohibition would also maintain the morally questionable practice of locking up people who do no direct harm to others. It would still drive what is primarily a health and social problem underground, creating a stigma that makes it difficult for some people to get help. And it would discourage medical research and information dissemination about the dangers of drug use.

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Another option would be to decriminalize, rather than fully legalize, drugs. The government could substitute civil for criminal sanctions against drug use, punishing users with a fine rather than prison; at the same time the government would maintain criminal penalties against sellers, as did the eleven states that decriminalized marijuana use in the 1970s. (This was, in fact, essentially the law during Prohibition.)

Decriminalization would preserve legal disapproval of drug use, thereby presumably discouraging demand to some degree, without jailing people for harming themselves. Enforcement efforts could be relaxed and prison resources reduced.

Still, decriminalization would not fully address the problems that make legalization the best option. While users would not go to jail, those who were caught would be punished for committing an act not unlike pouring a drink. Moreover, the government would still arrest and imprison those who supplied an arbitrary set of substances to willing buyers.

As a result, the black market would remain a profitable field for criminals, leaving largely unchanged the problems of corruption, crime, and violence that exist today. And by keeping drug use illicit if not criminal, decriminalization would still discourage drug research and information-sharing, prevent any quality control or dosage standardization for drug use, and leave kids vulnerable to the allure of the drug trade.

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Some support exists for a third alternative: requiring the approval of a physician to use drugs, as under the British system. Drug use would be legal, but drugs would be available only through a doctor, who would either provide a prescription or dispense the drugs. In 1989, for instance, New York State Senator Joseph Galiber introduced legislation allowing licensed doctors and pharmacists to sell drugs (without requiring prescriptions). A related approach, advanced by attorney Frederick Campbell, would be to limit the availability of drugs to recognized addicts through special clinics. Or the government could require licensure for legal users. For instance, Mark Kleiman of Harvard University has suggested creating a "drinking license" that could be revoked if abused.

The advantage of these sort of systems is that they would retain some controls over users, who might have to sit through a lecture on the health effects of their preferred drug, be continually monitored by a doctor, and so on. The system would also preserve some stigma for users, presumably discouraging demand.

Unfortunately, the very benefits of the system would also cause its biggest drawbacks. By placing users under the control of doctors, the system would degrade consumers. Such a process seems unfair -- why pot smokers but not cigarette smokers? Also, the more stringent the system, the more likely that an illicit market would continue. If addicts alone received drugs, there would still be widespread demand for black market supplies from those not designated as addicts. Moreover, some people would attempt to be recognized as addicts to become eligible to receive drugs; addiction would, in Kleiman's words, be "a legally privileged status."

The experience of Great Britain demonstrates the problems of this system. A small number of doctors with a special license may prescribe cocaine, dipipanone (a powerful narcotic), and heroin. They may also determine how the addict satisfies his habit -- with oral doses of methadone, for instance, rather than injections. The stringency of the system, especially after the government tightened its rules in 1968, has sharply limited users' legal access to drugs. As a result, crime has increased as more users attempt to circumvent what they consider to be a humiliating rule.

The resulting black market is not nearly as severe as in the U.S., with far less crime, as well as fewer deaths from AIDS passed among intravenous drug users. However, only about 7,000 of an estimated 30,000 to 35,000 heroin addicts were purchasing drugs legally in 1985. Leaving a similar 80 percent of cocaine, crack, heroin, and marijuana users outside of the legal market in the U.S. would ensure the survival of a huge, violent criminal underground.

Even a system allowing almost anyone to use drugs but only at a clinic would not eliminate black market demand. Such a system, observes Nancy Lord, an attorney and doctor, would "not be attractive to addicts who use drugs in a home environment, with their choice of friends, music and food. The prospect of restricting their drug use to a clinical or governmental setting would probably be so unattractive to them that the demand for black market drugs would undoubtedly continue."

Finally, such a system would place an inappropriate burden on doctors. Many who view their job as healing the sick would be uncomfortable dispensing potentially dangerous drugs, even to willing users. And throwing the drug problem into physicians' offices is probably not a good use of medical resources, especially given the current problem of providing Americans with affordable care.

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Another form of legalization would be to sell drugs in government stores, as alcohol is sold in some states. When Prohibition was ended by the Twenty-First Amendment, the law did more than just return to the status quo. Instead, the Twenty-First Amendment both repealed the Eighteenth Amendment, which had made the manufacture, sale, and transportation of alcohol illegal, and gave states almost carte blanche over alcohol use within their borders.

Alcohol regulation across the country is a patchwork. Most states allow the sale of beer and wine in private stores, but some limit hard liquor sales to state "ABC" stores. Some give counties authority to ban sales by the drink in bars. The drinking age once varied by state, although federal pressure -- including the threat to cut off highway funds -- has prompted every state to increase the age to twenty-one. Alcohol is widely advertised, but state stores do not promote their wares in this way.

Thus, currently illicit drugs could be made available to adults in state stores. The government would merely be in charge of selling, not growing or making drugs, which could come from domestic or foreign sources. The latter markets would likely become legal once the U.S. stopped pressuring foreign nations to disrupt their societies by following Washington's prohibitionist policies. There would be no advertising (courts have ruled that government may place more restrictions on "commercial" speech than on other forms). Prices would reflect a component to help pay for the social cost of drug use.

Such an approach would be a vast improvement over prohibition, eliminating the black market and the vast profits made by criminal enterprises. A gray market serving the young would still exist, but such "leakage" would pose less of a problem than we have today. Because illegal sales would largely disappear, children would not likely be recruited as dealers of drugs. (No high school students wear beepers selling alcohol or cigarettes, despite the leakage in those markets.)

One problem of government-controlled distribution is that it might appear to give an official imprimatur to drug use. Opponents of legalization have long argued that eliminating the legal prohibition on drug use would appear to encourage drug use. Yet unenforceable legal prohibitions have had little apparent effect in shaping moral attitudes. Nevertheless, having the government provide and profit from sales may appear to sanction use. Indeed, Michael Gazzaniga, professor of neuro-science at Dartmouth Medical School, cautions against a plan that makes the government a pusher. "If the drug-treatment centers were dependent on income from the [government-run] Drugstore, the bureaucrats running the store might be tempted to increase profits."

Putting sales in the hands of a government monopoly would also eliminate the traditional benefits of competition for users. Prices would likely be higher, access more restricted, and service poorer in a government-controlled system. Of course, since even most advocates of legalization want to restrain use, just without resort to the criminal law, such inefficiency might be considered a benefit -- unless it was so great as to make a black market a profitable option. Restraints on demand could, however, be better achieved by taxes on private sales. It would also be easier to adjust the tax to ensure that no black market flourishes.

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Another legalization option would be to allow the sale of drugs in private establishments, with some restrictions, such as a ban on sales to minors and the use of vending machines, as is done with cigarettes.

The most obvious benefit of following a "cigarette model" would be to eliminate the primary costs of prohibition: more than one million arrests annually, rampant crime, pervasive corruption, a violent criminal underground, and foreign terrorism. The substances sold would themselves be safer, since quality and quantity would be standardized, manufacturers would be liable for impurities, and information would be widely available about the health effects of different substances, at varying dosages and when used with other drugs. This approach would also be more appropriate for our form of free society, with a minimum of government control.

There are two major drawbacks to this approach. The first is that demand would probably increase to some degree. There are, however, reasons to believe that allowing the private sale of drugs would not turn the nation into a large crack house. For instance, we appear to have had no more opium addicts per capita when its use was legal than we have heroin addicts per capita today. Moreover, drug use responds to many factors, as does consumption of such substances as alcohol and tobacco, both of which have been falling even though they are cheap and legal.

In any case, the government could take steps to temper demand without being so draconian as to recreate a black market. Drugs could be taxed, generating revenue to help meet the cost imposed by drug users on society. Moreover, all advertising, including sponsorship of sporting events, could be banned, just as federal law currently forbids television advertising for cigarettes and distilled spirits. Moves currently underway at both the state and national levels would ban tobacco company sponsorship of athletic events and prohibit alcohol advertisements that suggest drinking a particular brand can improve one's social status. Georgette Bennett, a sociologist, has even proposed that drugs be sold generically, without any brand-name competition. (For similar reasons nationalization of the tobacco industry has been suggested.) Such a policy could be considered a variant of the government-stores approach.

The second major problem involves young people, who would undoubtedly get drugs, just as they are able to acquire cigarettes and liquor. No system would be foolproof; indeed, as of 1990, despite the expenditure of more than $10 billion annually, the federal government has not been able to prevent 22.7 percent of kids between ages twelve and seventeen from having tried illicit substances. (It is noteworthy that this number, which peaked at an incredible 34.3 percent in 1979, started to slide before the Reagan administration inaugurated its intensified drug war.) However, this form of legalization would allow the remaining drug enforcement efforts to be directed at limiting the "gray market" for the young. Drug vending machines also could be outlawed (just as many localities are now moving to ban cigarette machines) and merchants made liable for significant penalties for selling to young people. The problem of older friends and strangers buying drugs for young people, the principal means of minors' access to alcohol today, would remain, although more adults would probably view drug sales to kids as "wrong," helping to restrict access.

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Finally, the most drastic alternative would be to repeal the drug laws in their entirety, allowing unrestricted sales. All restrictions, other than tort liability for adulterated products, on currently illicit drugs could be lifted. Advocates of this position are in a minority, but include Ron Paul, formerly a Texas congressman. Drugs would be treated like aspirin, with virtually no restrictions on sales. Use by children would probably, though not necessarily, be prohibited; five states do not bar cigarette sales to minors. People using drugs would be held legally responsible for their actions, as are drunk drivers today.

The main practical benefit of such an approach is that it would eliminate the evils of prohibition. The advantage of this system compared to more regulated regimes is that it would avoid the costs and inefficiencies of government control and would not encourage the existence of any black or perhaps even gray market. Finally, it would maximize individual freedom, an important consideration usually overlooked in drug policy debates.

Nevertheless, the costs of this strategy might be significant. Children would certainly have greater access to drugs, yet there is a substantial interest in protecting them until they are considered legally competent to decide whether to use dangerous substances. Moreover, drug use could increase, perhaps sharply, imposing costs on other members of society, such as increased health care for indigent users. Such a result is not inevitable. Cocaine use was legal in the nineteenth and early twentieth century, and there is no evidence of a crisis at that time. Nevertheless, given the risks posed by widespread use of drugs, it is reasonable to try to discourage drug use and to collect revenue from users to help defray the social costs they generate.

A Tentative Proposal
Drug prohibition has failed. It is not just; imprisoning people for using a substance, even a harmful one, violates their basic rights unless their actions directly harm others. Yet most of the damage from drugs today results, not from their use, but from the ban on their use. Moreover, our reliance on criminal sanctions has not significantly reduced demand at an acceptable price, in terms of human freedom, deaths and crime, social disruption, and financial cost.

Since drug use is not harmless, however, some restrictions are appropriate. Mark Kleiman argues, "Our central concern should thus be with classes of users for whom the damage done by the drug is disproportionately higher: the young, the poor, and the heaviest users, and with the illicit market whose corruption, crime, violence and criminal income cause widespread damage."

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What, then, should a legal market look like? Use by adults should be legal; criminal penalties should apply only to those who sell to youngsters. The Drug Enforcement Agency should be disbanded, with enforcement entrusted to local police, since sale to minors (rather than production or smuggling) would be the primary drug crime. Public pressure, too, could be brought to bear on firms to combat juvenile drug use; in late 1990, for example, the tobacco industry finally announced a campaign to curb smoking by minors.

The federal government should prohibit advertising in any national or interstate medium and ban interstate sales by mail. All federal laws controlling distribution and sale should be repealed, however, leaving the issue up to the individual states. Thus, local and state governments could experiment with different systems.

Of particular interest should be a modified cigarette model. States would legalize the sale of all illicit substances, however damaging to the user. "While there are some drugs that we cringe at making legal," writes James Ostrowski, "these are the very drugs that the public would cringe at using if they were legalized."

Keeping these drugs illegal would merely increase the social costs associated with them. The only exception should be substances shown to cause a very high percentage of users to commit violent acts against others (perhaps PCP, for instance). The mere fact that users might be more likely to commit a crime -- as are those who drink -- would not be enough to warrant a ban. But users of legal drugs would be both civilly and criminally liable for actions they commit while under the influence. Driving offenses, for instance, would be treated like standard cases of drunk driving.

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Private firms would be allowed to sell formerly illicit drugs, but such establishments would have to be specially licensed and regulated to limit leakage to children. Moreover, use of vending machines would be prohibited. As Ethan Nadelmann has noted: 'It is important to realize that legalization does not have to mean following in the same stupid footsteps traced by our alcohol and tobacco policies. We do not have to make potentially dangerous substances available in vending machines at seven cents a piece in packages of 20. Nor do we have to subsidize growers or provide the substances at subsidized rates to our military personnel."

Advertising might be banned; warnings would be included on packaging and health information made available in stores. State governments would also prohibit public giveaways (a marketing ploy now used by some cigarette producers).

Manufacturers and sellers would bear normal tort liability for contaminated or mislabeled products, but users would assume the risk for using otherwise "safe" drugs. Developers of new drugs, however, might be held normally liable for any ill health effects of their products. The Food and Drug Administration could underwrite testing programs to measure the effects of different drugs, as well as determine what dosages are most safe. It would not be empowered to ban these sort of substances that it found to be dangerous, however, since that would move us back to prohibition. Retail outlets might face liability for selling to intoxicated patrons (through the so-called "dram shop" laws now applicable to bars, for instance) and could be closed as public nuisances if they created unreasonable disturbances in a neighborhood.

States could levy a tax on drug sales to finance an advertising and educational campaign on the substances' dangers, fund health care and addiction treatment programs for indigent users, and provide social services for the families of users who are harmed (just as some families fall into poverty because of the actions of alcoholics or chronic gamblers). Special consideration should be given to the use of drugs by pregnant women. Perhaps sale to anyone who is obviously pregnant should be banned; perhaps putative mothers who use drugs (including alcohol and tobacco) should face charges of child abuse. At the extreme, pregnant women who use drugs could be jailed, as have a handful in the past after positive drug tests. Such an extension of government control rests on questionable legal grounds as long as women are free to abort their pregnancies; moreover, such intrusive regulation is disturbing and difficult to enforce. But the consequences of drug use, like heavy alcohol consumption, during pregnancy do affect another human being who deserves protection by the state. Exactly what steps are appropriate requires further debate.

Finally, government officials should emphasize the role of the family, church, community, and business in restraining otherwise destructive behavior. Social pressure has helped reduce the appeal of alcohol and cigarettes; a growing majority of people support discouraging cigarette use in public places. Even illicit drug users respond to social pressure. For instance, Stephen Mugford found that cocaine users "limited their use, and did so because of the wider web of social ties into which they were embedded." Churches should speak to the more fundamental needs that cause people to seek solace in drugs. Private firms and public agencies, such as the Pentagon, could bar or limit drug use when it adversely affects productivity and safety. Government officials could also continue to use their "bully pulpit" to help harness various social forces to discourage irresponsible drug use after criminal sanctions were lifted. Indeed, it was just such pressure from Health and Human Services Secretary Louis Sullivan and other members of the black community that helped sink cigarette company plans to market new brands to blacks and women.

Overall, it is important to build a social ethic to discourage irresponsible behavior, whatever the drug involved. And that is only likely to come when people have choices. As Mark Kleiman has pointed out, coercion is hardly likely to improve anyone's power of self-control. Of course, legalization in itself would not promote self-control over destructive impulses. We need a concentrated effort by a whole range of social institutions to achieve that end.

Many advocates of continued prohibition do not even want to discuss legalization. James Jacobs argues, "Perhaps the most negative effect of [the legalization] debate is that it is diverting time, resources, and attention from the more pressing question of how to reform the war on drugs so as to reduce drug use more effectively, and to minimize social and economic costs while preserving civil liberties." Yet that is precisely what the argument over legalization is about -- deciding whether another strategy would better restrain drug use at far less social cost. Whether drug prohibition works does not depend on the method of legalization.

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Still, if policy makers move toward legalization, the kind of system to be established will become an important issue. Spelling out legalization in practice may help satisfy some critics. But, as Nadelmann writes, "It is, in the final analysis, unreasonable to expect all advocates of what has been called 'legalization' to unite on a single plan. Like the 'drug prohibitionists,' they are split among themselves on moral, ideological, and political questions and vary greatly with respect to both their reassessments of the costs and benefits of alternative policies and their recommendations of which policies should be implemented."

In the end, we need to treat drugs as "a category of grudgingly tolerated vices," as an opponent of full legalization, Mark Kleiman, puts it. A modified cigarette model appears to be the best intermediate position between prohibition and full legalization. In adopting this approach we would simultaneously recognize the importance of individual rights by allowing adults to use currently banned substances and the importance of protecting others from irresponsible behavior by imposing reasonable restrictions on use and holding users responsible for any harm they cause. Such a system would best maximize individual freedom while minimizing the social costs of drug use.

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