The Limits of Legalization

Like Doug Bandow, I am appalled and disheartened by the irrationality and inhumanity of the current war on drugs. Nevertheless, I remain unconvinced that the strategy he proposes is either good or feasible. James Jacobs is right: The debate over legalization is the wrong one; it diverts us from the many things we might do to reduce drug abuse and create a more sensible drug policy.

The crucial problem with the case for legalization is that the proponents understate the potential costs and overstate the potential benefits of ending the criminalization of hard-drug trafficking in America. (I won't discuss marijuana because it is not the issue on which Bandow and I really differ.) The most basic concern about legalizing the sale of hard drugs is that it would

Hard Drugs, Hard Choices: An Exchange on Legalization
increase their availability and hence their consumption, thereby exacerbating the often devastating social costs of endemic drug abuse, especially among the most vulnerable and disadvantaged Americans.

Like many who call for legalizing hard drugs, Bandow tells us repeatedly, but without evidence, that most of the costs of the drug crisis are the result of prohibiting drugs, not of drug use itself. That view seems to me profoundly naive. We can adopt it only by ignoring the massive and mounting evidence on the adverse effects of endemic abuse on the most stricken communities. These effects range from deaths and multiple health problems (including vastly increased risks of AIDS and other sexually transmitted diseases as well as fetal damage) to family disintegration, child neglect, and the loss of jobs, livelihoods, and homes. Equally devastating is the community demoralization borne of drug abuse that prevents the most disadvantaged communities in America from mobilizing to change their condition.

That the damage is sometimes exaggerated by fervent drug warriors does not make it any less real. If we take that harm seriously, we cannot avoid being deeply concerned about the destructive potential of increased hard-drug availability.

We care about an overall increase in hard-drug consumption because we know from the history of alcohol use that higher consumption raises social and public health costs. It is hard to see why similar results would not follow from increased consumption of many hard drugs, including crack, methamphetamine, and lesser ones like PCP -- not to mention the virtually inevitable new "designer" drugs a legalized private corporate drug industry would develop.

Bandow cites recent declines in alcohol consumption to suggest that drug use need not rise after legalization. But this argument is a bit disingenuous, since alcohol consumption rose dramatically after its legalization and only began to decline in the early 1980s. While few critics would argue in favor of restoring Prohibition, no one should glibly assume that legalizing crack or crystal methamphetamine would leave their consumption unaffected.

Part of Bandow's solution to that conundrum is a proposal to tax drug sales. But, as many critics have pointed out, the conundrum remains: If we impose a tax onerous enough to discourage consumption, we encourage a black market in cheaper drugs that would perpetuate the very social problems legalization seeks to eliminate. If we tax drugs lightly, we do little to discourage consumption, especially for commodities such as crack that tend to produce the urge to buy repeatedly despite the cost in money, life, limb, and dignity.

Bandow suggests that we can also "temper" demand by restricting advertising. Certainly that is preferable to allowing crack advertisements in Rolling Stone, but research on alcohol suggests that advertising only marginally affects levels of consumption.


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Bandow's inability to explain how we would avoid increased consumption is especially worrisome because higher consumption would almost certainly exacerbate the existing social stratification of the drug crisis, its concentration among the poor and near-poor. It is among these vulnerable groups that offsetting measures such as education and drug treatment are least effective, and where countervailing social pressures and positive opportunities are weakest. According to a study by Colin McCord and Howard Freeman in the New England Journal of Medicine in 1990, Harlem blacks were 283 times as likely to die of drug dependency as whites in the general population between 1979 and 1981 -- before the crack epidemic. Coupled with their inflated death rates from cirrhosis and alcoholism, their substance abuse was a main reason, along with cardiovascular disease and homicide, why life expectancy among black men in Harlem was lower than that of their counterparts in Bangladesh.

Bandow's assurances about the potential of increased drug abuse by children and pregnant women are equally unconvincing. We could outlaw vending machine sales of drugs, but teenagers do not get alcohol from vending machines, and that has not prevented all too many kids from getting enough alcohol to destroy their lives and those of others. While acknowledging that under his "modified cigarette model" children could get adults to buy drugs for them, Bandow maintains that adults would be unlikely to do so. But consider the real-world social context of crack use. There is already a large and desperate army of adult crack abusers. How many of them would we expect to resist buying rocks for kids in exchange for a few hits for themselves? Of course, we cannot quantify that effect, but Bandow offers us no reason to doubt it.

On the issue of drug abuse by pregnant women, Bandow's reassurances are even weaker. We might, he says, ban sales to "anyone who is obviously pregnant." Will we also ban sales to the husbands, lovers, friends, and assorted relatives of the "obviously pregnant"? If not, how do we keep pregnant women from obtaining their drugs? Maybe, Bandow suggests, we could lock up pregnant drug users for child abuse. But the idea of first deliberately increasing the availability of drugs to women at high risk of abuse and then locking them up for succumbing to drugs is both execrable public policy and morally -- well, disturbing. Is Bandow suggesting that the threat of jail might have sufficient deterrent value to keep women's drug use low? An interesting possibility, since it implies that criminal sanctions can indeed deter drug abuse. In that case, his whole case against criminalization weakens considerably.

In short, Bandow fails to make a convincing case that legalization would not increase both the consumption of hard drugs and the resulting social costs.

The flip side of this underestimation of legalization's potential costs is an overestimation of its benefits. Like many other proponents of legalization, Bandow tends to exaggerate the independent contribution of criminalization to the destructive phenomena that surround the drug crisis, especially crime and the "sucking in" of young people to the illicit drug trade. Bandow apparently adopts the view that the crimes drug abusers commit are mainly or entirely caused by their need to buy drugs at inflated black market prices. But that is an oversimplification. We know that many addicts were involved in criminal activity well before they became addicted and that high rates of both crime and addiction have deeply embedded social and cultural roots that will not disappear simply by supplying addicts with cheaper drugs.

The argument tends to confuse the effects of drug criminalization with those of social deprivation -- or, more precisely, the interaction of drug criminalization with social deprivation and exclusion. The result is to overstate the contribution of criminalization itself to the magnitude of the drug crisis and correspondingly to overstate the beneficial impact of legalization. A comparative example may highlight the fallacy.

Consider a country that is staunchly prohibitionist even on marijuana, yet without the extreme adverse consequences that advocates of legalization would predict. Its streets are not infested with Uzi toting gang youth; its homicide rate hovers around a fifth of ours; it boasts a relatively small and in many ways declining drug problem, a substantial part of which involves amphetamine abuse; heroin use has stabilized, cocaine is a minor problem, crack is almost nonexistent, and youthful drug use is declining. There is an illicit drug market, but it is not filled with legions of young kids drawn to the inflated profits resulting from criminalization. The possession and sale of drugs are crimes, but the assumed consequences of criminalization are modest by our standards. That country is not a figment; it is called Sweden.

The lesson of the Swedish example is not that criminalization carries no costs, but that the magnitude of those costs -- like those of legalization -- depends on the social context. Sweden does not have legions of poor kids killing each other in the illegal drug market because Sweden does not have legions of poor kids. And for similar reasons, the demand for hard drugs is not big enough to support legions of dealers.

The lesson from abroad is that there is an alternative, and more constructive, way to think about drug policy, which combines more realistic shifts in regulatory policy with far greater attention to the causes of drug abuse. The debate over legalization is diversionary because it tends to deflect our attention from both these goals. But pursuing both those aims simultaneously without legalizing hard drugs is precisely what has happened in some countries that have been far more successful than the United States in controlling their drug (and crime) problems, and I think we should learn from those real-world examples.


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The most promising strategy would borrow heavily from the Dutch with an admixture from the Swedes. (Contrary to some impressions, the Dutch do not legalize hard drugs; they pragmatically combine a de facto de-criminalization of marijuana with tough enforcement against hard-drug trafficking.) To borrow a phrase from the Swedes, such a strategy is "solidaristic." Its first principle is the reduction of the demand for hard drugs through broader social policies that enable full social and economic participation, with a special concern for reducing deprivation, alienation, and exclusion of the young. To these policies it would add a compassionate but tough-minded approach to drug abusers. It would make every effort to assist them to reduce their abuse through improved treatment and, more important, the provision of serious help with other life problems. At the same time, it would also insist, as the Dutch and (especially) the Swedes do, on the responsibility of abusers to learn to take charge of their own lives.

A solidaristic drug policy would strive to minimize the social and personal harm from hard-drug abuse through needle exchanges, better and more accessible health care for high-risk populations, and other "harm reduction" strategies. And it would make far less use of criminal sanctions for hard-drug users, while continuing to pursue traffickers. It would not legalize hard-drug sales on the grounds that the costs to social welfare, public health, and social solidarity are morally as well as practically unacceptable.

In the American context, that strategy will necessarily mean considerable spending on criminal justice in the foreseeable future. But we can allocate it more rationally by directing greater resources toward local law enforcement to help communities resist being inundated by dealers, rather than the more expensive alternative of incarcerating users; by placing most response to the use of hard drugs outside the criminal justice system; and by reducing our current mind-boggling and counterproductive sentences for the drug offenses we do prosecute to levels in line with those of more progressive countries.

Unlike legalization, this approach to our drug problem has a great deal of potential public support. Americans, according to the polls, do not like the idea of legalizing hard drugs. They do, however, approve of more preventive antidrug strategies. And they approve of a wide range of efforts to integrate all Americans more fully into a productive common life.

If we seriously want to tackle the drug problem, we will move beyond the rather stagnant debate on legalization to develop a credible, politically feasible, and compassionate drug policy with a smaller and more targeted role for the justice system. Above all, we will get on with the task of reducing the massive social deficits that have given us the worst hard-drug problem in the industrial world. If we neglect that task, we will continue to struggle unsuccessfully with our drug problem, whatever regulatory policy we adopt.

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