But it's quite a leap from this critique to the conclusion that thebest way to eliminate harms is to eliminate prohibition; the story is far morecomplicated. A decade of study presented in our book, Drug War Heresies: Learningfrom Other Vices, Times, and Places has convinced us that legalization ofcocaine, marijuana, and heroin would lead to large reductions in drug-relatedcrime and mortality, but also to large increases in drug use and addiction. Poorurban minority communities, which have been devastated by drug violence and drugimprisonments, might benefit substantially, but the larger body of middle-classAmericans would likely be moderately worse off. It's impossible to persuasivelyquantify any of these effects, but in the face of this certainty (about thedirections of change) and uncertainty (about magnitudes), it's much less clearthan legalization advocates generally acknowledge just what American drug policy should be.
Step Right Up!
The usual assumption is that sales of cocaine, marijuana, and heroinwould be carefully regulated if made legal. But the U.S. experience withregulating other dangerous vices is not encouraging. State and federalgovernments have ended up allowing gambling, smoking, and drinking to be heavilypromoted in the marketplace, notwithstanding the abundant evidence that theycause great harm to many people.
Take gambling: In one generation the nation has shifted from an almostuniversal prohibition to the near universal availability of lotteries and casinos(and dizzying gambling promotion by government itself). A recent New York Statelottery ad proclaimed, "We won't stop until everyone's a millionaire." InCalifornia the come-on is, "Everybody gets lucky sooner or later, so don't takeany chances."
The legalization of gambling has brought great gains quite apart from thepleasure many people derive from fantasies of sudden wealth. Money thatpreviously went to criminals and corrupt police has been diverted to publiccoffers. Still, the policy has also generated serious costs, from the moraldebasement of state government to the expansion of problem gambling and,probably, white-collar crimes committed to cover gambling losses. About threemillion adults and adolescents now gamble so much that it causes real harm tothemselves and others, up from about 1.1 million in 1975. As for lotteries, thepoor spend a much higher share of their income on them than anyone else, makingthis method of financing public programs appallingly regressive. Households withincomes of less than $10,000 spent an average of $600 (on average more than 6percent of their total incomes) on lottery tickets in 1997, the last year forwhich survey data are available. Compare this with households whose incomesexceed $100,000; they spent an average of $300 (less than one-third of 1percent).
Tobacco is a different story. A continuing and aggressive public-healthcampaign has cut overall smoking rates in half in a generation. Few today doubtthat cigarettes are hazardous (although smokers tend to think they're lesshazardous for themselves than for other people), and the combination of civilrestrictions on where a person can smoke, health-insurance incentives, andpressure from physicians has made smoking a stigmatized behavior in manycommunities and subcultures.
Nonetheless, it's striking that a generation after the nation became aware ofsmoking's dangers, the tobacco industry manages to retain and promote a masslegal market for a deadly product. Indeed, the proportion of young people takingup smoking has stayed about the same over the last 20 years. The tobaccoindustry, meanwhile, remains a power in politics at every level of government. Itfought off one set of advertising restrictions by establishing the Freedom toAdvertise Coalition, which included the American Association of AdvertisingAgencies, the Outdoor Advertising Association of America, and the Association ofNational Advertisers. The industry's position was also supported by magazine andnewspaper publishers and by the American Civil Liberties Union, which announcedits strong opposition to cigarette advertising restrictions on First Amendmentgrounds. To defeat large increases in federal tobacco taxation, the tobaccoindustry allied itself with groups fighting against tax increases generally. Ithas very successfully broadened its political base by making strategic donationsto nonprofit groups. To date it has also succeeded in staving off regulation bythe U.S. Food and Drug Administration.
Alcohol regulation has historically been more restrictive than tobaccocontrol. In 1933 the country rejected Prohibition but with less than a ringingendorsement of easy access to liquor. When Prohibition was repealed, 15 statesinitially established state liquor monopolies; only nine states allowed retailsale of alcohol without food. In some states patrons could only be served attables; standing at a bar was believed to encourage overindulgence. Sunday saleswere widely forbidden.
Since World War II, however, all such restrictions, except those governing theminimum legal drinking age, have eroded and restrictions on the promotion ofalcohol were squarely halted by the Supreme Court's 1996 decision in 44Liquormart, Inc., v. State of Rhode Island. By now even federal liquor taxesare, by international and historical standards, very modest.
In the case of alcohol, it was apparently not the repeal of Prohibition thatincreased drinking: Consumption rates in the mid-1930s were well below thosebefore Prohibition. But as restrictions on the liquor industry were eased afterWorld War II and aggressive advertising began, consumption rates climbed to a1975 peak of 2.7 gallons of pure alcohol per capita from about 1.6 gallons in1940. Lately, programs aimed at reducing drunken driving, particularly amongyouths, have had a substantial impact on road fatalities but not on drinkingitself. And alcohol consumption still leads to 100,000 deaths annually.
When Freud Flogged Cocaine
It may be possible to design a regulatory scheme for drugs that intheory would avoid the harms of prohibition as well as the dangers of opencommercialization. But experience suggests that we'll have considerable troublemaintaining it. If we're unable to effectively restrain the promotion of alcoholand tobacco, each of which levies a terrible burden on society, it'sparticularly unlikely that the United States will do any better with marijuana, adrug less harmful than either of these (though not without hazards or addictivequalities).
Would regulation of hard drugs fare better? Those who now oppose legalizationoften cite the United States's experience during the time when cocaine, heroin,and other opiates were legally available. But we have found that the lessons ofhistory are not so obvious. For example, before it was prohibited in 1914, use ofcocaine was only about one-fifth as common as it is now and led to much lessviolent crime, according to new research by Joseph Spillane, reported in hisCocaine: From Medical Marvel to Modern Menace in the United States,1884-1920. A point for the legalizers? Perhaps, but criminalizing the drugdid result in sharp reductions in use for two generations, until the explosion ofusers in our own times.
Less equivocal is the effect, once again, of commercialization. By the 1890srespectable doctors and pharmacists had stopped prescribing and dispensingcocaine, having seen that it generated addiction and violence in patients. Thepharmaceutical industry, however, did not give up so quickly. As late as 1892,Parke-Davis, the most prominent of cocaine industry firms, published a referencebook with 240 pages on coca and cocaine of which only three contained negativereports -- and these ignored much of what was widely known by then about thedrug's dangers. Cocaine manufacturers continued to promote their productextensively, soliciting some of the earliest celebrity endorsements in theadvertising business. Sigmund Freud himself was persuaded to tout the quality andpurity of Parke-Davis cocaine.
The result: As medical use stopped, recreational use grew, especially amongthe poor. A Pharmaceutical Era report from 1904 reflects the public concern atthe time: "The cocaine habit is steadily growing in Newark among the boys whopool in the upstairs pool and billiard rooms. ... Scores of young men haverecently lost ambition and employment by the use of the drug in this manner and... several deaths have recently been caused by the habit." There was littlehesitation about prohibiting cocaine in the Harrison Narcotics Act of 1914.
Coffee and a Toke
Our mixed findings about other vices and other times do not bolsterthe case for legalization. Nor do they endorse current American policies, whichremain ineffective, unnecessarily harsh, and the source of considerable socialdamage. What we have learned from other places, however, suggests that these twostrategies are not the only choices. Not only is it possible to implementprohibition more sensibly, many other Western countries have already done so.
The Dutch decision to allow the sale of small amounts of marijuana and hashishin specially regulated coffee shops provides the best available evidence aboutthe advantages and limitations of such an approach. Dutch law unequivocallyprohibits possession of any form of cannabis, the plant from which both marijuanaand hashish are derived; international treaties signed by the country requirethat. Yet in 1976, the Dutch adopted a formal written policy of nonenforcementfor violations involving possession or sale of up to 30 grams. Since 1995 that'sbeen changed to five grams, but either is a sizeable quantity given that fewDutch users, according to research done at the University of Amsterdam, consumemore than 10 grams a month. The Dutch implemented this system of quasi-legal commercial availability in order to prevent excessive punishment of casual users,and to weaken the link between soft- and hard-drug markets by allowing marijuanausers to avoid contact with illegal sellers.
At first, cannabis use under this system remained stable -- at rates wellbelow those in the United States. But between 1980 and 1988, the number of coffeeshops selling cannabis in Amsterdam increased tenfold. They spread to moreprominent and accessible locations in the central city and began to promote thedrug more openly, even though they were not allowed to advertise in conventionalways. By the mid-1990s somewhere between 1,200 and 1,500 coffee shops (about onefor every 12,000 inhabitants) were selling cannabis products in the Netherlands,and use had exploded. Whereas 15 percent of 18-to-20-year-olds reported havingused marijuana in 1984, the figure had more than doubled to 33 percent by 1992 --during a period when rates were flat or declining in most other Western nations.And it has not dropped since.
Still, this rate of use in the Netherlands is somewhat lower than in theUnited States and in the middle of the range for Western Europe. One can beimpressed by the speed with which marijuana use spread after the coffee shopsstarted selling it widely -- or by the plateau of use at rates lower than thosein the United States, notwithstanding America's roughly 700,000 annual arrestsfor marijuana possession in the 1990s.
The Dutch data suggest that, by itself, removing criminal penalties againstusers has little effect on cannabis consumption. Experience elsewhere reinforcesthat conclusion. Decriminalization of marijuana possession in 12 U.S. statesduring the 1970s, and in two Australian states more recently, was not associatedwith any discernible increase in use. That's probably because merely removing thepenalties for use, without permitting commercial promotion of the drug, does notmake it significantly more available than under prohibition. In that sensedecriminalization offers only modest risks. But it also offers fairly modestgains, leaving black markets intact and failing to address the crime and healthproblems aggravated by prohibition.
The other major European innovation comes from conservative Switzerland.In January 1994, Switzerland opened a number of heroin-maintenance clinics in athree-year national trial of a treatment alternative for addicts not helped byavailable methadone-maintenance programs. The average age among addicts admittedto the trial was about 33, with 12 years of injecting heroin and eight priortreatment episodes. Addicts could choose the heroin dose they needed and couldinject up to three times daily, 365 days of the year, a regimen intended toremove any incentive for black market purchases.
By the end of the trial more than 800 patients had received heroin on aregular basis, apparently without leakage into the illicit market. Seventypercent were still in treatment a year and a half later, a much higher retentionrate than for most methadone programs; and Swiss researchers believe that asubstantial fraction of the 30 percent who dropped out of heroin maintenance wenton to other kinds of treatment. No overdose deaths were reported amongparticipants while they stayed in the program, and their behavior exposed them toless risk of AIDS. Crime was much reduced, according to both the addicts' ownreports and the government's arrest records. Those in the trial group holdingjobs they described as "permanent" rose to 32 percent from 14 percent;unemployment among them fell to 20 percent from 44 percent.
Due to a weak research design, it's not clear from the Swiss trial if theimprovement in patients was due to heroin maintenance or to the psychological andsocial services that addicts also received. Still, no one has made a claim thatthe heroin problem in the trial communities worsened as a result of allowingheroin maintenance. In 1997 the Swiss government approved a large-scale expansionof the program, although other countries continue to criticize it because Swissparticipants receive an average daily dose of 500 to 600 milligrams of pureheroin, a massive amount by the standards of U.S. street addicts.
Choosing the best policy for our own country is not a simple matter of addingup benefits and harms. For one thing, even if the average harm caused to societyby an incident of cocaine or heroin use were much reduced (as it very likelywould be with full legalization, for instance), that might not result in anoverall improvement. The total harm to society is average harm multiplied by thetotal quantity of drugs consumed. With any policy that results in many more users-- and perhaps heavier use among the most seriously addicted -- total harm mightrise even as average harm fell.
Moreover, there are many different kinds of damage: How does one weigh theincreased addiction certain to result from legalization against the reduced crimeand corruption that would also be generated? How does one balance reductions inviolence against potential increases in accidents and other behavioral risks ofdrug use? Money is hardly a satisfactory measure.
Another complication is that the advantages and disadvantages of differentapproaches will be unevenly distributed in society. Any substantial reduction inillegal drug markets will help urban minority communities, where drug sales nowcause so much crime and disorder. And that's likely to be true even if the levelsof drug use and addiction were to increase in those communities. For the middleclass, however, the benefits of eliminating the black market may look very smallin comparison to the increased risk of drug involvement, particularly amongadolescents. For liberals such as ourselves, redistributing the damage away fromthe poor is desirable and might even justify some worsening of the overallproblem, but not everyone will agree with that.
To further confuse the public debate, one size will not fit all. There is, forinstance, a strong case to be made for not only eliminating the penalties formarijuana possession but also allowing people to cultivate the plant for theirown use -- the approach currently taken in the state of South Australia. Thedownside risks (increases in marijuana use and respiratory illness) seem modestwhile the gains look very attractive: the elimination of 700,000 marijuanapossession arrests in the United States annually and the possibility of weakeningthe link between soft- and hard-drug markets without launching Dutch-stylecommercial promotion. But in the case of heroin, the desirability of some sortof prescription approach, on the model of the Swiss heroin-maintenance regimen,is much harder to gauge. (Further evidence will soon be available from a pilotheroin-maintenance program in the Netherlands, which may be helpful.) And withcocaine, it seems that any policy that permits easier access is likely to producesizeable increases in use.
What's clear, however, is that we do not have to choose between the twoextremes -- an all-out war on drugs or a libertarian free market -- usuallypresented in the American debate. More moderate alternatives are possible. Thepolicies of the Netherlands, Switzerland, and, increasingly, the United Kingdomand Germany, demonstrate that it's possible to reap most of the benefits ofprohibition without inflicting the harms caused by the punitive U.S. system. TheAmerican failure to see this is largely traceable to the popular notion that theonly defensible goal for drug policy is reducing the number of users (preferablyto zero). It would be equally rational, however, to seek also to reduce theharmful consequences of drug use when it occurs. To this end we could aim atreducing the quantity of drugs consumed by those who won't quit taking them, atack familiar from the American approach to controlling the use of alcohol. Andwe could undertake harm reduction with efforts based on the model of Americanproduct-safety regulation, which focuses as much on reducing the consequences ofaccidents as on reducing the number of them.
Working out similar strategies for drug control would not be easy nor wouldthe results be without risk. But they would likely be far more humane than eitherof the options usually put before us.