Beginning in the late 1980s, an almost "unspeakable" proposal (Kerr, 1988) has been advanced with great urgency and frequency: Should the currently illegal drugs be legalized? The proposal has touched off a virtual firestorm of controversy; judges, a few politicians, journalists, physicians, drug researchers, the general public, and even a few police officers have entered the fray, voicing support for the proposal. What ignited the controversy? Why now? And does it make sense?
Critics of the present policy toward drugs"Lock 'em up, and throw away the key"are legion. The system doesn't work, or works extremely badly, and desperately needs fixing. We are told that "everyone knows" that arresting addicts is "a failure." Tens of billions of dollars of law enforcement money are being expended on criminalizing and imprisoning hundreds of thousands of drug violatorsperpetrators of a crime whose only victim is themselves. Three prison cells out of every 10 in America are now reserved for the user, the addict, the drug seller. As we saw, in 1970, there were 200,000 prisoners nationwide; in 1995, that figure surpassed a million for the first time in the history of the United States. In the earlier year, the first-time drug violator could look forward to probation; today, increasingly, it is imprisonment. We are getting tougher on drugs. Has this worked? Over the past half-dozen years, illicit drugs on the street have been getting purer, more potent, more abundant, and cheaper. Something's not working. Between 1980 and 1990, the use of illegal drugs declined sharply, but after 1990, it began rising again, albeit slightly. However, drug overdoses are increasing, new admissions to drug treatment programs are increasing, and seizures of illegal drug shipments are increasing. As law enforcement steps up the pressure, the problem seems to grow apace. How do we put an end to drug-related crime and violence, the grip of criminal drug gangs in the inner city, drug overdoses, drug use in the sixth grade? Perhaps we are doing something wrong. Perhaps the problem is law enforcement, not drug use itself. Perhaps we need a fresh look at the problem, a new solution. What about legalization?
Certainly the many criticisms of our current regime make a great deal of sense. Some of them are accompanied by impressive empirical evidence. Because drugs are illegal, they are expensive and hence, they are hugely profitable to sell. The financial incentive to go into the drug business is immense. And herein lies the rub. Drugs cannot be "stamped out" at their source, nor can they be intercepted at the border in sufficiently large proportions to make interdiction worthwhile. In fact, considering the obstacles to such efforts, it seems astounding that anyone retains a shred of faith in them. Drugs can be produced on small tracts of land in countless locations around the world. When they are stamped out in one locale, they "pop up" somewhere else. In some locales, such as Burma (or Myanmar), there is virtually no effective central government to oppose or confront drug producers; it is the drug lord who controls the territory in which drugs are produced. In others, the local or federal government has been seriously compromised or corrupted by drug producers. And smugglers are almost infinitely imaginative and resourceful in figuring out a way to get drugs through. Shipments of illegal drugs are seized, and such seizures are routinely publicized. But most officials estimate that the seizures make up anywhere from two to 10 percent of the total. Most of it gets through. But the picture is even more daunting than this: Even if half the bulk of illegal drugs were seized before distributionan outrageous logistical impossibilitythis would make a difference of only a tiny fraction of the total price of this bulk. There is no doubt about it: Stamping out drugs at their source and seizing them at the border cannot put an end to the illegal drug tradecan't even make a dent in its volume. In spite of law enforcement efforts, it's "business as usual."
Legalization turns out to be a great deal more complicated than most of both its advocates and its critics imagine, however. Hidden behind the word is a host of very different proposals, each one of which is likely to have its own special and unique set of consequences. Do we legalize marijuana only or the hard drugs as well? Do we legalize the now-illegal drugs while, at the same time, restricting access to the currently legal alcohol and tobacco? Should we put the illegal drugs on a control schedule similar to that which currently applies to the prescription drugs? If so, what is the medical justification for dispensing cocaine to a poly-drug-dependent 17-year-old? And will we have to submit data, as we have to do now for the prescription drugs, demonstrating that the to-be-legalized drugs are "safe and effective"? Safe in what sense? Effective for what? Do we permit the over-the-counter sale of the now-illegal drugs in a kind of federal drug "supermarket"? Does it make sense to demand prescriptions for Valium, yet permit off-the-shelf sale of heroin? If drugs are relatively easy to obtain today, wouldn't their availability increase after legalization? Who would be able to purchase them? Who wouldn't? Who is legally liable if a teenager dies of a drug overdose after purchasing a supply of heroin from a state-controlled "drugstore"? If former smokers who get sick as a result of smoking can sue tobacco companies, can addicts sue the government for dispensing heroin and cocaine? At what dose should these newly legal drugs be sold? In what quantity? Will we permit advertising of drugs in the media? Will their manufacturers encourage consumption as aggressively as is now the case with beer, cigarettes, and automobiles? (See Inciardi and McBride, 1991, for similar queries.)
Critics of legalization schemes are far more numerous than their proponents. Many envision a "worst-case scenario" of tens of millions of new addicts dotting the urban landscape, standing on street corners, staring, zombie-like, into space, or passed out in the gutter. Advocates assure us that this will not come to pass, that most Americans will be moderate in their use. Some even claim that, under the new regime, users will naturally gravitate to less harmful, less potent drugs, such as cocaine chewing gum, opium, marijuana, and peyote. But even if there is an increase in use, the advocates of legalization claim, look at all the evil consequences of the present criminalization policy; they will melt away like snow in a warm April rain. We can end drug-related crime and violence, the grip of drug gangs in the inner cities, death and sickness from contaminated drugs and drugs of variable or unknown potency, corruption and brutality of the police, the violation of the civil rights and civil liberties of citizens. Consider the advantages of legalization. Consider what we will gain. Consider what we will no longer be burdened with. The proposal sounds tempting.
But would legalization result in a greater volume of drug use? What evidence do we have that can answer the question? No one can be sure about what will come to pass under legalization. Still, some scenarios are more likely to happen than others. We do know some facts that address (but do not definitively answer) the question. We know, for example, that, in the limited sense of reducing the consumption of alcohol, Prohibition "worked"; that is, there was less alcohol consumption during Prohibition than before and after. (There were also a number of additional nasty consequences, but that is another matter.) We know that current addicts and abusers do not use as much heroin or cocaine as they'd like, that they'd like to use a great deal more than they do now. Some days they don't use at all; they can't raise the cash to make a purchase. Or they are too tired or too sick to go out and find someone to victimize for a "score." If they were able to purchase a supply of cheap, medicinally pure heroin or cocaine at a government drugstore, well, that would be different! There would be no "hassle" involved in getting their hands on what they want, and, in all likelihood, they'd use a lot more. We also know that when drugs are or were readily available (among physicians and other health workers, or as was the case among soldiers in Vietnam), use and abuse rise significantly.
We know that, for alcohol and tobacco at least, price is related to sale: The higher the price, the lower the sale. We also know that the continuance rates for the legal drugs are high: Users are very likely to continue taking them, relatively few give them up. But for the illegal drugs, continuance rates are quite low; a small minority continues to use them. Is this the "hassle factor" once again? Most knowledgeable observers know that most of us will not become addicts or abusers if the currently illegal drugs were legalized. But that is quite a different matter from recognizing that a large increase in a small minority of heavy, chronic, abusive users can inflict a great deal of damage on themselves and on the rest of us. A reading of the evidence indicates to many knowledgeable observers that, yes, the abuse of heroin and cocaine would increase under legalization. Most of us would not use these hard drugs, and even most of those who would, would do so moderately and nonabusively. It's that small minority that we have to worry about, and it's what they are likely to do that makes legalization an extremely risky proposition.
And crime and violence? Will legalization make a dent in what has become one of the nation's paramount concerns? The logic of the argument appeals to common sense. After all, drug abusers and addicts commit crime to obtain drugs because the drugs are so expensive, and they are expensive because they are illegal. Lower the price, and they won't commit crime so much. Methadone maintenance patients display the pattern: Off methadone, they commit a great deal of crime; on methadone, in comparison, their crime rate drops to half to one-third of its former level. And dealers, too, will commit a lot less crime. Right now, they kill one another (and, occasionally, an innocent bystander), often in business-related altercations. Legalization will bring this mayhem to a virtual halt.
A close inspection of the evidence leads us to some not quite so optimistic conclusions. Right now, there are a great many arrests related specifically to illegal alcohol sale and consumption (in fact, more than all drug arrests combined), and alcohol is a legal drug. Second, most experts now reject the "enslavement" model on which the legalizer's argument is based. They are pretty much agreed thatwhile drug use, addiction, and abuse intensify the crime ratedrugs do not generate crime. In fact, most heavy users are already well into a criminal way of life before they become involved with drugs, and, legalization or no legalization, their lives are saturated with criminal activity. Legalization cannot change this picture. Third, under several less-than-full legalization programs (such as partial decriminalization in the Netherlands), there are as many imprisonments for drug violations (almost exclusively the sale of large quantities of hard drugs) as there are in the United States. And fourth, there is a painful dilemma in "fine tuning" any legalization plan. It goes something like this: To wipe out crime, increase availability; but if availability is increased, use will increase and, along with it, a variety of harms including, in all probability, criminal activities associated with heavy use. But decrease availability, and all the ills associated with the present system will return. It is possible that this dilemma is insurmountable. No intelligent gambler is likely to place much of a bet on a drastic decline in the crime rate under legalization.
A major point in the legalizer's argument is the fact that many of the harms that the currently illegal drugs inflict are secondary or indirect harms, while all the harms of alcohol and tobacco, being legal drugs, are primary or direct harms. Even if the use of heroin and cocaine were to rise, we could not experience the damage that alcohol and tobacco inflict on the society, because these legal drugs are intrinsically more harmful. After all, the legalizers say, over 400,000 Americans die prematurely as a result of smoking cigarettes, and some 100,000 to 150,000 die from the consumption of alcohol. In comparison, the deaths from the illegal drugs represent a fraction of that number. Hence, we have nothing to fear from legalization. The argument is appealing. It is difficult to imagine a drug that contaminates the lungs the way tobacco smoke does, or one that ravages the liver as alcohol does. The problem is, we don't know whether the differential in deaths results from the extent and volume of the legal drugs or from their inherently damaging qualities. Some sources of death from heroin and cocaine would decline under legalization, such as the rate of new HIV infections. (Although, even under our current system, we could institute needle exchange and condom distribution programs, which should have the same impact.) It is entirely possible that an increase in the use of these two dangerous drugs would render the legalizer's argument questionable. Certainly the fact that 2 percent of all heroin addicts a year in the United Kingdom, where a more liberal and less punitive drug policy reigns, die, mainly from overdosesthe same figure as in the United States (Goldstein, 1994, p.241)should make us wonder about whether anything resembling legalization would bring about the public health benefits that its advocates claim. And, at bottom, the fact that the illegal drugs are saferor more dangerouson a dose-by-dose, episode-by-episode basis than the legal drugs is really quite irrelevant. The fact is, of all drug programs we could institute, in all likelihood, the one that would save the greatest number of lives would be to restrict access to tobacco and alcohol. This would include huge increases in taxes, banning all vending machines, enforcing laws against the sale and use of cigarettes to minors, further restrictions on public smoking, a vigorous enforcement of the drunk driving laws, and a variety of restrictions on the sale of alcoholic beverages.
Scrutiny of legalization proposals and the criticisms that have greeted them reveals that there is much more to the debate than meets the eye. More specifically, adopting one or another side in the debate is not a simple question of weighing the relevant empirical evidence and reaching a reasoned, informed conclusion. Indeed, moral, political, and ideological considerations come into play in the debate in a major way. Where one stands on the legalization issue depends on where one stands more generally. A spectrum of ideological positions arrays itself along the legalization-prohibition continuum. Cultural conservatives see drug abuse as yet another manifestation of moral decay; they see legalization as a cowardly surrender to that decay. Free-market libertarians see drugs as property and believe that citizens should have the right of access to them, free of any government meddling or restriction. Radical constructionists see the "war on drugs" as a smoke screen; in reality, it is a war on the poor, designed to divert attention away from society's most serious problems. The solution? A redistribution of society's resources and the empowerment of the poor and the powerless. Progressive legalizers and progressive prohibitionists agree that many reforms are necessary; where they part company is on the question of the relative importance of human rights versus public health.
Given the dense entanglement of the issue of legalization in ideological and political considerations, it is unlikely that it will be decided on empirical or consequentialist grounds alone. It is unlikely that any of the more radical proposals laid out by the legalizers will be adopted any time in the foreseeable future. However, what the debate has done is introduce some crucial issues to the public arena. The debate has been healthy. It will force a reconsideration of our current and very harmful strategy of criminalizing the addict and user. However, legitimate criticism of the present system is not the same thing as devising a viable alternative strategy. Still, perhaps when the current wave of conservatism has subsided, some of the legalizer's more moderate proposals will be given a fair hearing. It is entirely likely that a number of them will be adopted within a generation. While some of them are, in my view, seductively appealing but do not hold up under scrutiny, some others make a great deal of sense. Perhaps a detailed and systematic study will manage to sort out the productive from the harmful. I remain, on the basis of very little evidence, optimistic about the odds that at least several of the best of the legalizer's proposals will be in place in some jurisdictions during my lifetime. We live in dynamic times, and I look forward to progressive changes in our current system with great anticipation.
Appendix A Brief Guide to Drug Effects