So far, we've looked at the drug legalization debate mainly from an "objectivistic" perspective. That is, I've attempted to establish something of a factual or empirical foundation for the debate: What proportion of the population uses which drugs, with what frequency, and, to some extent, with what effect? However, as I said early on, this approach is misleading or at least incomplete for a very good reason: Approaches to drug legalization are powerfully influenced by the political and ideological position of the observers and analysts who adopt them. Consequently, at this point, before laying out the nuts-and-bolts proposals of each plan and evaluating each one, it might be interesting to explore in what ways the various positions on legalization versus criminalization rest on their moral, ideological, political, and philosophical foundations. For the moment, let's set aside the empirical adequacy of the various views on legalization and try to understand where the authors of several of the most prominent views on the question are "coming from" ideologically and politically. How does each argument fit into the larger value framework?
Let it be said at once that the political landscape is a maze of contradictions. Politics, we are told, "makes strange bedfellows." Perhaps nowhere is this more apparent than on the issue of drug legalization. Positions that are very close to one another in general may actually have drastically differing views on drug policy; likewise, positions that seem poles apart on most other issues may agree on the question of what to do about drugs. Here, a distinction between legalizers and prohibitionists may very well be fractured by crosscutting political views. In other words, seen politically, views toward legalization may be seen as the secondary manifestation of deeper and more compelling ideological commitments. To be more specific about it, most conservatives oppose a relaxation of the drug laws, but many extreme conservatives favor a program of complete decriminalization. Many radicals oppose certain forms of legalization as state control and, in that view, agree with many extreme conservatives, who propose something of a laissez-faire or "hands-off" policy. Black politicians, usually well at the liberal end of the political spectrum, are (with a few exceptions) staunchly opposed to drug legalization (Rangel, 1988, l991a, l991b). Technically, and looked at in either-or terms, legalizers and prohibitionists stand on opposite sides of the fence on the issue of legalization, but "progressive" legalizers and "progressive" prohibitionists share much more in common than the first does with the more extreme or "hard-core" legalizers and the latter does with the more extreme or "hard-core" criminalizers. Consequently, the usual political spectrum is not a very useful road map for finding out where someone stands on drug policy. Here are some of the more high-profile views on the drug legalization issue: cultural conservatives, free-trade or free-market libertarians, radical constructionists, progressive legalizers, and progressive prohibitionists.
Cultural conservatives believe in "old-fashioned" values; they feel that what's wrong with the country, drug abuse included, is that too many people have strayed too far from age-old custom and tradition. We should return to mainstream religion, the traditional family, conventional sexual practices, the "basics" in education, strong communities where neighbors care about one another, conformity to traditional values, moderation in our consumption of alcohol, and complete abstention from illegal psychoactive substances, and so on. What's bad about this country is too much freedom, rampant individuality, hedonism, selfishness, a lack of concern for our fellow human beings, Godlessness, lack of a communitarian spirit, a too-heavy reliance on the federal government to do things for us, not enough self-controlall leading to divorce, abortion, pornography, illegitimacy, crime, violence, and drug abuse. Cultural conservatives believe that everyone is responsible for his or her own actions, that all actions are an individual moral choice. No one has the right to hide behind social "factors" or "conditions" which, others claim, cause or influence people to do things. The cultural conservative would see the conflict theorist's statement that drug abuse is related to power, residence, and socioeconomic status as little more than an excuse for illegal and immoral behavior. To the cultural conservative, strengthening morality means defeating illegal and immoral behavior, including drug use; when morality fails to take hold, law enforcement must step in and take over. In fact, law enforcement is an agent of morality, since it teaches violators that they can't get away with breaking the law. Just as important, it is the job of law enforcement to ensure that justice is meted out, and justice is trampled on whenever the law is violated.
Cultural conservatives adopt the legalistic definitions of drugs and drug abuse which I spelled out much earlier; that is, a drug is an illegal psychoactive substance, and drug abuse is use of a drug outside a medical context. They draw a sharp distinction between alcohol on the one hand and all currently illegal drugs on the other; alcohol is not a drug, nor is alcoholism a type of drug abuse. For the cultural conservative, drug abuse is immoral, a repugnant vice. (As is alcoholalthough it is not drug abuse.) By their very nature, drugs degrade human life. They should be outlawed because indulgence in them is a repudiation of the status quothat is, tradition, conservative values, all that is good and true (Kleiman and Saiger, 1990, pp.535-536). Intoxication represents an unhealthy decadence; an expression of degeneracy; a quest for a spurious, insidious, ill-gotten, illegitimate pleasure. It is incompatible with a decent life; the two are contradictory. In The Index of Leading Cultural Indicators, a documentation of what's wrong with this country, William Bennett (1994), former federal drug "czar," quotes James Q. Wilson to the effect that: "Even now.. ., many educated people still discuss the drug problem in almost every way except the right way. They talk about the 'costs' of drug use and the 'socioeconomic factors' that shape that use. They rarely speak plainlydrug use is wrong because it is immoral and it is immoral because it enslaves the mind and destroys the soul. It is as if it were a mark of sophistication for us to shun the language of morality in discussing the problems of mankind" (p.42).
Interestingly, cultural conservatives believe that there is too much government spending and intervention in nearly all areas of life, but with some major exceptionswhere there is too little. One exception is that far more money should be spent for a "more effective and tough-minded criminal justice system, including more prisons, judges, and prosecutors" (Bennett, 1994, p. 11). Juveniles who commit violent crimes should be tried as adults; convicts should serve out at least half their sentences, and less parole should be granted; fewer cases should be dismissed on technicalities; less probation and fewer suspended sentences should be handed out; and so on. Cultural conservatives are adamantly opposed to the legalization of the currently illegal drugs. Bennett refers to arguments for legalization as "morally scandalous," "irresponsible nonsense" (Massing, 1990, p.30). Again, note that the ravages of the legal drugs do not enter into the cultural conservative's equation at all; says Wilson, while tobacco shortens human life, cocaine debases it (1990a, p.27). A clear-cut expression of the cultural conservative point of view on the drug question was vented by Senator Jesse Helms in 1995; in attempting to derail a bill designed to allocate more federal dollars to AIDS sufferers, Helms argued that, instead, we should reduce funding for AIDS, because those who contracted the disease did so as a result of their own "deliberate, disgusting, revolting conduct" (Seelye, 1995). He was, of course, referring mainly to homosexuals and drug addicts (and not to hemophiliacs, contaminated-blood transfusion victims, or children of infected mothers). The fact that Senator Helms is the tobacco industry's staunchest and most powerful allyand that tobacco kills as a result of the "deliberate" actions of smokersunderscores the selective vision of the cultural conservative.
The answer to the drug problem for the cultural conservative, then, is a return to traditional values. Law enforcement is seen as an ally in this struggle. Victory cannot be achieved without government intervention, and that means, mainly, long sentences for violations and increased allocations for the police and for building jails and prisons. There should be "zero tolerance" for drug usezero tolerance in the schools, the workplace, the government sector, on the highway, in the street, in public, even in the homeanywhere and everywhere intervention is feasible. If private parties can bring this about, so much the better, but the government must be enlisted in this fight because it has the resources, the power, and the influence to exert a major impact. Cultural conservatives believe in the feasibility of a "war on drugs"; Richard Nixon (1969-1974), Ronald Reagan (1981-1989), and George Bush (1989-1993), all conservative presidents, used the term often and were zealous generals in this "war." More specifically, cultural conservatives have a great deal of faith in a principle we encountered much earlier: absolute deterrence. That is they do not believe simply that law enforcement is more likely to "contain" or keep a given activity at a lower level than no enforcement at all. Even further, they believe (or, at least, in their speeches, they state) that law enforcement, if not restrained by loopholes, technicalities, and restrictions, will actually reduce that activity, ideally, nearly to zero. In short, we can win the war on drugs, the cultural conservative asserts, if we have sufficient will, determination, and unity. Cultural conservatives are not particularly interested in calculating cost and benefit to minimize the harms that the current drug policy might inflict, nor in considering the impact of alternate drug policies, since that opens the door to thinking about some forms of legalization. What counts is crushing the monster of drug abuse. This is a kind of holy war, a struggle of good against evil, and winning it represents an end in itself. There can be no compromise with evil. It is simply assumed that harsher penalties translate into less drug use, but it is not especially important if they do not. What counts is being on the right side and being tough and uncompromising against the enemy.
Not all supporters of the present system of drug criminalization are cultural conservatives. Somewhere in between cultural conservatives and progressive prohibitionists (a denizen we'll encounter shortly) lies a position which, I suspect, may encompass a majority of the American population. Their position may be dubbed "meat-and-potatoes" or "garden-variety" criminalization. Its endorsers do not bring the heavy ideological and moral baggage to the drug legalization debate the cultural conservatives bring, but they are not as pragmatic or as "cost-benefit analysis" or "harm-reduction" oriented as the progressive legalizers, either. They are opposed to legalization because it just doesn't sound like a good idea. They are afraid of change, they don't want to seem to encourage the use of the illegal drugs by legalizing them, they think it would send the wrong message to potential users, and they don't think the government has any business dispensing heroin or cocaine. They think that drug violators should be arrestedespecially dealers. They don't think that sending addicts to jail is a great idea, but they don't have a clear idea of what should be done to them. They favor treatment, but are skeptical about its efficacy. In short, they borrow elements of positions that stretch on either side of their own. They do not have a strong or clear-cut view on the question. Still, ultimately, it is their voice that will be listened to most in the debate, since their numbers are so great. On many issues, politicians have a way of listening to the majority, and the drug legalization debate is no exception to this rule.
Both cultural conservatives and free-market libertarians are at the rightor conservativeend of the political spectrum, but they disagree on almost everything pertaining to drug legalization. For one thing, while cultural conservatives believe that there are real differences between legal and illegal drugs, free-market libertarians believe that the legal-illegal distinction is artificial and should be dismantled. Technically, free-market libertarians are opposed to legalization, but for exactly the opposite reason as the cultural conservatives. While the cultural conservatives feel that legalization would represent a dangerous step toward too little government intervention and control, for the free-market libertarian, legalization would result in too much government intervention and control. The libertarian wants a laissez-faire or "handsoff" government policyno government-administered methadone maintenance programs, no government "drugstores" or "supermarkets," no Alcohol Beverage Control package stores, no laws telling citizens what they can and can't do, no medical prescriptions for imaginary neuroses or mental illnesses; in short, no restrictions, controls, legislation, or regulations. No one should be forced to take drugs, and no one should be forced not to take drugs. One major exception, a condition for which a law is necessary, is made for underage users: An adult should not be allowed to sell drugs to a minor. Otherwise, more or less "anything goes." What free-market libertarians want is complete decriminalization, not state-controlled, state-supervised legalization (Friedman and Szasz, 1992; Szasz, 1992).
An important concept here is caveat emptor"let the buyer beware." No seller should be held responsible for selling anything that might be potentially dangerous to any legally competent adult; free-market libertarians take the principle that we are all responsible for our own actions to a far greater extreme than do cultural conservatives. Just as we do not blame the seller of food for the obesity of a customer, we should not blame the "drug habits" of the addict on the drug dealer (Szasz, 1992, p.l2). While falsely listing the contents of what one sells should not be permitted, not disclosing its contents is acceptableeven if it is dangerous and harmfulagain, because the buyer should "beware" of what he or she purchases; and if the contents do harm people, well, after a while, sellers of such products will lose their customers. After all, forcing sellers to disclose the contents of what they sell represents too much government intervention (p.149).
Free-market libertarians argue that freedom from government constraint inevitably produces the greatest good for the greatest number of people. This sounds like a consequentialist or empirical argumentthat is, that government nonintervention is good because it produces positive results. But more closely examined, it becomes clear that this is a moral and ideological argument, that libertarians are in favor of nonintervention as a good in and of itself If, in a specific instance, a particular case of government intervention results in producing a result all would agree is good, the libertarian would nonetheless oppose it because, by its very nature, and as a general principle, government intervention is undesirable. In fact, in the introduction to his book, Our Right to Drugs. The Case for a Free Market (1992), Thomas Szasz, perhaps the most prominent free-market libertarian on the drug issue, states explicitly that his criticism of the war on drugs is not based on pharmacological or therapeutic arguments but on "political-philosophical considerations" (xvi). William Bennett's strong endorsement of 1960s civil rights legislation (1994, p.l0) as laws that have had a positive consequence would be anathema to free-market libertarians, who believe any effort to legislate people's behavior is wrongthe less government, the better is their motto.
Thomas Szasz argues that government taxation is "legalized robbery" (p.7); politicians and other officials are "government parasites with a comfortable living" (p.7); a system of government-controlled medical licensing, he says, results in a "loss of personal freedom," whose results have been "undesirable" (p.7); the system whereby drugs are reviewed by the Food and Drug Administration to determine whether they are safe and effective is "therapeutic slavery" (pp.9-11); support for government funding for medical research is a product of "crowd madness," "dogma," a "pharmacological phobia and pharmacological hubris" (p.69); any effort to control drugs is "chemical socialism (or communism)" (p.96); drug legalizers, he says, are in fact "medicalizers and thus, de facto, paternalistic prohibitionists" (p.99). Once again, government intervention not only does harmit is harm by its very nature. The government has no right to intervene in the lives of its citizens, nor should the government set up controls or regulations that attempt to protect citizens from their own behavior, nor should the government institute programs that are designed to do good of any kind. Left to their own devices, the people will get together and do what's best for themselves. If people make mistakes as a result of exercising their freedom, well, they'll learn from their mistakes. All citizens have the right to do and to purchase anything they wish, so long as this does not harm someone else; it's the government's job to stay out of the people's business, which is exercising our freedoms and maximizing our potential.
Some free-market libertarians would probably fall out with one another over whether there should be any restrictions on drug possession, sale, and use at all. For instance, most would support a law prohibiting an adult from selling or giving psychoactive substances to a minor, while a few would not. Some, such as Thomas Szasz, support the right of the government to prohibit smoking in a public building (1992, pp.161-162) and driving a car or flying an airplane under the influence (p.162), as well as permitting drug testing of employees who work at jobs where the public's safety is a consideration (p.62); some others would not. Still, the central point is that the free-market libertarians regard drugs as a form of property, and they feel that ownership of property is sacred, not to be tampered with by the government in any way. Only under extremely limited circumstances does the government have the right to step in and take away such a basic and fundamental right. Under most circumstances, they believe, where such restrictions are practically nonexistent, the public good will be maximized; where this is harmful to some people, nonetheless, the general principle of nonintervention must be preserved. There are very few instances, many free-market libertarians feel, where this principle is so blatantly violated as with the drug laws. And legalization is not much better, they believe; it simply results in even more state intervention.
To the free-market libertarian, as I said, the ideal solution is complete decriminalization of the currently illegal drugs. Free-market libertarians do not believe that decriminalization will eliminate either drug use or the medical harm that drug use causes. But they do believe that instilling a sense of personal responsibility in citizens for their own actions is more likely to result in their choosing the most reasonable path than if the government forces them to do something against their will or prevents them from doing what they might otherwise choose to do. Such paternalism breeds the very dependency that we (mistakenly) attribute to drugs (Szasz, 1992, p.l49). Our aim should be not a "drug-free America" but an "America free of drug laws" (p.149). In the nineteenth century, there were no legal controls on drugs; in our century, we must "return to a free market in drugs. We need not reinvent the wheel to solve our drug problem. All we need to do is to stop acting like timid children, grow up, and stand on our own two feet" (p.163).
To some degree, all sociologists are constructionists; all of us are interested in how interpretations of reality are constructed, what functions they serve, and how they grow out of broader political and ideological views. However, some sociologists seem to be arguing that facts in the material world count for very little in these social and cultural constructs, that almost any interpretation of reality can be dished up and accepted as true, no matter how much it may run counter to the facts, if it serves the interests of certain privileged segments of the society. I will refer to these observers as radical constructionists. Radical constructionists are not so much in favor of legalization as opposed to the war on drugs. They argue that, objectively speaking, there is no real drug crisis. The government has targeted drugs and drug users because they serve as a convenient scapegoat: Most are poor and powerless; many are members of racial and ethnic minorities; they do not have the resources with which to fight back; they are members of a despised, stigmatized deviant category; and they are inconvenient for the affluent segments of the society. Attention to the phony drug "crisis" serves the function of diverting attention away from the real problems of the dayproblems which either cannot be solved within the existing institutional framework or which, if they were solved, would snatch privileges away from the affluent, the powerful, and the privileged.
Consider the drug "crisis" that gripped American society between 1986 and 1992. In a series of speeches between June and September 1986, President Ronald Reagan called for a "nationwide crusade against drugs." Federal bills were passed in 1986, 1988, and 1992, increasing allocations for fighting the drug war several fold. The number of drug arrests which led to imprisonment, as we saw, shot up by some 10 times during the decade of the 1980s. Media attention to the drug problem increased by 20 times between the early to the late 1980s. Public opinion polls revealed that the proportion of Americans who regarded drug abuse as the "number one problem facing the country today" increased from the 2- to 3-percent range in the early to mid-1980s to 64 percent in September 1989. (After 1989, the percentage declined; it declined again after 1992.) There was no doubt that, in a constructed or subjective sense, there was a drug crisis in the late 1980s, into the early 1990s. Perhaps never before in the country's history had so many Americans felt so such intense concern about drug abuse (Goode, 1993, pp.48-53). Even more important, never before was law enforcement so vigorously involved in incarcerating drug violators.
But radical constructionists argue that this public concern, and the repression that accompanied it, were based on an exaggerated fear, not on any corresponding increase in objective harm caused by drug abuse. In fact, they argue, the use of illegal drugs actually declined in the 1980-1990 period, and by quite a bit (Reinarman and Levine, 1995, pp.l56-165). Why an increase in concern over drugs at the very period when rates of drug use and, presumably, the magnitude of the drug problem, were decreasing? In fact, fear and concern over drugs in the late 1980s turned out to be a "panic," a "scare"not a true crisis at all. Why? Why this exaggerated concern over illegal drug abusea declining problem objectively speaking? Why the sudden rush to imprison drug users, addicts, and dealers at a time when drug abuse posed little threat to American society? Why the intense, biased, hysterical, sensationalistic depiction of illegal drug use in the media?
The scare was generated, radical constructionists feel, for political, bureaucratic, and financial purposes. The rise of the New Right, and its need to protect the interests of the rich and the powerful, was behind the drug scare. Instead of focusing on the real problemspoverty, urban decay, unemployment, an unjust distribution of society's resourcesthese social problems were blamed on a "chemical bogyman," a "scapegoat," an "ideological fig leaf" (Reinarman and Levine, 1995, pp.l69, 170). Poverty is blamed on character flaws in the poor; drug use is also a product of these selfsame character flaws, while, in turn, further contribute to poverty. If structural conditions and disastrous conservative policies were pinpointed as the causes of poverty, the affluent would have to relinquish some of their privileges. Thus, the drug scare of the late 1980s was "concocted by the press, politicians, and moral entrepreneurs to serve other agendas" (Reinarman and Levine,1995, p.l76). It appealed to "racism, bureaucratic self-interest, economics, and mongering by the media." In addition, "the issue of illicit drug use... focuses attention away from structural ills like economic inequality, injustice, and lack of meaningful roles for young people. A crusade against drug use allows conservative politicians to be law-and-order minded; it also permits them to give the appearance of caring about social ills without committing them to do or spend very much to help people" (Levine and Reinarman, 1988, p.255). The social construction of drug abuse as a major social problem in the late 1980s, radical constructionists argue served a political agenda for the powers that be (including the media): to maintain the status quo and to profit from doing it. Notice that the radical constructionists do not deny that drug abuse is a problem for the society. But they do argue that it is a less serious problem than a number of far more damaging conditions, about which very little fuss is madesuch as alcoholism and tobacco addiction. Moreover, they say, the recent war on drugs emerged at a time when the severity of the drug problem was actually declining Hence, it must have served symbolic functions; it was, in fact, a war against the poor.
The radical constructionist sees law enforcement and the media as working hand in hand with one another. In fact, in the war on drugs, the media and the police are allies. Both reinforce the status quo, or existing power and economic arrangements. In fact, in a drug "panic" such as that which erupted in the United States during the period from 1986 to 1990 (or so), lawmakers and law enforcement on the one hand and media attention on the other can be seen as two separate indicators or measures of the same thing: concern about a given problem or condition. In effect, they are both devoted to the same cause: persecuting a scapegoat. Just as police priorities are misplaced in targeting drug violators, media coverage is "cracked" (Reeves and Campbell, 1994), or biased against drug abusers. Law enforcement and the media are two ingredients in the same recipe. The "drug control establishment" and "mainstream journalism" are partners in advancing a hysterical witch-hunt that, during the late 1980s, "helped mask the economic devastation of deindustrialization, aggravated black-white tensions..., and, ultimately, helped solidify middle-class support for policies that favored the rich over the poor" (p.3). Although the heat of the drug "panic" of the late 1980s died down by the early l990s, fundamentally the same processes are continuing today on a more institutionalized and less frenzied basis. And one ingredient in that institutionalization, as we've seen, is more prison sentences, and longer sentences, for drug violators.
Radical constructionists do not see drugs as the enemy. Most argue that drug abuse is the symptom of a problem, not the cause of it. The problem is, of course, the gross inequity in society's resources: poverty, unemployment, urban decay, the powerlessness of the poor and racial minorities, racism, a lack of economic opportunities in the inner citiesall combined with the grotesque affluence of the very rich. Drug selling, at least at the street level, is caused not by a character flaw but by a lack of economic opportunity; drug abuse is not an expression of being weak willed but of hopelessness brought on by urban decay (Bourgois, 1995).
The solution to the drug problem is not legalization by itself, which will do nothing to solve the ills and injustices of poverty or the grossly unfair distribution of society's resources. "As long as economic and racial inequities exist, abuse will continue whether drugs are legal or illegal" (Lusane, 1991, p.216). Hence, a "radical redistribution of wealth" and "fundamental economic reform" must be at the heart of any meaningful response to the drug crisis (p.220). After this, more crucial but less grandiose measures must be taken. And high on any reform agenda should be "establishing new approaches to policing and law enforcement" (p.206). Communities must take back their streets; the police must listen to and be responsive to the needs of the people and must discontinue stereotyping, stigmatizing, and harassing poor, inner-city minorities. Alternatives to prison must be instituted, such as community service; prisons are already overcrowded, and African-Americans are hugely over-represented in the prison population. The "war on drugs" should cease. Law enforcement should stop criminalizing the junkie; drug addiction should be seen as a medical not a criminal matter. Treatment facilities, especially those that involve the community and are drug-free, should be hugely expanded. At the same time, high-level dealers who conspire to poison poor and minority communities should be handed long prison sentences (p.215). In conjunction with these changes, alcohol and tobacco could be restricted in a variety of ways; their sale is profitable to their manufacturers and harmful disproportionately to the poor. Above all, what is needed is empowermenta vastly greater and more effective participation in the political process by the poor, the underrepresented, and members of racial and ethnic minorities. With empowerment will come economic redistribution which, in turn, will bring about a defeat of drug abuse as a major problem in American society.
Unlike the cultural conservatives, progressive legalizers hold a definition of drugs that is based on drugs' psychoactive quality, not on their legality. In fact, legalizers wish to dismantle or at least radically restructure the legal-illegal distinction. Unlike the free-market libertarian, the progressive legalizer does believe in state control of the dispensation of psychoactive substances. Unlike the radical constructionist, the progressive legalizer argues that the drug laws are the problem. Matters of reforming the economy and the political system and redistributing society's resources are important in themselves, but the reform of drug policy, too, is a crucial issue in its own right. Progressive legalizers are more concerned with what to do about drugs than with reformulating the political and economic system generally. They think that there are many things that are seriously wrong with the present system but that the laws prohibiting drugs are one of them; they wish to reform the laws so that there will be less pain and suffering in the world.
How does the progressive formulate or frame the drug legalization issue? What is the nature of the drug problem, and what is the solution? For the most part, progressive legalizers see the drug problem as a human rights issue (Schillinger,1995, p.21) . What they are talking about when they discuss drug reforms "is treating drug addiction as a health problem, like depression or alcoholism, and not as a law enforcement problem" (p.21). Above all, society should "stop demonizing illicit drug users"; "they are citizens and human beings" (Nadelmann and Wenner, 1994, p.25). Criminalizing the possession and use of the currently illegal drugs is unjust, oppressive, and inhumane; it has no moral justification. It represents a kind of witch-hunt, and it penalizes the unfortunate. "Hundreds of thousands of young lives have been ruined by imprisonment for what are essentially victimless crimes" (Nadelmann,1995, p.39). It is the suffering of the drug user that is foremost on the progressive legalizer's mind in demanding a reform of drug policy. Says Ethan Nadelmann, the progressive legalizers' foremost and best-known spokesperson: "Harm reduction means leaving casual drug users alone and treating addicts like they're still human beings" (1995, p.38). "My strongest argument for legalization," he adds, "is a moral one. Enforcement of drug laws makes a mockery of an essential principle of a free societythat those who do no harm to others should not be harmed by others, particularly by the state." Adds Nadelmann, "to me, [this] is the greatest societal cost of our current drug prohibition system (1990, p.46).
A key to the thinking of the progressive legalizers is their belief that drug use is a sphere of behavior that is influenced by much the same rules of human nature as any other activity. They feel that drug users are no more irrational or self-destructive than are participants in such routineand far less legally controlledactivities as skiing, boating, eating, drinking, walking, talking, and so on. There is, in other words, no special or unique power in psychoactive drugs that makes it necessary for the society to erect laws to control and penalize their use (Nadelmann, 1992, p.108). Why do we penalize people who use drugs but harm no one (perhaps not even themselves), and yet leave the stamp-collecting, chess-playing, and television-watching addict untouched? It is a philosophical tenet of progressive legalizers that it is unjust to penalize one activity in which the participant harms no one while, at the same time, other, not significantly safer activities are legally uncontrolled. The assumption that drugs possess uniquely enslaving and uniquely damaging qualities is not only widely held in American society but also is sharply challenged by the progressive legalizer. "No special or uniquely negative qualities" means that there are no extraordinarily compelling reasons why drugs should be singled out to be criminalized or prohibited. Most drug users are every bit as rational as, let's say, chess players; society has no more cause to penalize the former for their pursuits than the latter.
Another point. Progressive legalizers claim to be serious in considering a cost-benefit analysis, but they insist that others who also claim to do so leave out at least one crucial element in this equation: pleasure. Few other perspectives that weigh losses and gains are willing to count the psychoactive effects that users seekand attainwhen they get high as "a positive." But why don't they? Sheer bias, the progressive legalizer would say. Most people take drugs because they enjoy their effects; this must be counted as a benefit to the society. If we are serious about counting positives and negatives, why ignore the most central positive of allthe enjoyment of drug taking? It is what motivates users, and it must be counted as a plus. Clearly, such a consideration would outrage cultural conservatives, who see hedonism and the pursuit of ecstasy as signs of decay and degeneracypart of what's wrong with this country.
The position of progressive legalizers can best be appreciated by a contrast with that of the progressive prohibitionists, a position we'll examine momentarily. Advocates of both positions urge reforms in the drug laws; both are, or claim to be, concerned with harm reduction; both attempt to weigh cost and benefit carefully and empirically in any evaluation of drug policy; and both believe that users of the illegal drugs are treated too harshly and that the legal drugs are too readily available. But the differences between these two positions are as important as their similarities. There are three major and profound dissimilarities between the progressive legalizers and the progressive prohibitionists (Nadelmann, 1992, pp.89-94). First, in their evaluation of cost and benefit, progressive legalizers weigh the moral values of individual liberty, privacy, and tolerance of the addict very heavily (p.91), while the progressive prohibitionists to some degree set these values aside and emphasize concrete, material valuesspecifically public healthmuch more heavily. Second, in considering the impact of legalizationmore specifically, whether it will increase use or notprogressive legalizers are optimists (they believe that use will not increase significantly), while progressive prohibitionists are pessimists (they believe that use will increase, possibly dramatically). Even if use does increase, legalization is likely to result in increased use of less-harmful drugs and decreased use of more-harmful substances, the progressive legalizers say (Nadelmann, 1992, pp.100, 123). And third, legalizers believe that most of the harms from use of the currently illegal drugs stems from criminalization, while the progressive prohibitionists believe that such harms are more a product of use per se than of the criminalization of those drugs. Harm from contaminated drugs, the grip of organized crime, the crime and violence that infects the drug scene, AIDS, medical maladies from addictionall are secondary, not primary effects of drugs. And all will decline or disappear under legalization. Progressive prohibitionists are skeptical.
Progressive legalizers have not spent a great deal of time or space spelling out what their particular form of legalization would look like. (Mitchell, 1990, represents one exception.) Still, they do not mean by legalization what free-market libertarians mean by decriminalization, nor, indeed, what their critics mean by legalization. "When we talk about legalization, we don't mean selling crack in candy stores," says Nadelmann (Schillinger, 1995, p.21). Unlike free-market libertarians, most legalizers realize that selling drugs in a kind of "supermarket," where any and all psychoactive substances would be as readily available as heads of lettuce and cans of soup, is not feasible for the foreseeable future. Many point to harm reduction strategies that seem to have worked in the Netherlands, Switzerland, and Liverpool. All support steps in that direction: Legalize or decriminalize marijuana, increase methadone maintenance programs, reschedule many Schedule I drugs (such as LSD, ecstasy, and heroin) that may have therapeutic utility, stop arresting addicts, get them into treatment programs, and so on. However, all see these as only stopgap or transitional steps. If not the supermarket model, then what would full legalization look like? One progressive legalizer suggests that the mail-order model might work: Sell drugs in limited quantities through the mail (Nadelmann, 1992, pp.111-113). While not the ideal solution, it is the best compromise "between individual rights and communitarian interests" (p.124). It must be noted that, while all progressive legalizers emphasize the unanticipated consequences of prohibition, they do not spend much time or space considering the possible unanticipated consequences that legalization might have.
Progressive prohibitionists (Currie, 1993; Kaplan, 1983, 1988; Kleiman, 1992b; Zimring and Hawkins, 1992) urge many of the same reforms that progressive legalizers argue forneedle exchange, condom distribution, an expansion of methadone maintenance, no incarceration of the addict, rescheduling of many Schedule I drugs, legalization or decriminalization of marijuana, stiffer taxes and more controls on alcohol and tobacco, and so on. (In fact, there are far more similarities between progressive prohibitionists and progressive legalizers than there are between the former and "hard-line" criminalizers, on the one hand, and between the latter and "radical" or "extreme" free-market libertarians, on the other). The progressive prohibitionists draw the line, however, at the legal, over-the-counter or even mail-order sale of drugs such as heroin, cocaine, and amphetamine.
Progressive prohibitionists are not as distressed by the moral incongruity of criminalizing the possession and sale of powerful psychoactive agents and legally tolerating substances or activities that also cause harm. Once again, to demarcate their position from that of the legalizers, they say, to some degree, there is a special and unique quality in certain drugs that compels some users of them to become abusers. This is not a majority of the society, they say, but a sufficiently sizable minority to warrant concern for the public health of the collective as a whole. In fact, to step back and look at their political, ideological, and moral position more generally, progressive prohibitionists are far more communitarian than individualistic. While the touchstone of the progressive legalizer is the rights of the individual, for the progressive prohibitionist, the guiding principle is the health of the community. The individual, they would say, does not have the right to harm the society; certain rights have to be curbed for the good of the society as a whole. If injured, the individual has to be cared for by the community; foolish acts engaged in by the individual are purchased at the price of a very substantial cost to the rest of us (Goldstein and Kalant, 1990). The individual does not have the legal right to ignore the seat-belt laws, the helmet laws, or rules and regulations against permitting him or her to be placed in extreme dangeror any other laws, rules, or regulations that attempt to protect individuals from harming themselves. Any humane society must balance freedom against harm, and in this equation, quite often, certain freedoms must be curtailed. In short, compared with progressive legalizers, progressive prohibitionists "are far more willing to limit individual liberty to the extent that they perceive a potential gain in public health" (Nadelmann, 1992, p.91). For instance, coercing addicts and drug abusers into drug rehabilitation programs by arresting them and giving them a choice between imprisonment and treatment is not a moral problem for the progressive prohibitionist, whereas for the progressive legalizer, it is.
It is almost in the very nature of the progressive prohibitionist's argument that there is an assumption of greater use under any possible legalization plan. (Marijuana may very well represent an exception.) This position sees the American populationor a segment of it, at any rateas being vulnerable to the temptation of harmful psychoactive drugs. They are pessimists when it comes to contemplating the extent of use under legalization. They do not necessarily see the dire and catastrophic "worst-case" scenario predicted by the cultural conservativestens of millions of new cocaine and heroin addicts and abusers. But many progressive prohibitionists see a doubling, a tripling, or a quadrupling of hard-drug abuse in the United States as an entirely possible outcome of many of the currently proposed legalization schemes. And they find that unacceptable. Most Americans will resist the temptations and blandishments of these seductive, dependency-producing substances. But focusing on the potential behavior of "most" Americans is a distraction and an irrelevancy. What counts is whether the small minority who use drugs destructively is likely to grow. Most distressing to progressive prohibitionists: The volume of drug abuse of current addicts and abusers is likely to increase and, along with it, the harm that flows from drug abuse.
And last, the progressive prohibitionist sees more direct harm from use of the hard drugssuch as cocaine, amphetamine, and herointhan the progressive legalizer sees. There are, it is true, they say, some secondary harms and complications caused mainly by the legal status of these drugs; certainly HIV/AIDS ranks high among them. But most of these secondary or indirect harms can be attacked through modifications of the current system that fall far short of outright legalization. Certainly needle exchange and condom distribution programs would go a long way in combating the problem of HIV contamination. The fact is, cocaine and heroin are a great deal more harmful than the legalizers claim, say the prohibitionists. Harm has been kept low by the very fact of the drug laws, because far fewer people use currently than would be the case under legalization. Alcohol and tobacco kill many Americans in part because their use is intrinsically harmful (at least, given the way we use them) and in part because they are widely used. Cocaine and heroinconsidering the many possible drugs that can be harmfulare also intrinsically harmful drugs. (Although they are harmful in very different ways.) And they are taken, recklessly, by segments of the population who are far more likely to take extreme risks with their health than the rest of us. If these drugs were to be used as widely and as commonly as alcohol and tobacco are used today, many, many users would die as a result. It is foolish and unrealistic, the progressive legalizer says, to imagine that these drugs are harmful today entirely or mainly because they are illegal. While the progressive legalizer stresses the secondary harms and dangers of the illegal drugs, the progressive prohibitionist stresses their primary harms and dangers.
Again, while the more-progressive prohibitionists and the more moderate legalizers share many items in their drug policy agenda, they differ on these three major issues: how much they stress individual liberty versus public health; their prediction of whether drug abuse, and its attendant harms, will increase significantly under legalization; and their notion of whether the currently illegal drugs are more intrinsically or more directly harmful or are harmful indirectly, that is, mainly because they are illegal (Nadelmann, 1992, pp.89-94). Ironically, although the progressive legalizers and the progressive prohibitionists stand on opposite sides of the great legalization divide, they share more particulars of their drug policy proposals than any two major positions in this debate. If major changes in drug policy do take place in the next century, they are likely to be drawn from the substantial overlap in these two positions.
Clearly, then, the various approaches to drug legalization fit more or less comfortably into, and have relevance and resonance for, quite distinct political views or orientations. Drug legalization may be said to be a specific instance of, or a specific issue for, a more general political, ideological, and moral position. The issue is thought about in terms of a broader image or worldview expressing how things ought to be. In this sense, then, it is misleading to think about the debate strictly in pragmatic or empirical terms. In many ways, it is an ideological debate about which political perspective will dominate policy on drugs in the years to come.
For the cultural conservative, the relationship between general ideology and morality on the one hand and the question of drug control on the other hand is extremely close. To legalize drugs is to surrender to the very forces corrupting the society today. Drugs (that is, illegal drugs) must be fought, just as abortion, pornography, and crime must be fought, and one weapon in this fight is law enforcement. Legalization is a "cop-out," a surrender to the forces of evil. By itself, it legitimates and endorses drug abuse, and it is also highly likely to produce higher rates of drug abuse. Drug legalization must be fought at every turn.
For the free-market libertarian, the issue of drug legalization represents a stage on which broader ideological issues are enacted. Legalization is unacceptable because it represents too much government meddling; on the other hand, a policy of government laissez-faire, "hands-off," or more or less complete decriminalization is the answer. Everyone has the right to acquire, own, and use chemical substances because they represent a form of property; the government does not have the power to take that right away from its citizens. Leave the people alone to choose as they wish, and they'll usually be wise in their choice. Even if they are unwise, well, that's their choice.
For the radical constructionist, public, media, and law enforcement concern over drug abuse is a smoke screen. It is a "fig leaf" with which the powers that be attempt to hide the patent inability or unwillingness to solve society's most serious problems. By itself, legalization is not the solution to the drug problem, but more humane and more democratic solutions must be found to drug abuse other than law enforcement, which only exacerbates the problem. If society's resources were more equitably distributed, and the poor and the powerless were more adequately empowered, American society would not face the drug problem that now ravages our communities.
For the progressive legalizer, the drug user's human rights are paramount. It is unjust to penalize participants in a specific activity that does not harm others. Drug use, progressive legalizers argue, is not markedly different from a wide range of other activities in this respect. Any consideration of cost and benefit to determine whether the currently illicit drugs should be legalized must consider the human rights factor. Legalization will maximize the drug user's rights, and, at the same time, minimize the addict's suffering; in addition, it will not place the rest of the society in peril. In fact, in many wayssuch as a reduction in drug-related crime and violence, the withering away of organized crime, and the sharp reduction of drug-related medical maladiesnonusers will experience little but benefits from legalization.
For the progressive prohibitionist, the main issue is public health, not the constitutional rights of drug users. Human rights are not without limits, and regulations may be used to control harms that participants inflict upon themselves, even if they do not harm others. The fact isand this is central to the progressive prohibitionist's positionit is almost certain that the abusive use of the hard drugs will rise under practically any conceivable legalization scheme and, along with it, harm to the society as a whole. To a significant degree, drug use is somewhat different from many activities which the society does not attempt to control, like stamp collecting and playing chess. While a variety of reforms ought to accompany continued criminalization of the hard drugsincluding far less reliance on arresting and imprisoning the user, addict, and petty dealer, and, for many progressive prohibitionists, the partial decriminalization of marijuanathe legalization of the hard drugs is a very high risk option; it is likely to do a great deal more harm to the society than good.
Chapter 6. Legalization and Decriminalization: An Overview