Between Politics and Reason
Chapter 11. Summary and Conclusions
Erich Goode — State University of New York, Stony Brook
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 violators—perpetrators 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 distribution—an outrageous logistical impossibility—this
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 trade—can'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 that—while drug use, addiction, and abuse intensify
the crime rate—drugs 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 overdoses—the 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 safer—or more dangerous—on
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.