Between Politics and Reason
Chapter 5. Strange Bedfellows: Ideology, Politics,
and the Drug Legalization Debate
Erich Goode — State University of New York, Stony Brook
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
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-control—all 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 alcohol—although 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 quo—that 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 plainly—drug 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 exceptions—where 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 ally—and that tobacco kills as a result of the "deliberate"
actions of smokers—underscores 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 use—zero tolerance in the schools, the workplace, the
government sector, on the highway, in the street, in public, even
in the home—anywhere 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 arrested—especially
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.
FREE-MARKET LIBERTARIANS
Both cultural conservatives and free-market libertarians are at
the right—or conservative—end 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 policy—no
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
acceptable—even if it is dangerous and harmful—again, 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 argument—that
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 wrong—the 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 harm—it 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).
RADICAL CONSTRUCTIONISTS
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 day—problems 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 abuse—a 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 problems—poverty,
urban decay, unemployment, an unjust distribution of society's
resources—these 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 made—such 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 cities—all 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 empowerment—a
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.
PROGRESSIVE LEGALIZERS
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 society—that 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 routine—and far less legally controlled—activities
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
seek—and attain—when 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 all—the 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 degeneracy—part
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
values—specifically public health—much more heavily. Second,
in considering the impact of legalization—more specifically,
whether it will increase use or not—progressive 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 addiction—all 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
Progressive prohibitionists (Currie, 1993; Kaplan, 1983, 1988;
Kleiman, 1992b; Zimring and Hawkins, 1992) urge many of the same
reforms that progressive legalizers argue for—needle 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 danger—or
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 population—or
a segment of it, at any rate—as 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 conservatives—tens 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 drugs—such as cocaine, amphetamine, and
heroin—than 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 heroin—considering the many possible
drugs that can be harmful—are 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.
SUMMARY
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 ways—such as a reduction
in drug-related crime and violence, the withering away of organized
crime, and the sharp reduction of drug-related medical maladies—nonusers
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 is—and this is central to the progressive
prohibitionist's position—it 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 drugs—including
far less reliance on arresting and imprisoning the user, addict,
and petty dealer, and, for many progressive prohibitionists, the
partial decriminalization of marijuana—the 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.