The Fixers


Searching for Alternatives: Drug-Control Policy in the United States, edited by Melvyn B. Krauss and Edward Lazear, Stanford, Calif.: Hoover Institution Press, 454 pages, $42.95

Drug Prohibition and the Conscience of Nations, edited by Arnold S. Trebach and Ken B. Zeese, Washington, D.C.: Drug Policy Foundation, 250 pages, $9.95 paper

Winning the Drug War: New Challenges for the 1990s, edited by Jeffrey A. Eisenach, Washington, D.C.: The Heritage Foundation, 119 pages, $10.00 paper

The Case for Legalizing Drugs, by Richard Lawrence Miller, New York: Praeger, 247 pages, $21.95

The Drug Solution, by Chester Nelson Mitchell, Ottawa: Carleton University Press, 362 pages, $21.95 paper

The Drug Legalization Debate, edited by James A. Inciardi, Newbury Park, Calif.: Sage Publications, 230 pages, $16.95 paper

The Truth About Addiction and Recovery, by Stanton Peele and Archie Brodsky, with Mary Arnold, New York: Simon & Schuster, 430 pages, $22.95

The Crisis in Drug Prohibition, edited by David Boaz, Washington, D.C.: Cato Institute, 148 pages, $8.00 paper

When Milton Friedman and William Bennett traded letters in the Wall Street Journal two years ago, each was ostensibly trying to convince the other that he was wrong about the war on drugs. Of course, no one expected Bennett to say, "You're right, Milton. I've been a fool. Let's legalize drugs." Nor did anyone expect Friedman to come around to the prohibitionist position. Indeed, it would have been startling if the exchange had resulted in any change of opinion on either side.

That's because Friedman and Bennett hold fundamentally different views about human nature and the proper role of government. Like criminologist James Q. Wilson, Bennett argues that government has a duty to help individuals realize their full potential, a goal that is obstructed (he claims) by the use of certain drugs. Friedman believes that the war on drugs is unjust, that it violates people's rights.

Many people find this sort of impasse frustrating. Berkeley law professor Franklin E. Zimring and criminologist Gordon Hawkins explain why in Searching for Alternatives, a provocative collection of papers from the Hoover Institution's 1990 drug-policy conference: "Both sides of the decriminalization debate…support their preferred policies for a mixture of moral and prudential reasons, making their proposals impossible to assess objectively and virtually incontestable. If the operative costs of either policy seem too steep, its proponents can always retreat to the moral high ground. At that level the claim that 'adult Americans have the right to choose what substances they will consume and what risks they will take'…is countered by the claim 'that society has [an] obligation to form and sustain the character of its citizenry.'…Nothing could count decisively against either claim."

Zimring and Hawkins thus classify the arguments for and against legalization under two headings: moral and prudential, or, as others have put it, principled and pragmatic. This is a standard distinction; it's convenient and superficially plausible. But it's fundamentally false. The prudential or pragmatic argument is ultimately a moral argument, based on the principle of utility. Zimring and Hawkins suggest that, rather than fight a pointless battle of moral assertions, reformers should engage in research to resolve empirical questions that are relevant to drug policy. But such research can be decisive only if one accepts the underlying premise: We should legalize (or decriminalize) drugs if and only if the measurable benefits of doing so outweigh the costs.

Reformers do not bother to argue for this premise, because they don't have to. Although some people will never be swayed by a cost-benefit analysis, most implicitly subscribe to a crude utilitarianism. This is why Friedman maintains that we need not argue about rights and justice in order to achieve reform. "We all recognize that drugs are currently doing a great deal of harm," he said at the Hoover conference. "What divides us is our judgment about the best means to minimize the harm done by drugs."

Chicago-Kent law professor Randy Barnett, on the other hand, argues in the 1987 book Dealing with Drugs that the case for legalization should be based on principles of justice. Indeed, he offers a utilitarian rationale for relying on "a system of properly crafted individual rights" instead of "a system of ad hoc public-policy determinations": "A proper rights analysis would render most legal cost-benefit calculations superfluous and would avoid tragically wasteful (and often irreversible) social experimentation," he writes. "An addiction to drug laws is caused by an inadequate understanding of individual rights and the vital role such rights play in deciding matters of legality."

Pace Zimring and Hawkins, the Friedman and Barnett approaches can be integrated—and in a way that should satisfy both utilitarians and natural-rights advocates. The argument, which Barnett suggests, is that prohibition is costly precisely because it violates people's rights. The main problems with the war on drugs are problems inherent in any attempt to ban noncoercive, victimless behavior that many people wish to engage in. This reconciliation of pragmatism and principle is promising, not because it avoids moral argument to focus exclusively on empirical questions, but because it builds on the moral beliefs that most people seem to hold.

For reformers, then, the first priority has to be drug education—real drug education. Contradicting the pernicious nonsense spouted by many supporters of prohibition gets people's attention, and it makes them think. Very few people would seriously consider legalization if they believed the portrayal of drug use offered by George Bush and William Bennett.

In this connection, the Washington, D.C.–based Drug Policy Foundation is doing admirable work. In Drug Prohibition and the Conscience of Nations, editors Arnold S. Trebach and Kevin B. Zeese reprint Bush's baggie-of-crack speech, excerpts from Bennett's first National Drug Control Strategy, and other alarmist accounts of "the drug problem," along with corrective material. Thanks to such efforts, the more-reckless drug warriors may one day see an advantage to telling the truth.

That day has clearly not arrived, since even scholarly books on drug policy include obvious inaccuracies. In Searching for Alternatives, for example, former Attorney General Edwin Meese cites "the birth of over 100,000 cocaine-damaged babies each year." Elsewhere in the same volume, Hoover economist Joel Hay reports: "The U.S. Department of Health and Human Services estimated that 100,000 babies exposed to cocaine are born each year in the United States." (Emphasis added.) Even Hay, who argues against legalization, does not claim that all babies exposed to cocaine are damaged by it—only that, as a group, they are more likely to suffer from low birth weight and other problems.

But Meese's error is minor compared to the misinformation offered by Dr. Robert L. DuPont in the Heritage Foundation's Winning the Drug War. "The most recent estimate is that last year we had 375,000 crack babies born in the United States," he declares. This figure has been picked up by many journalists, including columnists A.M. Rosenthal and Jack Anderson. But as Dale Gieringer notes in Drug Prohibition and the Conscience of Nations, the statistic does not survive even a superficial analysis, since the National Institute on Drug Abuse reports that the number of women who used crack in 1988 was only 474,000.

It turns out that DuPont's alarming crack-baby factoid is a distortion of results from a 1988 study by Dr. Ira Chasnoff, director of the National Association for Perinatal Addiction Research and Education. Based on a nonrepresentative sample of hospitals, Chasnoff estimated that 375,000 babies were exposed to an illicit drug that year. "Illicit drug" does not mean crack, and, again, exposure does not mean damage. According to HHS estimates, more than two-thirds of crack-exposed babies show no obvious problems at birth. Chasnoff suggests there may be more-subtle, long-term effects, but this claim is controversial.

As innocent victims, crack babies arouse much emotion. But since they first registered in the national consciousness fairly recently, misinformation about them is relatively easy to correct. By contrast, propaganda about the effects of drugs on users has had more time to sink in. What reformers tend to dismiss as mere rhetoric, most people accept as conventional wisdom. Meese, for example, asserts that while "alcohol can be used responsibly…and only a small percentage of those who drink liquor become intoxicated…the purpose of using illegal drugs is to 'get high' and the inevitable intoxicating effect of such drugs provides the essential difference from alcohol."

Those who have had no experience with illicit drugs and have read next to nothing about them may nod in agreement, but anyone else can only be puzzled by this distinction. Meese appears to be saying that the inherent qualities of illicit drugs make it impossible or very difficult to consume them in moderation—that you can't, say, smoke pot to relax or drink coca tea as a pick-me-up. This is clearly not true. Still, as psychiatrist Norman Zinberg has suggested, the very act of making a drug illegal, by impeding social control, lending symbolic significance to the substance, and creating incentives for higher potency, increases the likelihood that the drug will be used to excess.

Meese also claims that "illicit drugs…do not have a history of responsible use." Yet for centuries South American peasants have chewed coca leaf, and American Indians have eaten peyote; for thousands of years, marijuana has been used throughout Asia and the Middle East for medicinal, ritual, and recreational purposes. Millions of Americans used cocaine, cannabis, and opiates responsibly for decades prior to their prohibition, and the government's own figures indicate that the vast majority of citizens who currently use illegal drugs do so moderately.

Critics of prohibition are often reluctant to talk about responsible use of illicit drugs. They argue, correctly, that it's important to distinguish between advocating a right to use drugs and advocating drug use itself. But silence on the topic of responsible use is dangerous. For one thing, it leaves unchallenged the notion that those who do or might use currently illicit substances shouId be disqualified from the policy debate. "Drug users, even occasional marijuana smokers, have a personal bias built into their analysis of drug policy," writes former prosecutor Robert Peterson in Searching for Alternatives. "Although policy analysis is alluded to, rational review is not likely to have an impact over the strong emotional and chemical attachments that bind users to psychoactive drugs."

The idea that arguments and evidence cannot be evaluated on their merits, without reference to the motives of those who present them, is especially pernicious in the drug-policy debate. The people whom Peterson proposes to exclude are reluctant to come forward because of the social stigma and legal sanction attached to the use of illicit drugs. But their experiences provide some of the most compelling evidence that legalization would not lead to an explosion of drug abuse and addiction. Until the great, silent majority of illicit drug users speaks up, most people will continue to view them as alien and antisocial.

The distinction between use and abuse is crucial to the argument for legalization. It's pretty clear that use of the currently illicit drugs would rise significantly if they were more readily available at lower prices. But, as Boston University economist Jeffrey A. Miron notes in Searching for Alternatives, "increases in consumption are not a cost per se; in fact, increases in consumption are a benefit. There is only a cost associated with increases in consumption to the extent that consumption of drugs produces significant externalities"—that is, costs imposed on others.

Furthermore, a sizable increase in drug use following a decrease in price means that people are shifting their money from other expenditures. The question of whether a rise in use of certain drugs will mean a net increase in harm to third parties—through drug-related accidents or fetal damage, for example—depends on what people were spending their money on before the price change. "If, for instance, illegal drugs and alcohol are substitutes," notes Stanford economist Victor Fuchs, "the implications for public policy are different than if the substitution is between illegal drugs and bran muffins."

Meese would say such comparisons are meaningless, because of the inherent differences between legal and illegal drugs. Both Richard Lawrence Miller, in The Case for Legalizing Drugs, and Chester Nelson Mitchell, in The Drug Solution, show that these differences are figments of Meese's imagination. Addressing a point that is too often ignored by advocates of legalization, Mitchell also attacks the medical monopoly on prescription drugs. He may go a bit overboard in stressing the essential similarity of all psychoactive substances—he's a little too hard on aspirin, for example—but his general point is well taken: The distinctions enshrined in the drug laws do not correspond to pharmacological reality.

Consider MDMA, a.k.a. "Ecstacy." In The Drug Legalization Debate, Marsha Rosenbaum and Rick Doblin describe how the Drug Enforcement Administration decided to ban MDMA in 1985 after it became clear that some people were having fun using it, despite testimony about the psychotherapeutic uses of the drug, which promotes empathy, communication, self-insight, and recovery of repressed memories. Although there was little evidence of negative reactions to MDMA, the recreational reputation of the drug, together with its unfortunate (and inapt) nickname, doomed it to Schedule I classification, reserved for dangerous drugs with a high potential for abuse and no accepted medical value.

The sheer irrationality of the classification scheme supervised by the DEA is nowhere more apparent than in the agency's classification of marijuana as a Schedule I drug. Drug Prohibition and the Conscience of Nations reprints excerpts from testimony on the medical uses of marijuana—among them, the treatment of glaucoma, muscle spasms, and the nausea and vomiting associated with AIDS and cancer therapies. There are moving affidavits from parents, including Harvard psychiatrist Lester Grinspoon, whose children used marijuana to alleviate the side effects of chemotherapy. Polls find that a majority of the general public sympathizes with such patients and supports the medical use of marijuana. A recent survey indicates that most oncologists think it should be legal to prescribe the drug.

In 1988 the DEA's chief administrative law judge, Francis Young, recommended the rescheduling of marijuana, which he called "one of the safest therapeutically active substances known to man." (Indeed, marijuana's relative safety and versatility probably count against the drug in the DEA's view, since these qualities have made it the most popular illegal drug.) Young said the DEA classification of marijuana was "unreasonable, arbitrary, and capricious." In a statement that is remarkable for its callousness, then-DEA Administrator John Lawn rejected Young's finding. He accused the National Organization for the Reform of Marijuana Laws and the Alliance for Cannabis Therapeutics of perpetrating "a dangerous and cruel hoax on the American public." No wonder Lawn was angry—that's the DEA's job.

Not all supporters of prohibition are as irrational and dishonest as the DEA. In Searching for Alternatives, for example, Harvard public-policy lecturer Mark Kleiman seems to acknowledge that most people use drugs responsibly most of the time. Furthermore, "we should not assume that molecules come into the world legal or illegal." Still, he says, a sizable minority of people will abuse any psychoactive drug, hurting themselves and others in the process. By making more drugs more readily available at lower prices, legalization is likely to increase drug abuse and the costs associated with it.

Kleiman argues that we cannot rely on tort law, the criminal-justice system, and family courts to control drug-related behavior that violates people's rights, because "those systems are very costly, very inefficient, and have limited capacity." In any case, Kleiman is also concerned about self-harm, partly because some drug abusers will become a drain on the welfare system, but also because "drugs fool individual decision- making mechanisms" so that people are no longer "good stewards of their own welfare."

This is probably the strongest case that can be made for prohibition. It will not convince libertarians, especially since Kleiman starts with the generous premise that "the only proper role of government is to help individuals achieve their own welfare as they perceive it."' But it appeals to the utilitarian instincts that most people bring to the drug-policy debate. So it's important to consider how each element of Kleiman's argument can be challenged.

First, in light of substitution effects, legalization need not increase drug-related externalities. Second, Kleiman merely asserts that the courts are incapable of handling the problem. Is this true? Are there ways of making the courts more efficient? It seems unlikely that a legal system that cannot deal with the minority of drug users who violate other people's rights would have more success controlling all drug users. Third, even if we assume that government welfare programs must exist, Kleiman would have to explain why the possibility of demands on the public purse justifies state control of drug taking but not of other risky behavior, such as sky diving, mountain climbing, and eating fatty foods.

The final point, that people simply cannot be trusted to judge what is best for them when it comes to drugs, is tied to the mystification of addiction—what U.S. District Judge Robert Sweet calls the "devil-drug concept." The pervasive belief in the overwhelming power of drugs is further reinforced by the disease metaphor. "Treatment specialists believe that addiction is not a respecter of race, religion, or social status and that anyone can fall prey to this disease and the resultant degradations," writes Peterson, who compares taking drugs to playing Russian roulette. It's not just the drug warriors who talk about addiction as a disease. In Drug Prohibition and the Conscience of Nations, Baltimore Mayor Kurt Schmoke, who helped launch the latest round of legalization debate, calls for the "medicalization" of drug policy, based on the recognition that "drug abuse is a disease."

The problem is, it's not. Psychologist Stanton Peele, who has studied addiction for decades, has long argued that the medical model is inappropriate. In The Truth About Addiction and Recovery, he and co-authors Archie Brodsky and Mary Arnold extend this thesis, marshaling evidence to show that addiction is not a disease in any meaningful sense. Rather, "an addiction is a habitual response and a source of gratification or security.…When a person becomes addicted, it is not to a chemical but to an experience. Anything that a person finds sufficiently consuming and that seems to remedy deficiencies in the person's life can serve as an addiction. The addictive potential of a substance or other involvement lies primarily in the meaning it has for a person."

The authors demolish the notion, paraphrased by Peterson, that addiction is "an equal-opportunity destroyer." The research on addiction makes it clear that "if you have better things to do and value other things more than escape into intoxication, then you won't make intoxication the center of your life." Addiction is most likely in "situations in which people are deprived of family and the usual community supports; where they are denied rewarding or constructive activities; where they are afraid, uncomfortable, and under stress; and where they are out of control of their lives."

Peele et al. argue that viewing addiction as an incurable disease is not merely wrong, it's harmful—especially to addicts. It reinforces the notion that addicts are helpless and will always be incapable of responsible drug use, while the truth is that most drug abusers cut back or stop on their own. The disease theory rules out the possibility of change without expert medical treatment.

While it promises a more humane approach to drug abuse, medicalization would simply transfer control from the police to the drug-treatment establishment. It would enhance the coercive powers of doctors and "treatment specialists," giving them the authority to determine who should receive drugs, who is addicted, and who needs help (whether they want it or not). A disturbing article in Drug Prohibition and the Conscience of Nations, describing how the "treatment" organization Straight Inc. handles young drug users, offers a preview of what such a world might be like. Medicalization might offer a kinder, gentler form of oppression, but it would still be oppression.

Critics of prohibition need to guard against the temptation to merely tinker with the drug laws. The thrust of the Hoover conference was that we have to find some "middle ground" between the status quo and legalization. Over the short term, the portrayal of legalizers as extremists may actually help, since it makes supporters of the drug war also look like extremists. And it's certainly true, as Kevin Zeese argues, that "harm reduction" can achieve marginal improvements—for example, by making hypodermic needles available without prescription, reducing the penalties for marijuana possession, and approving medical use of illegal drugs. But making things a little better should not be the ultimate aim.

Unfortunately, many reformers share the conceit of the drug warriors—that they know the "true" costs and benefits of drug use. They seem to believe that the "right" distribution of consumption among drugs can be scientifically determined and bureaucratically arranged through taxation, regulation, and rationing. An extreme example of this approach can be found in The Drug Legalization Debate, where journalist Richard B. Karel lays out a detailed plan for restricting the type, dosage, form, route, and frequency of drug consumption through devices such as electronic ration cards and officially approved coca chewing gum.

Even after suggesting that people have a right to control what goes into their bodies, most reformers fall into the tinkering trap. In The Drug Solution, Mitchell does a good job of explaining why it's unjust to punish all users of illegal drugs for the crimes of a minority. Then he ends up recommending an ideal balance of taxes and regulations that would take into account the costs and benefits of each drug. He says the taxes are necessary to cover externalities. But this is the same injustice he has condemned in connection with the war on drugs. If it's wrong to imprison a person for someone else's misbehavior, it's wrong to fine (or tax) him as well.

To urge consistency in such matters is not to say that libertarians cannot or should not make common cause with other critics of prohibition. But in doing so, we should not forget our principles. James Ostrowski, president of Citizens Against Prohibition, struck many at the Hoover conference as strident, but what he said went to the heart of the debate: "If we lack the moral and intellectual abilities to run our own lives, how can we possess the seemingly greater intellectual and moral abilities needed to run other people's lives? That is the great dilemma facing all paternalistic political theories."

Jacob Sullum is assistant editor of REASON.