The Argument That 'America Has Gone Too Far in Legalizing Vice' Ignores the Cost of Prohibition

Is it just to punish the many for the excesses of the few?

In a recent Atlantic essay, physician Matthew Loftus argues that "America has gone too far in legalizing vice." Because people do not always make rational decisions and sometimes develop self-destructive habits, Loftus argues, the government should make it harder, not easier, to engage in pleasurable activities such as gambling and cannabis consumption. "Just as highways have guardrails for the moments when a driver isn't exercising perfect self-control," he writes, "so we also need guardrails to help people from driving off cliffs of vice."

To his credit, Loftus does not draw arbitrary distinctions between potentially harmful habits based on their current legal status. He argues that alcohol prohibition was successful in reducing the harm caused by excessive drinking, for example, and seems to understand that any pleasure-providing or stress-relieving activity can be the focus of an addiction—a point that psychologists such as Stanton Peele and Jeffrey Schaler have been making for many years.

But Loftus exaggerates how often that happens, obscuring the implication that the government should impose restrictions on everyone based on the mistakes of a minority. He cherry-picks data to support his argument that liberalization of marijuana policies has been harmful. And while he emphasizes human fallibility as it relates to "vice" itself, he ignores its perils in formulating laws and regulations aimed at curtailing "vice."

The term that Loftus uses to describe things that people enjoy is telling. The "vice" label implies that even occasional or moderate gambling, drinking, or cannabis consumption is morally suspect and provides no value that is worth considering. That is convenient for the argument in favor of paternalistic policies like the ones that Loftus supports. But it ignores the reality that people who engage in such activities typically do not develop life-disrupting habits they ultimately regret. By and large, these activities are life-enhancing rather than life-disrupting.

Loftus implies otherwise. "Our hearts and minds are shaped not only by reason but also by our experiences, affections, and, most important, our habits, which are just as often inexplicably self-destructive as they are reasonable," he writes.

That is an empirical claim, implying that roughly half of the people who gamble, drink, or use marijuana develop "self-destructive" habits. The evidence does not support that claim.

According to the National Council on Problem Gambling (NCPG), about 60 percent of American adults gamble each year. By comparison, about 1 percent of American adults "are estimated to meet the criteria for severe gambling problems in a given year." That amounts to roughly 2 million people, which is not a trivial problem. But if less than 2 percent of gamblers meet those criteria in a given year, it is clearly not a very common problem.

The NCPG, which was founded in 1972, organizes what it describes as "the world's oldest and largest problem gambling-specific conference." Loftus notes that the organization receives donations from the gambling industry, but he does not question its statistics. He does object to its statement that "the cause of a gambling problem is the individual's inability to control the gambling." He thinks that take misleadingly focuses on individual responsibility instead of the ways the industry lures and profits from problem gamblers.

Loftus complains, for example, that "electronic slot machines are designed to get players addicted" and that "sports-betting companies have enticed colleges and universities to allow them to promote their products on campus, then offered free bets to lure customers in." But if only a small percentage of gamblers have "severe gambling problems," the inherent addictiveness of that activity is plainly not an adequate explanation for those problems. As with other addictions, the explanation has to encompass individual tastes, preferences, and circumstances. The problem lies not in the activity itself but in the gambler's relationship with it.

Likewise with drinking. According to survey data cited by the National Institute on Alcohol Abuse and Alcoholism, 70 percent of American adults consumed alcohol in 2019, while less than 6 percent met the criteria for "alcohol use disorder." That 8 percent rate is considerably higher than the incidence of problem gambling among gamblers but still falls far short of the 50 percent rate that Loftus implies.

The numbers for cannabis are similar. According to the same survey, about 17 percent of Americans 18 or older used marijuana in 2019, while 1.7 percent met the criteria for a "substance use disorder" involving marijuana.

These numbers are obviously relevant in assessing Loftus' claim that choices regarding gambling, alcohol, and marijuana "are just as often inexplicably self-destructive as they are reasonable." They are also relevant in assessing the costs and benefits of the "judicious restrictions" he favors, which include limiting gambling to casinos and allowing marijuana use only for medical purposes. The distribution of those costs and benefits also matters, since these policies impose burdens on all gamblers and marijuana users in the name of protecting the small minority whose excessive behavior causes serious problems.

Those burdens include the threat of arrest and prosecution as well as all of the hazards created by the resulting black markets. When Loftus tries to show that lifting those burdens is nevertheless a mistake, he makes highly misleading use of the available evidence.

Loftus claims, for example, that "the best evidence" indicates that "more teenagers use marijuana when it is legalized in their state." He links to a a 2020 BMC Public Health study that actually looked at past-month marijuana use among 12-to-25-year-olds, not just "teenagers." It does not show what he claims.

Based on nationwide survey data from 1979 through 2016, the researchers reported that "the estimated period effect indicated declines in marijuana use in 1979–1992 and 2001–2006, and increases in 1992–2001 and 2006–2016." That "period effect" was "positively and significantly associated with the proportion of people covered by Medical Marijuana Laws…but was not significantly associated with the Recreational Marijuana Laws." In short, the study included adults as well as teenagers, did not look specifically at trends in states that had legalized marijuana, and found no statistically significant relationship between recreational legalization and increased marijuana use among 12-to-25-year-olds.

Contrary to Loftus' gloss, the "best evidence" indicates that, contrary to prohibitionists' warnings, marijuana legalization is not associated with an increase in underage use. Last year, Nora Volkow, director of the National Institute on Drug Abuse, testified that "in the United States, legalization by some states of marijuana has not been associated with an increase in adolescents' marijuana use."

Loftus is selective in a different way when he discusses alcohol prohibition. His claim that "Prohibition was effective" at reducing "alcohol-related illnesses" has a firmer basis than his claim that marijuana legalization results in more adolescent cannabis consumption. While economists Jeffrey Miron and Angela K. Dills found that state alcohol bans "had a minimal impact" on cirrhosis of the liver, for example, they estimated that national prohibition reduced cirrhosis by 10 to 20 percent.

But that is hardly the whole picture. "Increases in enforcement of drug and alcohol prohibition have been associated with increases in the homicide rate," Miron noted in another study, "and auxiliary evidence suggests this positive correlation reflects a causal effect of prohibition enforcement on homicide." According to Loftus, "there's no evidence that organized crime increased in strength because of Prohibition, merely that it became more visible." But that increased visibility included an increase in deadly violence tied to the black market, which was one of the reasons that people who had previously supported Prohibition turned against it.

Prohibition also was implicated in rampant corruption, injuries and deaths caused by tainted black-market liquor, and invasions of privacy, including erosion of the Fourth Amendment's protection against unreasonable searches and seizures. Weighing those costs, which are similar to the problems caused by the war on drugs, requires more than comparing them to the real or imagined benefits of prohibition. It requires value judgments that Loftus barely acknowledges. Is it reasonable to dismiss the pleasure that people derive from using psychoactive substance? Is it just to punish the many for the excesses of the few?

Loftus may trust politicians, who are at least as fallible as the people they govern, to make those judgments and impose "judicious restrictions." But given the case he makes that humans frequently behave irrationally, it is hard to see why.