Some Drug Warriors Just Won't Concede Defeat

Harder law enforcement leads to harder drugs.

There's a fine art to refusing to learn lessons that are right in front of your eyes. A recent newspaper column demonstrated mastery of that art, managing to simultaneously acknowledge the failures of America's drug policy while calling for more of the same. The author acknowledged that mandatory minimums do no good and then suggested that the right course of action is to prosecute drug dealers harder. But harder drug law enforcement gets you harder drug problems.

Off to a Good Start

"News coverage of a Mesa police officer losing consciousness in his patrol car from an overdose certainly highlights, if sensationally, the crisis that is opioids, in particular fentanyl," wrote Abe Kwok, editorial page planner for the Arizona Republic. "As critics such as the libertarian think tank Cato Institute note, harsh mandatory sentencing laws do nothing to blunt narcotic drugs' effects."

He added that "the institute pointed to a 1,500% spike in methamphetamine deaths in the United States between 2006 and 2021, following voter-approved Proposition 301 in Arizona that imposed mandatory minimum prison sentences for possessing, transferring, selling, distributing or manufacturing meth."

Kwok also acknowledged that other restrictive policies, especially limitations on opioid prescriptions "did little to slow deaths from overdoses but created their own set of problems, such as blocking access to relief for chronic pain sufferers." This is an important point championed by the late Siobhan Reynolds and the Pain Relief Network over a decade ago and still a matter of serious concern for many Americans. Last year, the Centers for Disease Control and Prevention finally acknowledged that opioid guidelines are being interpreted inflexibly. The CDC emphasized that "some policies purportedly drawn from the 2016 CDC Opioid Prescribing Guideline have been notably inconsistent with it and have gone well beyond its clinical recommendations" resulting in "untreated and undertreated pain."

So far, so good for Kwok. Except, he refuses to take these arguments to their logical conclusion.

Missing the Point

"Most people know, especially those who peddle the drug, that just a tiny amount of fentanyl can be lethal," Kwok writes. He calls for "law enforcement agencies to commit to aggressively investigate the direct source of the drug(s) in an overdose fatality and for prosecutors' offices to vigorously pursue charges when there's sufficient evidence."

Umm… No. If Kwok had read further in the Cato Institute piece by Jeffrey Singer to which he'd linked, he would understand why this makes no sense.

"The harder the law enforcement, the harder the drug," Singer, an Arizona surgeon and senior fellow at the Cato Institute, wrote while praising a veto of mandatory minimums legislation by Arizona Gov. Katie Hobbs. "Enforcing prohibition incentivizes those who market prohibited substances to develop more potent forms that are easier to smuggle in smaller sizes and subdivide into more units to sell."

What Singer calls the "Iron Law of Prohibition" is why bootleggers specialized in distilled liquor instead of beer. The law is why powdered cocaine was concentrated into crack. And the iron law is why headlines about drugs now feature fentanyl, a potent synthetic opioid many times stronger than heroin. If prohibitionist policies continue, expect illegal products of the future to be marketed in a concentrated form to evade detection. Because these drugs are so potent they allow little room for leeway, making it relatively easy to overdose.

The fact that these drugs have been driven underground where they are often adulterated and of uncertain dosage makes them that much more dangerous.

Which is to say, the illegal fentanyl market that Abe Kwok worries about now is a direct result of the aggressive law enforcement efforts and vigorous prosecutions that he champions. More aggressive arrests and vigorous prosecutions will get you more results along the lines of illegal trafficking in big-bang-for-your-buck drugs like fentanyl. "Tranq"—the street name of the animal tranquilizer xylazine—is already here to fill the role of the next nasty high to gain users and news coverage.

Oddly, Kwok admits that his preference for harder law enforcement won't accomplish anything but doesn't budge from the idea.

"Pursuing criminal charges in those roughly 1,300 cases may not make a dent in drug supply or demand," the Arizona Republic writer notes of a flurry of drug-related deaths in Maricopa County. "But they would represent a closer step toward justice."

Justice? Of what kind?

The Real Lesson from Drug War Failure

Instead of doubling down on failure, what if Kwok had been willing to read Singer's March testimony to the U.S. House Judiciary Subcommittee on Crime and Federal Government Surveillance, which is linked from the Cato piece he cited? Or, more likely, what would he have passed along if he'd been more inclined to take the testimony to heart and to suggest remedies he fears his audience doesn't want to hear?

"If policymakers double down on the same prohibitionist policies they have employed for over 50 years, deaths from illicit drug overdoses will continue to rise. Doing the same thing repeatedly, with even more vigor this time, will not yield a different result," Singer told lawmakers. "Prohibition makes the black market dangerous because people who buy drugs on the black market can never be sure of the drug's purity, dosage, or even if it is the drug they think they are buying."

Singer recommends ending drug prohibition to allow for a legal market that deals in products of known dosage and purity. A legal market won't stop people from getting high, but it will end the escalation between punitive law enforcement on the one hand and drug innovation and potency on the other.

Short of legalization, the Arizona surgeon suggests lawmakers focus on eliminating laws that stand in the way of harm reduction, such as those that criminalize drug paraphernalia (driving users to share needles and diseases) and bar the distribution of drug test strips (rendering it difficult to identify drugs). Making naloxone available over-the-counter was a good step towards reducing deaths since it reverses the effects of opioid overdoses. That's an approach that gets law enforcement out of the way rather than doubling down on failure.

Stepping back from prohibitionist policies that Kwok concedes do harm and accomplish little if any good might not accord with his sense of "justice." But recognizing reality by abandoning counterproductive authoritarianism might just make the world a somewhat better place and save lives.