Bringing Up the Middle

Against Excess: Drug Policy for Results, by Mark A.R. Kleiman, New York: Basic Books, 474 pages, $26.00

Suppose that every time you bought a bottle of wine or a six-pack of beer you had to present a drinking license to verify that you could legally consume alcohol. Suppose you then had to wait while the store's clerk checked with a national data base to make sure that you had not already filled your monthly quota of intoxicating beverages. You would probably consider this a serious imposition and wonder how the government had become so intrusive.

Suppose instead that you were confronted with exactly the same system, but for marijuana rather than alcohol. You would probably consider it a surprisingly loose arrangement and wonder how the government had become so permissive.

Those two scenarios, both of which Mark Kleiman proposes in Against Excess: Drug Policy for Results, capture the mixed response his book is likely to elicit from opponents of prohibition. On the one hand, Kleiman, an associate professor of public policy at Harvard's John F. Kennedy School of Government, is remarkably fair-minded in his analysis of current policy. He recognizes, for example, that the government's treatment of marijuana is difficult to justify, and he recommends legalization (albeit with licensing and quotas).

On the other hand, Kleiman explicitly defends the proposition that one of government's tasks is to protect individuals from themselves. He wants the state to continue regulating what people put into their bodies, but in a more consistent way, with a better understanding of costs and benefits. Hence the drinking license.

"Eventually we must learn to discuss our drug policies without raising our voices," writes Kleiman, who has been studying drug issues for more than a decade. This thorough, readable book is an excellent start. Its calm, deliberate approach will be refreshing for anyone who is accustomed to polemics on both sides of the drug-policy debate. Kleiman decries those who treat drug policy as "an occasion for a cultural holy war," in which scholars and scientists must serve the cause or risk being condemned as heretics. He observes that "a drug-crazed drug warrior can be as great a public menace as a drug-crazed addict."

Kleiman notes that the current legal status of a drug does not necessarily indicate anything about its hazards or value. Although he tends to overrate certain drug-related dangers—for example, death from cocaine use, disease from secondary tobacco smoke, and fetal harm as a result of moderate drinking during pregnancy—his evaluations are generally cautious and well-documented. He emphasizes the distinction between use and abuse, and he insists that the harm inflicted on current or would-be users (including the forgone benefits of drug consumption) should be counted as a cost of drug control.

Kleiman is unusual among defenders of prohibition, which he supports not only for cocaine and heroin but for cigarettes as well, because he emphasizes the unintended costs of drug policy. Heroin, for example, "causes crime because it is illegal" and therefore costly. Hence any policy that succeeds in raising the retail price of heroin will boost the crimes committed by heavy users to support their habits. Kleiman also reminds policy makers to consider the negative effects associated with black markets, including violence, corruption, disrespect for the law, and mislabeled or adulterated drugs.

These observations are familiar to anyone who has followed the debate over legalization. But Kleiman makes some more-subtle points as well. For example, he notes that drug-control measures can lead to dangerous substitution: "Poor kids who find illegal marijuana too expensive may switch to sniffing gasoline." And he recognizes that the diversion of police resources to drug-law enforcement has resulted in "the effective decriminalization of increasingly serious kinds of predatory crime," especially in major cities.

Despite the bad effects and limited success of the drug laws, Kleiman considers them necessary to keep abuse at an "acceptable level." He suggests, without offering evidence, that drug control is a more efficient way of preventing drug-related misbehavior—disorderly conduct, negligent driving, child neglect—than laws aimed at the misbehavior itself. But he also wants to limit the harm that drug users do to themselves.

"The general rule in a liberal, free-market society," Kleiman writes, "is not to interfere in adults' considered decisions about the management of their own affairs, as long as those decisions do not impinge on the rights of others." But psychoactive drugs undermine the assumption that "individuals are good stewards of their own welfare," he writes: "By acting directly on the brain's own pleasure mechanisms, by supplanting the body's internal production of important neurochemicals, and simply by clouding judgment, drugs challenge in fact the personal autonomy on which rational-actor models rely in theory."

Elsewhere in the book, Kleiman remarks on the widespread prejudice against "artificial" pleasure, and his argument for special treatment of drugs seems to be influenced by this attitude. In the effect that it has on the brain, drug taking is analogous to many other pleasurable but potentially harmful activities. Consider the "sex addict" who risks disease through reckless promiscuity, the college student who stays up until the wee hours playing Tetris the night before an exam, or the jogger who is so hooked on runner's high that he injures himself through too much exercise. In each of these cases, the combination of adrenaline, endorphins, and other biochemicals reinforces excessive behavior that may later be cause for regret. Drug taking is not unique.

Nevertheless, it's true that people do things under the influence of drugs that they would not otherwise do, including things that harm themselves and sometimes others. But the effect of drugs on behavior is not a simple pharmacological compulsion. It is a complex phenomenon, involving the three-way interaction of what psychiatrist Norman Zinberg called "drug, set, and setting": the substance, the subject's state of mind, and the environment, broadly defined. To cite just one example that Kleiman himself mentions, whether alcohol "causes" violence seems to depend upon cultural expectations. Furthermore, as Kleiman notes, "drug abuse is rare, and chronic drug abuse with lasting bad consequences very rare."

The dramatic variation in response to the same drug across groups and individuals suggests that set and setting—including personal and cultural values—are at least as important as the drug itself. Among other things, this means that drugs do not nullify free will; with rare exceptions, intoxicated people are not out of control in the sense that their wishes and expectations do not matter. Indeed, Kleiman insists that drug users be held accountable for intoxicated misbehavior, even suggesting that they should be punished more severely for consciously choosing to be impaired (as in the case of drunken driving).

Furthermore, Zinberg's analysis indicates that we should pay more attention to the conditions in which people take drugs. As Kleiman acknowledges, the setting fostered by prohibition is not conducive to responsible drug use. It encourages rapid consumption on the sly in concentrated form, without social pressures for moderation. And the fact that all consumption of a drug is illegal blurs the distinction between use and abuse.

Where he would stop short of prohibition, Kleiman wants the state to enforce an ethic of moderation—for example, by rationing alcohol and marijuana and licensing their users. But he seems to recognize that this is a paradoxical enterprise, since legal restrictions on drug use impair "individual and collective powers of self-control." When the state assumes the task of preventing excess, it preempts the informal pressures, incentives, and sanctions that friends, neighbors, relatives, and employers bring to bear on those whose drug use threatens to hurt themselves or others. These forces are in some ways more powerful than state intervention because they are more pervasive and because they encourage internalized control rather than merely constraining behavior.

But Kleiman's argument for paternalism suffers from a more basic flaw: He misconstrues the utilitarian case for individual liberty. The point is not that people are necessarily "good stewards of their own welfare"—merely that they are the best stewards. People often make decisions they later regret, and sometimes the decisions have irrevocable consequences, but that does not mean they would be better off with someone else running their lives. The alternative to letting people make mistakes—appointing bureaucrats to divine their interests and make choices on their behalf—is likely to be worse.

There's even more reason to be skeptical of this project when it is carried out on a mass scale, as drug policy is. Government planners simply cannot know enough to weigh all the relevant costs and benefits, especially since many factors are unpredictable (drug fashions, new diseases, substitution effects) or unmeasurable (the pleasure of drug use, the pain of a child's death). Even if they could collect all the necessary information, the blunt tools of drug policy—taxes, regulations, bans, arrests—could not implement the resulting plan with any precision.

Kleiman acknowledges the uncertainty. Discussing measures, such as taxation or prohibition, aimed at minimizing the harm that drug abusers do to themselves, he writes that "whether…the average net effect of such interventions would turn out to be beneficial or harmful is an interesting, if empirically unanswerable, question." Elsewhere, he writes that such a policy amounts to "a particularly tricky piece of social engineering" with "a propensity for unexpected and unwanted side-effects."

Indeed, Against Excess is sprinkled with caveats that should give pause to even the most ambitious social engineer: "The total harm done by any drug is a matter more of speculation than of measurement.…There are at least as many problems as there are varieties of drugs and drug users.…Attributing to each form of a drug anything resembling its precise share of the harm done by that drug can be a monstrously complex task.…As a practical matter, determining the ideal level of taxation would require heroic feats of measurement."

Undaunted by his own warnings, Kleiman forges ahead. His technocratic urge to micromanage the nation's drug consumption is most apparent in his discussion of taxes. A drug tax, he explains, should cover the external costs of consumption—those imposed on other people. The tax forces users to take into account the full effects of their behavior. If properly calculated, it will result in the optimal amount of consumption. Kleiman draws an analogy to a tax on pollution.

There's a problem, however. Although each polluter by definition imposes costs on others, that is not true of each drug user. Indeed, only a small minority of drug users impose significant costs on others by getting into accidents, creating public nuisances, committing crimes, burdening public health care, and so on. Even assuming that it's possible to calculate, say, all external costs related to alcohol consumption, dividing that total by the number of units sold will not yield anything like an "optimal tax."

Such an average would inevitably undertax alcohol abusers while overtaxing responsible drinkers. The former, who are probably less sensitive to price changes anyway, will be underdeterred, while the latter will forgo harmless pleasures that would have added to total welfare. This is not only unjust but inefficient. Kleiman acknowledges that such a tax would not correspond to the actual costs generated by each buyer, but he fails to note that this undermines the whole scheme.

The most troubling aspect of Kleiman's policy prescriptions, aside from his assumption that drug use is a privilege rather than a right, is his failure to learn from the history that he describes. For example, although heroin prohibition may have restricted the number of addicts, it has made each of them a lot worse off: The unpredictable quality of black-market supplies makes overdoses and poisoning more likely; high prices both impoverish addicts and encourage them to inject (the most efficient way to administer the drug); needle sharing, promoted by antiparaphernalia laws, spreads disease, including AIDS and hepatitis-B.

"If heroin had been legalized two decades ago," Kleiman writes, "it would be much more widely used, but the average member of that larger population would be better off and less likely to commit crimes. Scores of thousands of heroin users would never have been infected with HIV. The spread of that virus from heroin users to their sexual partners, and the consequent birth of HIV-infected infants, would be a footnote to the AIDS problem rather than a focus of concern.…

"Perhaps, if the AIDS epidemic had been foreknown, a convincing argument could have been made that the increase in heroin addiction as a result of one or another form of legal availability would have been more than compensated for by the reduction in HIV transmission." (Emphasis added.) But the government never foresees the unintended consequences of its actions. The only thing we can say for sure is that there are bound to be more such tragedies.

Jacob Sullum is associate editor of REASON.