An Analysis of Drug Prohibition as (Irresponsible) Public Policy
Tom O'Connell, MD
The "Social Contract," is accepted by most political
scientists as the basis of Western democratic government. One
of its fundamental considerations is that public policy should
be enacted for the sole purpose of protecting or enhancing the
welfare of the governed. When experience clearly demonstrates
that a given policy actually works against that welfare, it should
be repudiated or suitably modified.
Commerce, that process by which goods and services are bought
and sold, is essential to any complex society, providing both
the basics of subsistence and those extras which enhance quality
of life and constitute a patrimony for future generations.
Man is naturally entrepreneurial and competitive; although free
markets have been shown to be the most efficient, history has
also demonstrated, particularly since the Industrial Revolution,
that unregulated commercial activity can lead to exploitation
of the least fortunate, depletion of natural resources and pollution
of the environment. To limit these abuses, democratic governments,
with the consent of their electorates, have come up with two quite
different ways to limit commerce: regulation and prohibition.
How Are Regulation and Prohibition Different?
People not directly concerned in a business see little difference
between the government telling precisely how something must be
done what can't be done at all. To most, both are simply unwelcome
examples of government intrusion. Recent discussions of the "tobacco
deal" in the press, on television, and in Congress have confirmed
a long held suspicion: the critical difference between regulation
and criminal prohibition is poorly understood. However, if one
wishes to analyze our drug policy realistically, it's an understanding
which is essential.
Both regulation and prohibition laws are justified as part of
the Social Contract. In the United States, an attempt has been
made to limit such powers by a written Constitution. Much could
be said about the Constitutionality of drug prohibition, or indeed,
any prohibition law, but for now, let's assume that both prohibitionary
and regulatory powers are freely granted by our Constitution.
The issue then becomes: in any given situation, which approach
should responsible policy makers employ?
Commercial activities in the United States are controlled by complex,
overlapping local, state, and federal regulations relating to
working conditions, labor practices, advertising, licensure, safety
and myriad other details which apply to any enterprise. Regulation
may appear repressive and overwhelming when considered as an abstract
list of onerous rules, but such limits have evolved in a practical
setting which has allowed commerce to be carried out on a daily
basis throughout our history.
Although imperfect, frequently tainted by corruption, and the
subject of continual argument and litigation, regulatory systems
function reasonably well. Disputes may involve law enforcement
in extreme cases, but the police role is rarely primary. Initially,
there are committees, panels, boards and commissions within the
industry or profession itself. Beyond that, governmental organizations
exist with appropriate levels of administrative authority. Finally,
there are civil courts. The overwhelming majority of regulatory
disputes and infractions are resolved well short of criminal sanctions.
Regulation works; commercial entities comply primarily because
they want to continue in operation. The ultimate power of regulatory
laws to force removal a product or service from the market is
very real, precisely because participants see no alternative to
remaining in business and are unprepared to do so as criminals.
Criminal prohibition is fundamentally different than regulation;
the law decrees manufacture, sale, possession or use of specified
substances to be a crimetherefore, regulation never enters
the picture. All interactions take place between a criminal industry,
its customers and law enforcement. Illegal markets could not compete
with legitimate ones if the law did not hand criminals their lucrative
tax-free monopoly. Participants indicate from the outset that
they have no stake in legitimacy. They have concluded that the
enormous untaxed profits which attend successful sale of an illegal
product offset any potential risk of apprehension and punishment.
Consumers who buy the product tacitly indicate a willingness to
assume similar risks.
There is no regulation as suchonly empiric ad hoc rules; when
either profit or survival necessitate change in those rules, parties
are free to do so, relying on their own ability to enforce them.
The panels, boards, commissions and courts which restrain competition,
make rules and enforce safety standards in legitimate industry
are replaced by deceit, corruption, and violence. Black markets
favor success of the most cunning and brutal of entrepreneurs
and make no provision for their dissatisfied or injured consumers.
Under prohibition, the government's role can only be suppression
by law enforcement agencies. This denies society the considerable
benefits flowing from regulation of other commercial pursuits:
taxes paid by market participants, retirement and health plans,
safety standards, legitimate employment for workers, purity and
price competition, and the honoring of contracts. The hidden cost
of rejecting regulation is enormous. In addition to the cast of
"criminal justice" for suppressing markets for "illicit
drugs," there is an annual morbidity and mortality caused
by unsterile syringes, uncertain dosage, and lack of standards
for street drugs. Finally, there is the carnage of gang warfare
between rival dealers and the depressed property values of outdoor
The very nature of prohibition guarantees almost no public access
to how it is evaluated, enforced or controlled. "Control"
of criminal markets is illusory and is limited to a deceitful
interaction between a web of criminal organizations and those
law enforcement agencies charged with suppressing them. Neither
allow objective analysis of their critical inner workings. Street
drugs are delivered to consumers from an efficient, but nearly
invisible decentralized industry which has to grow raw materials
and then process, warehouse and transport a final product to a
multilevel retail distribution network. Legal enterprises carrying
out similar functions are scrutinized at each step by armies of
market analysts. However, almost no comparable data can be reliably
derived from constantly shifting illegal drug markets. Without
reliable production or consumption data; there can be no reliable
assessment the effectiveness of law enforcement which thus becomes
free to evaluate its own competence.
Despite this ability to exaggerate the "successes" of
law enforcement, its shortcomings and the massive growth of the
drug market have become so obvious that advocates of prohibition
have been forced to adopt the lame strategy of claiming that despite
failure to control the drugs market, prohibition is really a success
because without it, we would be inundated with even more addiction
and crime. In fact, they claim, there is no possible alternative
to drug prohibition. A cohesive and blatantly self-interested
lobby has formed around the single issue that drug prohibition
is an essential element of American policy and that "legalization"
is unthinkable. Until recently, their message has been accepted
by the general public almost without question. Desperate to reinforce
it in the face of recent setbacks (successful medical marijuana
initiatives), the prohibition lobby, desperate to maintain their
control of policy, has become increasingly unconcerned with the
truth or accuracy of public statements supplied to a largely compliant
and ignorant press.
Their justification for criminal prohibition is that the danger
from drugs, especially to children, is so grave, the only reasonable
course is to ban them. If a ban could be rendered completely effective,
this questionable premise might actually be tested, however eighty
years of history have shown the various methods of suppression
to be so ineffective that the global drug market, has grown progressively
since the end of World War II and illicit drugs are now everywhere
purer, cheaper, more abundant and accessible than ever.
"Illegal Drugs" Are a Government Creation
Since only the government has the power to define "illicit,"
drugs, the resultant drug market and criminal industry it sustains
are entirely government creations. This is an important understanding,
since prohibitionist rhetoric is delivered with the implication
that "illicit drugs" are an unavoidable fact of life.
In the rare instances when they are forced to justify drug prohibition
as policy, they begin with the erroneous assertion that banning
"illicit drugs" is an implicit part of the social contract.
Ingenuously failing to recognize that shopworn "drug scare"
propaganda actually advertises "illicit" drugs and promotes
their use, the prohibition lobby usually attempts to blame continued
demand for them on an uneducated hedonistic public or, more vaguely,
on the drugs themselves. When reminded that the illegal market,
with its attendant evils was created by the government, they offer
the fatuous justification that "legalization" would
"send the "wrong message" and assert that a "moral
condemnation" of certain agents is essential. This logic
ignores the fact that a legal liquor and pornography industries,
unpromoted by the government, manage to exist within a regulatory
framework which simply condones them. It also ignores the fact
the thrust of the agreement between the state Attorneys General
and "Big Tobacco" is preservation of an industry producing
a dangerous and addictive product as a legal, tax-paying, regulated
entity. Claims that an overwhelming wave of drug addiction would
follow "legalization" also ignore the reality that there
has been a steady decline in per-capita alcohol consumption for
over two decades a steep reduction in drunken driving over the
past decades, and a significant drop in cigarette consumptionall
within a climate of "legalization."
The annually government response to the failure of its attempted
suppression the drug market by requesting an ever larger budget.
Even though many drug war items are hidden in the budgets of other
agencies, the acknowledged federal drug enforcement budget for
this year is sixteen billion, an all time record. This does not
include mandated state expenditures, which in the aggregate, probably
exceed federal costs. Given the level of failure of our prohibition
policy, for a President to announce within his budget message,
as Clinton brazenly did in 1997, that all efforts at "legalization"
will be resisted to the extent possible is a profound betrayal
of the public trust. However, until the public understands the
nature of prohibition and how the prohibition lobby perpetrates
its monstrous fraud, Clinton and our other political leaders will
not be held accountable for leading America down this long road