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Between Politics and Reason

  Chapter 8.   Will Drug Use/Abuse Rise under Legalization?

    Erich Goode — State University of New York, Stony Brook

Attacking the supply or manufacture and distribution side of the drug-use equation is extremely unlikely to work, as we just saw. Clearly, the lure of the profit motive is too great for at least some of our citizens, even with some measure of risk involved. What about the demand or user side? The motives for selling and use, although intertwined, are at least analytically distinct. Can law enforcement deter use? More generally, does the law and its enforcement deter any activity? If there were no laws and no enforcement, would currently illegal activities become more common? If a product or service is criminalized, does the demand for it remain constant? Will just as many customers be willing to pay for it regardless of whether it is legal or illegal? Just how inelastic is the demand for certain products and services? The legalizers are insistent that "prohibition doesn't work"—indeed, can't work (Carter, 1989; Hyse, 1994; Morgan, 1991; Priver, 1993). Is this true for all products and services, under all circumstances? More specifically, is it true for the currently illegal drugs?
    As a general rule, strongly condemned and punished activities are less commonly engaged in than are tolerated and approved activities. The "forbidden fruit" argument—that condemnation makes an activity more attractive and, hence, more frequently enacted—may apply, in certain limited instances, to experimentation with an activity but certainly not continued participation. I suspect that criminalization actually does lower the demand—as well as the supply—of certain products and services. To put the matter another way, legalization would result in an increase in the incidence of many activities. As a general rule, the more elastic, more substitutable, and more sensitive to price a demand is, the more effective criminalization is in discouraging its satisfaction; the less elastic, less substitutable, and less sensitive to price a demand is, the less effective criminalization is (Wisotsky, 1990b, p.8). Outlawing leaded gasoline, for instance, has not produced a huge illegal market for it—customers who are willing to pay hundreds of times its previous, legal, price and manufacturers who are willing to supply it, thereby risking arrest. For practically all motorists, an adequate substitute exists in unleaded gas; hardly any customers are willing to pay huge price increases for marginally superior performance. The sale of automobiles in the United States is restricted to those that meet certain standards, for instance, with respect to emission controls. Has that resulted in a huge underground sale of cars that do not meet these standards? No; in this case, the "prohibition" of nonstandard cars works, more or less. The number of times customers visit prostitutes and, hence, the number of prostitutes, are almost certainly smaller, all other things being equal, where it is illegal than where it is legal. Can anyone seriously doubt that a substantial proportion of men would visit prostitutes more frequently if the public sale of sex were completely legalized? Prostitution is a major business in Nevada, where it is legal; elsewhere in the country, studies show, sex with prostitutes is only a minor sexual outlet for men (Michael et al., 1994, p.63). For many men, where it is illegal, sex with a prostitute affords a sordid, even risky sexual option, as the British actor Hugh Grant discovered in Hollywood in 1995. Risks come not only in the form of arrest (extremely low, although, with sporadic police campaigns, they are there) but also in the form of criminal victimization from the prostitute and her colleagues and from denizens of the environs in which prostitution is likely to take place, and, for some, in the form of social stigma in the event of discovery following arrest. Hence, the "prohibition" of prostitution must be counted as at least a partial success.



Some legalizers argue that no ban or prohibition on an activity or substance that is desired by a sizable number of citizens can ever be successful. The legalizers may be referred to as anti-prohibitionists. Most adopt a broad, sweeping view of the failure of prohibitions in general; their guiding model for this stance is national alcohol prohibition (1920-1933). The Eighteenth Amendment, also referred to as the Volstead Act, is the only constitutional amendment to have been repealed in U.S. history. Everyone knows that Prohibition was a clear-cut failure—very possibly the biggest domestic legal mistake in the federal government's entire history. We've all learned about the history of Prohibition—Al Capone, organized crime, gangland violence, bootleg liquor, bathtub gin, speakeasies and illegal nightclubs. Since Prohibition was such a disastrous failure, it follows as night follows day that our current policy of drug prohibition will also fail. "Prohibition can't work, won't work, and has never worked" (Carter, 1989), we've learned. True or false?
    Remember that policies may work well in one way but badly in another. Prohibition is an excellent example of this principle. Interestingly, national alcohol prohibition did work in at least one sense—it reduced the level of alcohol consumption in the American population. Historians, medical authorities, and policy analysts have put together indicators from a variety of sources—arrests, automobile fatalities, hospital admissions, medical examiners' reports, as well as legal sales before and after Prohibition—and concluded that the consumption of alcohol declined significantly between 1920, when the Eighteenth Amendment took effect, and 1933, when it was repealed. (Actually, most state laws prohibited alcohol sales by 1916, so the decline in use took place even before 1920.) In 1911, the death rate from cirrhosis of the liver, a reliable measure of alcohol consumption, stood at 29.5 per 100,000 men; in 1929, it was 10.7. Admissions to state mental hospitals for alcohol psychosis was 10.1 per 100,000 in 1919, and 4.7 in 1928 (Moore, 1989). Legal alcohol sales were twice as high in the 1911-1915 period (2.56 gallons of absolute alcohol per adult) as in 1934, the first full year of repeal (0.97 gallons). This indicates that a substantial number of Americans discontinued the use of alcohol during Prohibition and did not pick up the habit again until a few years later. (Of course, keep in mind the fact that repeal did not legalize the sale of alcohol; it authorized "local" or state options. Some states opted to legalize, while others retained some form of prohibition, at least temporarily. This is a point in favor of the prohibitionist argument, of course, since, as more and more states legalized over time, alcohol consumption increased in those states.) It was not until after the early-to-mid-1940s that legal sales matched the pre-Prohibition levels—1.20 gallons in 1935, 1.54 in the 1936-1941 period, and 2.06 in 1942-1946 (Lender and Martin, 1987, pp.206-207). The conclusion is inescapable: In the narrow sense of reducing alcohol consumption, Prohibition did work. Far from being a failure, in this one respect, it was a resounding success.
    But again, in most other important respects, Prohibition was a disastrous failure; in this sense, the anti-prohibitionists are correct. It may have switched millions of drinkers from beer, a less potent beverage, to distilled spirits, a far more potent—and more harmful—beverage; it encouraged the consumption of harmful, poisonous substitutes, such as methyl alcohol; it certainly gave organized crime an immense boost, pouring billions of dollars into the hands of criminal gangs, consolidating their power, and effectively capitalizing their other illegal enterprises; it encouraged corruption and brutality on the part of politicians and the police on a massive scale. In these crucial respects, Prohibition did not work; in fact, it was clearly a catastrophic failure. (It was also a failure from the point of view of absolute deterrence: Many Americans did get their hands on illegal alcoholic beverages.) The lesson from Prohibition should not be that drug prohibitions cannot work; it should be that, in instituting a drug policy, impacts come in packages. Some of the contents in a given package may be desirable, while others may be most distinctly undesirable. Another package will contain a different mix, with entirely different positives and negatives. Which package one selects depends on values, not science—that is, depends on a preference for certain results over others. There is no policy that will yield results that everyone—or anyone—will regard as entirely or uniformly positive. As the saying goes, "You pays your money, and you takes your chances."



Regardless of whether or not prohibition generally does or does not reduce the incidence of an activity (for certain activities, it does; for most, it doesn't)—and regardless of whether or not Prohibition specifically did or did not reduce the consumption of alcohol (as we saw, it did)—the results of one of the various versions of legalization have to be considered separately. The fact that "trickle-down" thinking is a fallacy reminds us that a policy that looks good on paper may not work in the real world, one that works in general or in most instances may fail in a specific case. The assumption of the legalizers is that abolishing the criminal penalties for the possession and sale of the currently illegal drugs will not result in a substantial rise in their use and abuse. (Some of legalization's most optimistic advocates even argue that use will actually decline; this view is not widely shared.) Is this true?
    The question of the impact of legalization on the incidence and frequency of use pivots on two separate questions, one empirical and the second moral and ideological. The empirical question is familiar to us all and can be stated simply, although answered with difficulty and only tentatively: What evidence do we have that addresses the issue of the impact of legalization on use? The moral question is a bit harder to spell out, but need not detain us here, since it is essentially unanswerable: If legalization does result in an increase in use, how many more users and abusers represent an acceptable increase, given the benefits that this change will bring about? Dennis (1990, pp.l28-129) estimates that legalization will result in a 25-percent increase in the number of abusers and addicts. Even if the figure were to double, he finds this acceptable, considering that legalization will unburden us from criminalization's enormous monetary and human costs. I suspect that even if we were all to agree on Dennis's numerical prediction, not all of us would accept his conclusion. Again, the moral question has to be disentangled from the empirical question. Empirically, what is likely to happen under some form of legalization? Will the use of the presently illegal drugs rise—or remain at about the same level?



One critic of the drug laws claims that their supporters argue that legalization will mean that "countries will plunge into anarchy, families will disintegrate, and most of us will become drugged zombies" (Mitchell, 1990, p.2). Some supporters of the drug laws actually do feel that way, or very nearly so. Former drug "czar" William Bennett estimates that under legalization—a plan he vigorously opposes—some 40 million to 50 million Americans would become hard core heroin and cocaine abusers. William Pollin, former director of the National Institute of Drug Abuse (NIDA) estimates even greater numbers for cocaine alone. Since cocaine is the most pleasurable (or "reinforcing") drug in current use, it makes sense that if there were no law enforcement, "the number of cocaine users would be right up there with smokers and drinkers.... We'd have 60 to 100 million cocaine users instead of the 6 to 10 million current users we now have.... Viewed in this light," Pollin adds, our punitive law enforcement policy "is 90 percent effective" (Brinkley, 1984, p.A12). Would we become a nation of "drugged zombies" under legalization?
    I do not believe that the use or abuse of cocaine or heroin will increase 10 times if any of the currently debated legalization plans were put in place. In other words, I believe that Bennett's estimate of 40 million to 50 million addicts for heroin and cocaine and Pollin's estimate of 60 million to 100 million regular cocaine users are seriously wide of the mark. Regardless of how alluring, seductive, or reinforcing these drugs are, the tens of millions of Americans Bennett and Pollin project who will become involved in the use of these seriously mind-transforming drugs for the pleasure they afford—and risk destroying everything they now value, including job and career, marriage and family, money, possessions, and their freedom—simply do not exist. At the same time, I do believe that, if one or another legalization proposal were to be instituted, the number of Americans who will take, and become seriously involved with, the currently illegal drugs, including heroin and cocaine, would increase more than modestly, possibly even dramatically, possibly along the lines of two to three times. In other words, there will be a significant increase, but the "worst-case scenario" will not come to pass. My estimate contradicts both the legalizers, who argue that there will be no, or an extremely modest, increase; and the criminalizers, who argue that the increase will be monstrous, almost uncontrollable. Here, I am a firm believer in relative deterrence: Yes, use is lower than would be the case without law enforcement, but no, law enforcement does not and cannot eliminate or drastically reduce use. Perhaps some justification of my estimate is in order.
    Three different sets of evidence can be used to address the question of the impact of legalization on frequencies of use. The first is related to what we know about human nature generally. The second is related to the intrinsic nature of each drug, how it is used, and what its effects are. And the third is what is known about actual or concrete frequencies of use under more restrictive, and less restrictive, conditions.



All predictions of what is likely to happen under certain conditions are based on specific assumptions about human nature—a general theory of behavior, if you will. Legalizers and prohibitionists hold contrasting sets of assumptions about human nature; perhaps it will be worthwhile to look at them under a microscope.
    The legalizers see human nature as basically rational, sane, temperate, and wise. "Inform a normally intelligent group of people about the tangible hazards of using a particular substance and the vast majority of them will simply stop" (Gazzaniga, 1990, p.39). That is, the reason why drug abuse will not rise sharply under legalization is that most people are cautious and not willing to take risks; since currently illegal drugs entail a certain likelihood of harm, it is extremely unlikely that they will be taken up by many people who are not currently already using. In contrast, one of the reasons that prohibitionists cite in support of their argument is their assumption—as we saw with Bennett and Pollin's predictions—that many people are not nearly so rational and moderate in their behavior as the legalizers believe. Many, many Americans will experiment with and use heroin and cocaine, the prohibitionists believe, of this total, a substantial proportion will become compulsively involved with them to the point of abuse and addiction. The reason why this will happen, the prohibitionists believe, is that many of us are willing to take dangerous risks; they feel that a substantial number of us believe that bad things happen to other people but not to us, that we, somehow, are somehow lucky enough to do potentially dangerous things, yet not get hurt. A lot more people are reckless risk-takers than the legalizers think, the prohibitionists argue. In fact, they say, this is precisely the reason why we have criminal laws outlawing certain activities: By introducing the risk of arrest, society can dissuade the slightly foolhardy from engaging in high-risk activities, leaving only a fairly small number of very foolhardy souls who will be willing to do so.
    Many decades ago, Ruth Benedict published a classic in the anthropological literature, Patterns of Culture (1934). In that book, she made a distinction between two approaches to life—the Apollonian and the Dionysian. In the ancient Greek and Roman religions, Apollo was the god of poetry, music, light, healing, and manly beauty, while Dionysus was the god of fertility, wine, and drama. Hence, the Apollonian approach to life is a "classical," measured, graceful, traditional, rational way of living, while the Dionysian approach is pleasure-seeking, lustful, hedonistic, selfish, risk-taking, even violent and dangerous. Some cultures stand more at the Apollonian end of this spectrum, while others stand at the Dionysian end. Likewise, some people are more Apollonian, others are more Dionysian. The legalizer's general theory of human nature (or, at least, the American version of it) is Apollonian; the prohibitionist's is Dionysian.
    In my view, the argument between the criminalizers (who see human nature as closer to the Dionysian pole) and the legalizers (who see it as more Apollonian) is misplaced. To put it another way, both sides are partly right—and partly wrong. In fact, while most Americans are not Dionysian risk-takers, this is irrelevant. The crucial issue is not the orientation of most Americans, but the orientation of a minority. There are enough Dionysians in this society who, under the right social and legal conditions, would be inclined to experiment with drugs and seriously disrupt the lives of the rest of us. In spite of the practical, hard-working, sober veneer of most Americans, many of us are a great deal more Dionysian than we are willing to admit. There are many among us who want to drive fast cars, get intoxicated on psychoactive drugs, engage in a variety of sexual adventures, neglect our workaday and family obligations, eat fattening foods without restraint, dance until dawn, and commit a wide range of criminal acts, but who are afraid of the consequences—social, monetary, and, for some of these actions, legal consequences. The removal of legal penalties outlawing one of them—getting intoxicated on drugs—would make drugs more attractive to a substantial number of Americans. My contention is that the threat of arrest and imprisonment is one of the mechanisms that keeps the wilder side of the moderate Dionysians (if such a creature is not a contradiction in terms) in check, while the small minority of extreme Dionysians remain undeterred by any manner of risk, legal or otherwise.
    But here's an extremely important point: The legalizers are correct in assuming that most of us are not true Dionysians. Most Americans would not experiment with heroin or cocaine, and, of those who would, most would not become unwisely and abusively involved with them. There is almost no chance that, under legalization, heroin or cocaine would ever become as popular as cigarettes or alcohol. The vast majority of Americans would shun the recreational use of the currently illegal drugs, and the vast majority of those who would use them would be temperate and moderate in their use. Comments one critic of the current policy, "while certain drugs can produce physical dependence, most individuals will not willingly take those drugs, even after experiencing their effects" (Gonzales, 1985, p.105). Still, this is irrelevant. What is important is that more people would use under almost any conceivable version of legalization than is true today, and more would use compulsively and abusively.
    I do believe that most people do not want to harm themselves. I believe that the evidence shows that, however inaccurately, people generally do calculate cost and benefit before engaging in certain actions. (Indeed, this is one of the reasons behind enacting and enforcing criminal laws.) But risk is not the same thing as harm; risk entails taking chances—it is not a guarantee of being harmed. A certain proportion of motorcyclists refuse to wear helmets. For most of them who take that risk, not wearing helmets will make no difference to their life or limb, because most will not get into a serious accident. The same applies to motorists do not want to wear a seat belt; for most of them, not wearing a seat belt is in fact not harmful. However, harm enters into the picture not in each and every case but in the overall picture. Injury and fatality statistics are very clear about this: You are more likely to be seriously injured and die if you do not wear a helmet or a seat belt. Some (not all, not even most) motorcyclists are harmed because they didn't wear a helmet; some motorists are harmed because they didn't wear a seat belt. The law convinces a very substantial proportion of motorcyclists and motorists to wear these protective devices; even more persuasive than a law by itself is a law with real penalties and vigorous enforcement.
    Again, it is simply irrelevant to argue that most "normally intelligent people" will give up an activity if they are aware of the "tangible hazards" of an activity or substance (Gazzaniga, 1990, p.39). The fact is, the risk an activity entails is not always clear-cut, obvious, or immediately apparent. Indeed, the danger in question may never manifest itself because, once again, risk is a statistical, not an absolute, affair. Most people are not harmed at all by a great many very risky activities. The two crucial issues are, first, the absolute number who are harmed, not the proportion, and, second, the number who are persuaded not to take a given physical risk because of an entirely separate risk—the likelihood of arrest. In my view, if that second risk were removed, a substantial number of people would engage in harmful, abusive drug taking. (Why do the legalizers emphasize the dissuasive power of physical risk but ignore the power of the threat of arrest and imprisonment?) Not a majority, not even remotely close to Bennett and Pollin's tens of millions of Americans, but a substantial number. Seeing the American population as far more Dionysian than the legalizers do leads me to conclude that legalization will result in a significant rise in drug use and abuse.



A second piece of evidence relevant to the question of the impact of legalization on drug use bears on the effects of the drugs under consideration and the ways they are used. Although all drugs are by definition psychoactive, not all drugs are used in the same way; while all drugs are used for their pleasurable effects, the way that that pleasure is experienced and integrated into the lives of users is far from identical for all drugs; while all the psychoactive drugs possess a potential to generate a dependence in users, that potential varies enormously from drug to drug.
    The mechanics, logistics, and effects of each drug influence the degree to which it can be woven into everyday activities. The effects of cigarettes, as they are currently used, are mildly stimulating. Most users can continue to puff cigarettes more or less throughout the day without disruption—while working, studying, interacting, talking, driving a car, walking about, and so on (Kaplan, 1988, p.41). Only (as it turns out, a growing) social disapproval cuts smokers off from nonsmokers; in other words, the intrinsic nature of the use of the drug and its effects do not preclude their integration into routine living. Although alcohol is not quite so readily integrated into everyday life, in moderation, it is compatible with a wide range of pleasurable activities, it tastes good to most of us, it goes well with food, it is typically a lubricator of sociability; it does not usually isolate drinkers from nondrinkers except at the point of heavy consumption. Unlike many drugs, the effects of alcohol are linear; one does not have to be drunk or intoxicated to enjoy its effects. One can enjoy extremely mild effects of alcohol, whereas for some drugs (heroin, for instance), achieving only subeuphoric effects is more likely to be experienced as frustrating than enjoyable. As they tend to be used, most of the currently illegal drugs are taken specifically to get high; this is typically an all-or-nothing proposition.
    As a hypothesis it may be stated that the more readily a given form of drug use can be adapted to everyday life, other things being equal, the more popular it is likely to be. Contrarily, the more disruptive its use is, the less potential it has for widespread popularity. In contrast to cigarettes and, to a lesser extent, alcohol, drugs like heroin, crack cocaine and especially psychedelics such as LSD are highly disruptive drugs; their effects jolt the user out of routine activities and away from sociability with others, particularly nonusers. Using these drugs requires a much greater commitment to use and a much greater willingness to suspend whatever else one may wish to do, at least for a time. We may place marijuana and powdered cocaine midway along a continuum between cigarettes at one end and heroin, crack, and LSD at the other. Smoking marijuana and "snorting" or taking powdered cocaine intranasally are moderately disruptive, are usually confined to periods when the focus is more or less on getting high and enjoying oneself. Again, few users seek a mildly pleasurable sensation; most wish to become high or intoxicated. Hence, the use of these drugs will create an interactional barrier between the users and the nonusers—and often among users themselves. Thus, with respect to the connection between the way these drugs are used and their effects, tobacco is least disruptive to everyday life and requires the least commitment to use, while heroin and, most especially, crack cocaine and LSD stand at the opposite end of the continuum; they are highly disruptive and require a great deal of commitment to use regularly and frequently. Hence, legalizers predict, under legalization, heroin, crack cocaine, and LSD and the other psychedelics, could never attain the popularity of the currently legal drugs. Given the basic fact of the disruptive nature of heroin, crack cocaine, and LSD, it is almost inconceivable that they would be taken up on an abusive scale by more than a small fraction of users, even if they were to be legalized. Their use will remain marginalized and indulged in by a very small minority (Nadelmann, 1989, p.945).
    On the other hand, there is the issue of how reinforcing the drugs in question are, a factor which Bennett and Pollin stress in their predictions of use patterns after legalization. With respect to drugs, "reinforcement" refers, roughly, to how enjoyable a substance is, its capacity to deliver an orgasm-like jolt or "rush" of unmodified, undiluted, unsocialized pleasure. "Reinforcement" refers to the reward an organism achieves upon taking the drug and the commitment it has to continue taking it. To put the matter in more formal terms, the more reinforcing a drug, the harder an organism will work to continue taking it. The reinforcing potential of drugs can be determined even among nonhuman organisms; rats, mice, and monkeys find cocaine (and, to a lesser degree, heroin and amphetamine) immensely pleasurable; they will press a bar hundreds of times in order to receive a single dose of the drug. In a laboratory situation, they will take it as much as they can and will even risk their lives to do so. They will take cocaine in preference to food and water, and will even kill themselves, self-administering cocaine. Moreover, if they have taken cocaine over a period of time and the drug is suddenly discontinued, they will continue doing whatever they did previously that rewarded them with doses of cocaine, but now go unrewarded, for a longer period of time than for any other drug, including heroin (Bozarth and Wise, 1985; Clouet, Asghar, and Brown, 1988; Eckholm, 1986; Johanson, 1984). Psychologists regard whatever produces such slow-to-extinguish previously rewarded behavior as extremely reinforcing.
    In this respect, then, cocaine stands at the top of all widely used psychoactive drugs; it possesses the greatest immediate sensual appeal; this means that previously inexperienced subjects who are administered a range of drugs without knowing what they are being given are most likely to say they liked cocaine and most likely to say they want to take it again (Grinspoon and Bakalar, 1976, pp.191-194; Lasagna, von Felsinger, and Beecher, 1955). Most pharmacologists and psychologists now argue that psychological reinforcement, not physical dependence, is the key to dependence. Drugs that are highly pleasurable in a direct, immediate, sensual way are most likely to produce addict-like behavior in users, whether or not these drugs produce a literal, physical addiction, that is, withdrawal symptoms (Ray and Ksir, 1996, pp.40-42). In this respect, then, among all widely used psychoactive drugs, cocaine possesses the greatest potential for producing dependence.
    At the same time, we must be skeptical of any automatic extrapolations from laboratory experiments, whether on humans or animals, to real life. Wilbanks (1992) warns us against the "monkey model" of addiction—the fallacy of thinking that what monkeys in cages do with drugs automatically tells us everything we want to know about what humans will do on the street. After all, animals do not like the effects of alcohol or tobacco; it is difficult to induce them to take these drugs, use them, or become dependent on them. Yet we know that they are extremely widely used—and abused—among humans in their natural habitat.
    Still, laboratory experiments cannot be dismissed out of hand. They remind us of the potential for dependence that specific drugs possess. And cocaine possesses that potential in greatest abundance: It is most reinforcing, immediately pleasurable, appealing, sensual, and seductive. Remember, this is only one factor out of a range of factors that influence use. By itself, it does not dictate the popularity of drugs. But knowing this one fact about cocaine should make Bennett and Pollin's prediction understandable. I think they are wrong in the magnitude of that prediction, but it is not difficult to see how they came up with it. Again, regardless of the exact size of the predicted increase, other things being equal, the pharmacological properties of cocaine (and, to a much lesser extent, heroin) should lead anyone to predict an increase in use. There is, in other words, sufficient ground for genuine concern when it comes to sharply reducing the cost and increasing the availability of cocaine, given its intrinsically pleasure-inducing and reinforcing property. A great deal of contrary evidence would have to be marshaled to convince evidence-minded observers that cocaine abuse would not rise sharply under legalization—and, as yet, no such evidence has been forthcoming. In the absence of such evidence, most of us will have to remain convinced that, in the words of John Kaplan (1988, p.33), legalization "ignores basic pharmacology." It almost defies logic to assume that, when criminal penalties are removed, the use of an entire array of pleasurable, highly reinforcing drugs will not rise significantly.



What direct evidence do we have that bears on the impact of legalization on drug use? Contrarily, what evidence bears on the impact of the criminalization of drugs and enforcement of the drug laws on use? Does drug use/abuse rise when drugs are legalized and fall when they are criminalized? Or, as the legalizers assume, does law enforcement have little or no impact on the incidence and volume of use? What circumstances make drugs more, or less, available? Is there a variety of controls which influence use, and not merely legal ones? What does the use picture under nonlegal controls tell us about the impact of legal controls?
    We already know that national alcohol prohibition in the United States (1920-1933) did discourage use: Fewer Americans drank, and fewer contracted cirrhosis of the liver during Prohibition than before and afterward. (Prohibition brought about a number of other changes, as we saw, but they are separate from the issue of volume of alcohol consumption.) We also know that the partial decriminalization of small quantities of marijuana in nine states of the United States has not resulted in a significant increase in the use of this drug (Cuskey, Berger, and Richardson, 1978; Johnston, 1980; Single, 1981). It is entirely possible that marijuana is a case apart from cocaine and heroin. At any rate, cocaine and heroin are the drugs most Americans fear and worry about the most. A number of observers have endorsed the legalization of marijuana and yet oppose the legalization of hard drugs such as heroin and/or cocaine (Kaplan, 1970, 1983; Kleiman, 1992b). And the Dutch policy (often mistakenly referred to as "legalization") is based on making a sharp distinction between "soft" drugs such as marijuana and hashish and "hard" drugs such as cocaine and heroin (Beers, 1991; Jansen, 1991; Leuw and Marshall, 1994). Hence, the case for or against heroin and/or cocaine legalization will have to be made separately from the case for or against the legalization of marijuana.
    Several pieces of evidence suggest (but do not definitively demonstrate) that when the availability of certain drugs increases, their use increases as well. It has been something of a cliché among legalizers that criminalization doesn't work. Look around you, they say. Go to certain neighborhoods, and see drugs openly sold on the street. Drugs are getting into the hands of addicts and abusers right now. How could the situation be any worse under legalization? Those who want to use are already using; selling drugs to addicts, abusers, and users legally would not change anything, they say.
    The fallacy in this line of reasoning is that, currently, under our punitive policy, addicts and abusers are not using as much as they would like. Under almost any currently proposed legalization plan, the currently illegal drugs would be more available; if that were so, current abusers and addicts would use a great deal more cocaine and heroin than they do now. The fact that we can look around on the streets of the country's largest cities and see drug selling taking place means next to nothing. The fact is, there is the "hassle factor" to consider. Addicts are pulled into use by the fact that they enjoy getting high, but they are pushed away from use by the fact that they have to commit crime to do so. Street crime is difficult, risky, and dangerous; use is held down by that fact. If drugs were less of a "hassle" to obtain, the majority of addicts and abusers would use it more. The vast majority of heroin and cocaine abusers want to get high, are forced to commit a great deal of crime to do so, and are not getting high as often as they want because their drugs of choice are too expensive, and the crimes they commit are too much of a "hassle," for them to use as much as they want. Mark Moore (1973, 1976) refers to this as the "search time" for illegal drugs; says Moore, as "search time" goes up, demand decreases. Careful ethnographic and interview studies of street addicts and abusers have shown that getting high—not mere maintenance—is their prime motivation. Most are not technically addicted, their day-to-day use varies enormously, and most would use much more frequently if they could (Johnson et al., 1985; McAuliffe and Gordon, 1974). In this sense, then, the drug laws and their enforcement have cut down on the volume of drug use among a substantial proportion—very possibly a majority—of our heaviest users and abusers. Again, the distinction between relative and absolute deterrence comes into play here; these addicts and abusers use a substantial quantity of illegal drugs—but a great deal less than they would if these drugs were legal or freely available to them. Ironically, the drug laws are most effective against the drug use of the heaviest users, those, who, moreover, are arrested the most.
    Goldstein and Kalant (1990) base their opposition to legalization on the observation that use is directly related to availability, and availability can be influenced by a variety of controls, including criminalization and cost. Under all legalization plans, the currently illegal drugs would be sold or dispensed at a fraction of their present price. Indeed, that is the advantage of this plan, say its supporters, because the high cost of drugs leads to crime which, in turn, leads to a panoply of social harms, costs, and problems. But Goldstein and Kalant argue exactly the opposite: that the high cost of the illegal drugs is specifically what keeps their use down. If drugs were to be sold or dispensed at low prices, use would almost inevitably rise—in all likelihood, dramatically. This relationship is demonstrated, they say, with a variety of drugs in a variety of settings. For instance, as measured by constant dollars, cost and the per-capita consumption of alcohol—and the rate of cirrhosis of the liver—were almost perfectly correlated in a negative fashion in the Canadian province of Ontario between 1928 and 1974: During periods when the price of alcohol was low, the use of alcohol was relatively high; when the price of alcohol was high, use was relatively low. Price and use were mirror reflections of one another. In addition, observe Goldstein and Kalant, the purchase of cigarettes, and therefore smoking, varies directly and negatively with the level of taxation on cigarettes: The higher the taxes on cigarettes, the lower their sales. "These data suggest that anything making drugs less expensive, such as legal sale at lower prices, would result in substantial increases in use and in the harmful consequences of heavy use" (p.1515).
    There are two additional pieces of evidence bearing on the relationship between the availability of psychoactive drugs and their use: first, the immense rise in the use of and addiction to narcotics among servicemen stationed in Vietnam, and the sharp decline in use and addiction upon their return to the United States; and second, the higher rates of certain types of psychoactive drug use among physicians and other health workers—who have greater access to drugs—than is true of the population as a whole.
    Robins (1973) reports that almost half of a sample of U.S. military servicemen serving in Vietnam in the 1970s had tried one or more narcotic drugs (opium, heroin, and/or morphine), and 20 percent were addicted to opiates. Prior to their arrival in Vietnam, however, only a small fraction had ever been addicted, and after their return to the United States, use and addiction fell back to their pre-Vietnam levels. (This study cross-checked self-reports on drug use with urine tests; hence, we can have a high degree of confidence in the answers on use and addiction.) This study's findings are significant for at least two reasons.
    First, the fact that the vast majority of addicted returning veterans discontinued their dependence on and use of narcotics on their own, without going through a formal therapeutic program, has major implications for the study of drug treatment. And second, and more central for our purposes, the fact that use and addiction increased massively in Vietnam, where drugs were freely available (although technically illegal), and returned to their previous, extremely low levels when these veterans returned to the United States, gives us a glimpse of what may happen under legalization. The fact that 95 percent of those who became addicted in Vietnam had not been addicted in the United States, and a similar 95 percent who became addicted in Vietnam ceased their addiction when they returned to the United States, tells us that there must have been something about the conditions that prevailed in Vietnam that encouraged use and addiction, as well as something about those conditions that prevailed in the United States that discouraged them. Some observers have attributed the high levels of drug abuse that prevailed in Vietnam to the combat stress that these servicemen experienced (Gazzaniga, 1990), but it is unlikely that this is the whole explanation. It seems almost incontestable that the greater availability of drugs in Vietnam induced an enormous number of servicemen to use, and become addicted to, narcotics who otherwise would not have become involved. Their low level of narcotic addiction in the United States, both before and after their Vietnam experience, was almost certainly influenced by the fact that opiates are illegal here.
    There are three aspects of physician drug use that are significantly higher than is true for the population at large.
    First, as a number of studies have shown, the fact that recreational drug use among medical students and younger physicians is strikingly higher than among their age peers in the general population, again, suggests that availability is related to the likelihood of use. In one study, 73 percent of medical students had at least one recreational experience with at least one illegal psychoactive drug (McAuliffe et al., 1986). In comparison, for 18- to 25-year-olds in the general population at roughly the same time, the figure was 55 percent, and for 26- to 34-year-olds, it was 62 percent. For cocaine, the comparable figures were 39 percent for medical students and, in the general population, 18 percent for 18- to 25year-olds and 26 percent for 26- to 34-year-olds (NIDA,1991, pp.25, 31).
    Second, rates of self-medication among physicians are strikingly higher than is true among the general population. In the study of physician drug use cited above, four out of 10 physicians (42 percent) said that they had treated themselves with one or more psychoactive drugs one or more times, and 7 percent said that they had done so on 60 or more occasions; one-third of medical students had done so once or more, and 5 percent had done so on 60 or more occasions (McAuliffe et al. 1986, p.807). This represents an extraordinarily high rate of self-medication with psychoactive drugs.
    And third, the proportion of physicians reporting drug dependence is extraordinarily high—3 percent of physicians and 5 percent of medical students said that they were currently dependent on a psychoactive drug (McAuliffe et al., 1986, p.808), far higher than for the population as a whole. Other surveys have produced similar results (Epstein and Eubanks, 1984; McAuliffe et al., 1984; Sethi and Manchanda, 1980). While occupational stress, once again, has often been cited as the culprit which causes high levels of physician drug use, abuse, and dependence (Stout-Wiegand and Trent, 1981), as with the Vietnam situation, it is difficult to deny that availability plays a substantial role. And it is greater availability that every proposed legalization plan offers; to the extent that some "legalization" proposal does not offer availability, then clearly, at that point, as with the current system, illegal market processes take over.



As we saw earlier, legal drugs tend to have high continuance rates, while illegal drugs tend to have far lower continuance rates. That is, out of the total universe of everyone who has ever taken a given drug, the proportion who continue to use it (let's say they used it once or more in the past month) tends to be fairly high for the legal drugs and fairly low for the illegal drugs. As we saw, nearly six out of 10 of all at-least-one-time drinkers consumed alcohol during the previous month and can be said to still be drinking; for tobacco, the comparable figure is under four in 10. In contrast, for marijuana, the continuance rate is only 15 percent, and for most of the other illegal drugs, less than one at-least-one-time user in 10 used in the past month. The same relationship holds up in Amsterdam, where marijuana (but not the hard drugs) is de facto decriminalized and users and small-time dealers of the hard drugs are rarely arrested. There, alcohol's continuance rate is 80 percent, tobacco's is 63 percent, marijuana's is 24 percent, that of most prescription drugs falls somewhere in between tobacco's and marijuana's rates, and that of the illicit, criminalized drugs is under 10 percent (Sandwijk, Cohen, and Musterd, 1991, pp.20-21). The fact is, although many factors influence a drug's continuance rate, other things being equal, if a drug is legal, users tend to stick with it longer; if it is illegal, they tend to use it less frequently and more sporadically, and they are more likely to give up using it altogether. Clearly, then, it is simply not true that, under criminalization, illegal drugs are as freely available as are the legal drugs. Criminalization makes drugs more difficult to obtain and use on an ongoing basis; for many would-be regular users, the "hassle factor" makes use simply not worth it.

Chapter 9.   Drugs and Crime

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