American laws about recreational drug use are a mess.
Americans rot in prison for using or selling marijuana, which is relatively harmless. They rot in prison for selling cocaine and heroin, which aren’t harmless but harm mainly heavy users, and which are less harmful than cigarette smoking, which is legal.
Recreational drugs are immensely profitable mainly because they are illegal. The profits tend to corrupt the underpaid staffs of police and other law enforcement agencies. Those law enforcement officials who aren’t taking bribes from drug kingpins choose, instead, to take the Constitutional rights of people who engage in personal drug use.
Can We Do Better?
The correct policy response to the widespread use of psychotropic drugs is not a simple issue. The two extremes of the debate over drug policy seem biased on one hand by ideology and on the other hand by psychology:
- Libertarianism rejects any legal limitations on personal conduct. This view endorses repeal of all laws against manufacture, sale, or use of psychotropic drugs. Because of their ideology, libertarians minimize or ignore the harm that drug use can cause to users, to other people, and to society.
- Social conservatism seems preoccupied by sin: in particular, by the sinful conduct of other people. This view supports extensive legal prohibition, iron-fisted enforcement, and merciless punishment of those perceived as sinners. Because of their psychology, social conservatives exaggerate the immorality of drug use and the harm it can cause to users, to other people, and to society.
History can also inform our assessment. It provides arguments for two propositions, each of which leads to a different conclusion about drug policy.
All societies forbid some drugs and approve others
All societies throughout history have used psychotropic drugs. As psychiatrist Thomas Szasz documents in his classic book Ceremonial Chemistry (Syracuse University Press, 2003), societies have considered some drugs to be wicked and have persecuted their use. Other drugs, often quite similar, were considered virtuous and their use was encouraged. Often, the same drugs appeared at different times in both categories. This suggests that classifying drugs as sinful or virtuous is irrational, as is persecution of drug use.
Political resistance to drug legalization tends to confirm the role of irrationality in the debate:
Legalization has been a politically weak but intellectually powerful influence in American life for the last decade. Its criticism of the current regime has a great deal of truth in it. … Arrayed against them, but with a curiously weak representation in the academic and intellectual community, are all the forces of political power.
(MacCoun and Reuter, Drug War Heresies, location 114 of ebook. Cambridge UP, 2001)
Henry David Thoreau wrote, accurately, that “Most men lead lives of quiet desperation.” If using drugs helps people to endure life’s difficulties with a modicum of contentment, then that argues for letting them do it unmolested. Sigmund Freud held the same view of alcohol. Perhaps the most poignant argument for letting people use psychotropic drugs was given, in another context, by the American writer Mark Twain:
Life was not a valuable gift, but death was. Life was a fever-dream made up of joys embittered by sorrows, pleasure poisoned by pain … But death was sweet, death was gentle, death was kind; death healed the bruised spirit and the broken heart, and gave them rest and forgetfulness; death was man’s best friend. When man could endure life no longer, death came and set him free.
(Letters from the Earth, Letter X)
People take psychotropic drugs to “set themselves free” of life’s inevitable sorrows and frustrations. One can argue that they shouldn’t have to die for it.
All societies have scapegoats
At the same time, all societies throughout history have seemed to need scapegoat groups toward which members of the majority direct the anger and frustration of their own lives. Sometimes the scapegoats are religious, sometimes ethnic, sometimes selected by particular practices such as the use of forbidden drugs.
A realistic assessment must consider the possibility that persecuting drug users acts as a social safety valve. Though it is an admitted evil, it might provide a less destructive and less expensive social catharsis than its alternatives, just as Edward Jenner discovered that deliberately infecting people with cowpox (by vaccination) protected them from the much more serious disease of smallpox.
This argues for continued drug prohibition, though the specifics – which drugs, how they are prohibited or discouraged, and what kind of penalties attend their use – make a great deal of difference.
The Libertarian View
The libertarian view has undeniable merits. Mindless drug prohibition does increase crime, both by inducing some users to commit crimes for money to buy drugs and by causing violent resolution of conflicts between people who lack access to the courts. It ruins the lives of people whose only crime is seeking a temporary, drug-induced escape from their problems. It degrades the rule of law and corrupts police. Like earlier prohibition efforts, it disproportionately affects disfavored minorities. As Booker T. Washington wrote in 1912:
In the agitation of the liquor question incident to the attempt to pass prohibition laws in Georgia, Alabama, and other Southern States, a great deal was said about the relation of strong drink to crime, particularly crime among [forbidden word]s. This is a very important subject, because from two-thirds to three-fourths of prisoners in the penitentiaries, jails, and chain gangs in the South are [forbidden word]s.
(“[Forbidden Word] Crime and Strong Drink,” Journal of the American Institute of Criminal Law and Criminology 3:3, September 1912, pp. 384-392)
The more things change, the more they stay the same. Crime is the same. So is censorship, since we’re now forbidden even to quote words that offend woke sensibilities.
However, the libertarian view is unrealistic because it assumes that people act rationally: a quality that they display inconsistently even under ideal conditions, and which drug use makes more difficult. It also assumes an atomistic view of society in which individuals’ actions do not significantly affect others and in which they have no obligations to others beyond non-aggression.
The Social Conservative View
Apart from its obsession with sin and punishment, the social conservative view is closer to the truth than the libertarian view. Doing nothing about widespread use of psychotropic drugs is not an option. However, what we do should be informed by three considerations:
- All drugs are not alike. Drugs differ widely in the harm they cause to users, to other people, and to society.
- All drug users are not alike. As with alcohol, the majority of drug users are casual and occasional users. Only a minority are habitual or addicted users.
- All legal and social sanctions are not alike. They can range from mild (such as fines or social disapproval) to draconian (such as long prison sentences or execution of drug dealers).
What Should We Do?
Our goal is to minimize the harm that drug use and illegal trafficking cause to users, to other people, and to society. However, we want to avoid remedies that in themselves cause excessive harm, such as degrading the rule of law, violating individual rights, or inflicting disproportionately severe punishments for relatively minor transgressions.
Having concluded that “Yes, we are going to do something to regulate psychotropic drug use,” we can now address the question: What should we do?
Domestic and international anti-drug efforts are not mutually exclusive. It’s quite possible to take some measures that reduce drug production in source countries, and take other measures to regulate drug use domestically.
American anti-drug efforts in other drug-producing countries are not very cost-effective, though some are less unhelpful than others. As Kleiman, Caulkins, and Hawken observe in Drugs and Drug Policy: What Everyone Needs to Know (Oxford University Press, 2011):
Interdiction has had greater success than crop eradication, which in turn is more likely than alternative development to disrupt availability in final-market countries.
However, they conclude:
[The desire] to get to the root of drug problems by stopping drug production in source countries … is based on the illusion that the drug problem is caused by the drugs – which can be seized and destroyed – rather than by the desire for those drugs and the industry that arises to meet that desire.
It is also true that many drugs can be grown or produced domestically, so attacking their production in other countries has little effect on their availability in the United States. It is also not irrelevant that the U.S. military is already over-extended and the U.S government budget is severely strained. Overall, anti-drug efforts in other countries are a poor choice.
That leaves domestic policy as a tool to reduce drug-related harm.
Thinking Outside the Box for Domestic Policy
Most discussions of drug policy ignore one important alternative. There is a way to reduce drug-related harm that falls between the extremes of doing nothing and doing too much. It’s unfashionable, largely unknown except as a rhetorical device, and little understood in the 21st century, but was a central feature of America’s Constitutional system: Federalism.
Federalism holds that power and decision-making should be decentralized as much as is practical. It holds that if an issue can be handled adequately at the local or state level, then it is not an appropriate concern of the national government.
Some issues are clearly federal concerns: basic civil rights, international commerce, war, crimes that cross state lines, and so forth. However, for both philosophical and practical reasons, many other issues are better left to state or local jurisdictions.
The premier example of such an issue is abortion. The 1973 case of Roe v. Wade, which launched our national frenzy about the issue, is usually misunderstood. It did not legalize abortion, which was already legal in some states and illegal in others. What Roe did (on dubious Constitutional grounds) was to strike down most state laws restricting abortion. That raised what had been a state and local issue to the federal level. From the standpoint of practical politics and social harmony, that change caused most of the problems.
Abortion is a bitterly divisive issue mainly because Americans cannot reach a national consensus on the correct legal solution. However, achieving consensus at the state or local level would be much easier. California, New York, and other majority-liberal states would probably have few if any restrictions. Illinois might have some restrictions on a procedure that was generally legal. Utah might ban abortion completely. On both sides of the debate, zealots would be dissatisfied, but the national acrimony about abortion would be over.
Likewise, a big part of the American problem with illegal drugs comes from the inability to achieve a national consensus. The division of opinion is not geographically divided as much as it is for abortion, but has a geographic component. Achieving consensus would be easier at the state or local level than at the national level, where it is virtually impossible.
A first step, then, would be for the federal government to cede most drug policy choices to the states. Based on majority opinion of its citizens, each state would enact drug policies best suited to its own situation.
What States Might Wisely Do
Of course, that still leaves unanswered the question of what states should do about the use of psychotropic drugs.
We must accept the fact that no solution will be perfect. Regardless of what we do, some people will abuse drugs. Some people will be killed by them. Some minors will get them.
The French philosopher Voltaire wrote that “The perfect is the enemy of the good.” By pursuing unattainable perfect solutions and refusing to consider attainable good solutions, U.S. drug policy has done enormous harm both to America and to other countries.
In summary, here are my recommended “good solutions:”
- Marijuana and similar drugs: Ignore them except when their use causes other problems, such as driving while intoxicated. Treat them in essentially the same way as alcoholic beverages. Prohibit their sale to minors. They have low addiction potential and are relatively (though not completely) harmless. Most of the harm comes from enforcement efforts.
- Cocaine, heroin, and similar drugs: Sell them through government dispensaries to addicts and incorrigible heavy users who cannot or will not quit using them. Include medical monitoring. After a speedy (and fair) trial, promptly execute anyone found guilty of selling cocaine or heroin on the black market. Such drugs have high addiction potential and can cause serious physical harm. Current enforcement efforts add to the damage through violence, corruption, and impure street drugs.
Executing cocaine and heroin dealers while providing users with the drugs in a regulated way, would also preserve the function of drug sellers and users as social scapegoats. It would thereby decrease the likelihood of even more serious social and political pathology.
What the Federal Government Can Do
To the extent that it is still functioning in any positive way, the federal government can have a role in discouraging the use of psychotropic drugs. It is limited but, over the long run, it might be more effective than enforcement efforts.
The most obvious role for the federal government is to prosecute interstate crimes that involve drugs, just as it now prosecutes crimes that would otherwise be local if one of the perpetrators hadn’t crossed a state line in committing them. The federal government can also adjudicate disputes between states about drug policy related issues.
However, what might be the federal government’s most powerful role has less immediate effect. The British philosopher Bertrand Russell, two-time Nobel laureate, wrote:
Give me an adequate army, with power to provide it with more pay and better food than falls to the lot of the average man, and I will undertake, within thirty years, to make the majority of the population believe that two and two are three, that water freezes when it gets hot and boils when it gets cold, or any other nonsense that might seem to serve the interest of the state … Any verbal denial of the mystic doctrine would be made illegal, and obstinate heretics would be ‘frozen’ at the stake. No person who did not enthusiastically accept the official doctrine would be allowed to teach or have any position of power. Only the very highest officials, in their cups, would whisper to each other what rubbish it all is; then they would laugh and drink again.
(Unpopular Essays, Routledge Classics, 2009)
As demonstrated by its terror campaign about Covid-19, the federal government still has enormous power to shape American public opinion. However, in the case of drug policy, it has exercised that power either clumsily or not at all.
An example of successful propaganda is the government’s use of the entertainment industry to promote its military agenda.
Most Americans are unaware that the U.S. Department of Defense has “script approval” rights over the majority of American war movies. Consistent with the First Amendment, the government does not prohibit movies opposing U.S. military actions. However, in exchange for control over movie content, the Pentagon offers “free” use of military aircraft, locations, hardware, and other assistance. As a result, movies that portray government policies in the most positive light are cheaper and more realistic. Moviegoers never realize that they are paying to watch propaganda.
For the most part, Americans are subjected to the opposite kind of propaganda about the sale and use of psychotropic drugs. Popular movies and television shows portray drug dealers in a mostly positive light, and drug use as mostly harmless. Others portray cocaine use as trendy and fashionable, much as popular 1960s television shows featured characters who smoked cigarettes almost non-stop throughout each episode.
The propaganda pendulum has now swung to the opposite extreme for cigarettes. As a result, smoking has become less popular and smokers are seen as social lepers. Movies and television shows must get special permission to show characters smoking cigarettes.
The same thing can be done with drugs that have high risk of causing harm. Along the same lines as its military and Covid-19 propaganda, the federal government could offer incentives for entertainment providers to convey anti-drug messages. It would take time for Hollywood to accept and transmit the message, and more time for public attitudes to change. But changing public attitudes is the best, even if imperfect, thing that the federal government can try to do in drug policy.
In this world, there are no perfect solutions. But American drug policy ignores a lot of good ones.