Chapter Five: The Lessons of Prohibition and Drug Legalization

DISCUSSION

I. Their Argument

Proponents of legalization suggest that the United States experience with alcohol prohibition in the 1920's provides ample proof of the problems that result when the government attempts to make a popular substance illegal. Legalizers point to ostensible increases in organized crime such as that associated with Al Capone in order to make their point. Basically, they say, it is better to legalize, tax and regulate than simply to declare drugs illegal.

II. Our Argument

The legalizers' arguments here are deeply flawed and merit two primary responses: first, the circumstances surrounding Prohibition are so different than those of today's world that it practically is impossible to use its history as a means of analyzing present-day policy; second, Prohibition was in fact successful and did not create the negative consequences that the legalizers say it did.

But to the first point. David Teasley, an analyst with the Congressional Research Service of the Library of Congress, undertook an in-depth analysis in 1992 entitled, "Drug legalization and the 'lessons' of Prohibition." Teasley ultimately concluded that

[A] comprehensive analogy between Prohibition and the modern drug problem is problematic in at least two major ways. First, between the two eras there are significant differences that tend to undermine the prolegalization analogy. Second, many arguments of the prolegalizers are weakened by their reliance upon a widely held set of popular beliefs about Prohibition rather than upon recent historical evidence. Such attempts to create this analogy based upon these popular beliefs about Prohibition serve only to confuse the debate over legalization of illicit drugs.97

Let us examine the differences that Teasley (and others) cite between the era of Prohibition and the era in which we now live.

First, during prohibition the government sought to restrict the consumption of alcohol although it lacked the moral consensus of the nation. That is, even during Prohibition, most people were accepting of alcohol.98 Such is not the case today, for the vast majority of citizens do feel that illicit drugs should remain illegal [see Chapter Eleven]. Thus, Prohibition went against the national consensus whereas illegalization of drugs does not.

Second, the laws of Prohibition themselves were different than those dealing with illicit drugs today. During Prohibition, it was not illegal to drink alcohol, it was only illegal to sell it. Today, however, it is both illegal to sell and to use illicit drugs. Consequently, today's laws can target the users while those of the Prohibition era could not.99

Third, during the Prohibition era several states did not support the federal laws. This fact created tension between the state and federal governments and hampered effective prosecution of alcohol distributors. Today, 48 states have signed the Uniform Controlled Substances Act, and all are in effective agreement with the federal government in matters of drug policy - a state/federal consensus exists that was not present during Prohibition.100

Fourth, criminal penalties are much more severe today than in the 1920's. For example, the first-offense bootlegger faced a maximum fine of $ 1,000 or six months in prison. Today, a first-offense trafficker of cocaine or heroin (of less than 100 grams) faces fines up to $1 million and imprisonment for up to 20 years.101

Fifth, during Prohibition the United States was a "dry" nation within a "wet" international community. Just as the Prohibition policies were counter to the moral consensus within the U.S., they were also at odds with that of the international community (which explains why so much alcohol was imported from Canada). But as discussed in Chapter Three, the international community is resolute when it comes to drug policy; in December of 1988 over 80 countries signed the Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.102 Sixth and finally, the administrative structure of the government agencies designed to carry out the Prohibition laws was narrow, unstable, and filled with political appointees. Today's national drug strategy involves over a dozen federal agencies coordinated by the Office of National Drug Control Policy. In short, the governmental bodies that prosecute today's drug violators are much larger, have much better resources, and are much more professional than their Prohibition counterparts.103

Thus, it is factually incorrect for the legalizers to analogize our history with Prohibition to today's drug policies. They simply do not have that much in common. But should the legalizers choose to make such an analogy, they also should be made aware of the fact that Prohibition was on balance a successful program.

First, use of alcohol decreased significantly during Prohibition.104 This decrease in turn lead to a marked decrease in the incidence of cirrhosis of the liver.105 Also, alcohol-related arrests decreased 50%. 106 Finally, the suicide rate also decreased by 50%.107

A second reason why Prohibition was a successful program is due to the fact that it did not -- contrary to popular myth -- cause an increase in the crime rate. It is true that there was an increase in the homicide rate during Prohibition, but this is not the same as an increase in the overall crime rate. Furthermore, the increase in homicide occurred predominantly in the African-American community, and African-Americans at that time were not the people responsible for alcohol trafficking.108 The drama of Elliot Ness and Al Capone largely was just that, drama sensationalized by the media of the time.

In short, it is doubtful that one legitimately may analogize Prohibition with our current efforts to control drugs. There are too many differences in the laws, the political establishment, the moral consensus, and the international community to make such analogizing worthwhile. Nonetheless, the fact remains that Prohibition accomplished many of its goals, improved the health of the entire nation, and did not cause a significant increase in the crime rate. Mark Kleinman, who has proposed legalizing marijuana109 notes, the U.S. experience with Prohibition is the best evidence to support the continued illegalization of illicit drugs.110

97 David L. Teasley, "Drug legalization and the 'lessons' of Prohibition," Contemporary Drug Problems, Spring 1992.

98 Robert E. Peterson, "Stop Legalization of Illegal Drugs," Drug Awareness Information Newsletter, July 1988.

99 David L. Teasley, "Drug legalization and the 'lessons' of Prohibition," Contemporary Drug Problems, Spring 1992.

100 Id.

101 Id.

102 Id.

103 Id.

104 Id.

105 Charles Krauthammer, "Legalize? No, Deglamorize," The Washington Post, May 20,1988.

106 Robert L. DuPont, "The Case Against Legalizing Drugs," Drug Awareness Information Newsletter.

107 Robert Stutman, "Reasons Not to Legalize Drugs," Drug Awareness Information Newsletter.

108 David L. Teasley, "Drug legalization and the 'lessons' of Prohibition," Contemporary Drug Problems, Spring 1992.

109 Mark A.R. Kleiman and Aaron J. Saiger, "Drug Legalization: The Importance of Asking the Right Question," Hofstra Law Review Vol. 18, 1990.

110 Letter from John C. Lawn to Joseph E. DiGenova, Drug Enforcement Administration, June 3, 1988.

Chapter Five Summary Sheet: The Lessons of Prohibition and Drug Legalization

If they say...

The lessons of Prohibition can be used to analyze the present policies, prohibition in illicit drugs.

Then you say...

Whereas there was not a moral consensus for Prohibition U.S. citizens overwhelmingly are in favor of the the continued illegalization of illicit drugs. [Robert E. Peterson, "Stop Legalization of Illegal Drugs;" Drug Awareness Information Newsletter, July 1988].

During Prohibition, only the sale, and not the use, of alcohol was illegal. Today, both sale and use of illicit drugs are illegal. Consequently, present drug policies can target users whereas Prohibition laws could not. [David L. Teasley, "Drug legalization and the 'lessons' of Prohibition," Contemporary Drug Problems, Spring 1992].

During Prohibition, there was much tension between federal and state alcohol policy. Today, 48 states have signed the Uniform Controlled Substances Act, and the federal and state governments work in concert. [David Teasley, citation above].

During Prohibition, criminal sanctions were not extreme - a first-time bootlegger could receive a $1,000 fine or six months in prison. Today, fines for first-time cocaine or heroin trafficking are up to $1 million and prison sentences go as high as 20 years. [David Teasley, citation above).

During Prohibition, the U.S. was a "dry" country in a "wet" international community. Today, almost all countries are in agreement that drugs should be illegal, as witnessed by the fact that 80 countries signed the 1988 Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. [David Teasley, citation above].

The political administration responsible for enforcing Prohibition was small, underfunded, and unprofessional. In contrast, the current drug control program is run by over a dozen agencies coordinated by the Office of National Drug Control Policy. [David Teasley, citation above].

If they say...

Prohibition caused more harm than good.

Then you say...

During Prohibition, alcohol use declined significantly [David Teasley, citation above].

During Prohibition, incidence of cirrhosis of the liver decreased by 35%. [Charles Krauthammer, "Legalize? No, Deglamorize," The Washington Post, May 20, 1988].

During Prohibition, the suicide rate decreased 50%. [Robert Stutman, "Reasons Not to Legalize Drugs," Drug Awareness Information Newsletter].

During Prohibition, the incidence of alcohol-related arrests also declined by 50% [Robert L. DuPont, "The Case Against Legalizing Drugs," Drug Awareness Information Newsletter].

Contrary to popular opinion, the crime rate did not markedly increase during prohibition. What did increase was the homicide rate (not the same as the overall crime rate) among African-Americans. And African-Americans had little to do with alcohol trafficking. [David Teasley, citation above].

Mark Kleiman admits that the U.S. experience with Prohibition is one of the strongest arguments in favor of the continued illegalization of illicit drugs. [Letter from John C. Lawn to Joseph E. DiGenova, Drug Enforcement Administration, June 3, 1988].