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.

 

Prohibition

    Criminal prohibition is fundamentally different than regulation; the law decrees manufacture, sale, possession or use of specified substances to be a crime—therefore, 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 such—only 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 drug markets.
    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 consumption—all 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 of folly.