The Case Against Legalization

by M. A. Paarlberg

Maximum Rock n’ Roll #234, November 2002


“For every complex problem,” H.L. Mencken once said, “there is a solution that is simple, neat, and wrong.”  The problem, progressive-minded people agree, is the drug war.  Two million people are currently incarcerated in the US, nearly half a million for non-violent drug crimes, a disproportionate number of which are minorities.  Not to mention the gang-related violence and corruption that are fueled by the aggressive enforcement of drug laws.  All this because the government has designated certain substances to be dangerous to society, and therefore illegal, while our political system creates incentives for politicians to appear “tough on crime” by pushing for more draconian punishments for drug offenders.  The result is a costly, heavy-handed, and racist “War on Drugs” waged ferociously in the United States and, increasingly, in other countries as an extension of our foreign policy.


The obvious solution, then, is legalization.  Drug crimes don’t exist if drugs are legal, after all.  This is self-evident because all crime derives from law; that is, laws are what make certain activities criminal.  This makes perfect sense as long as one assumes that the only real problems associated with drugs are those caused by their illegality.  Drug prohibition creates drug crimes, so legalize drugs and, poof, no more crime.  However, it should be pointed out that no one makes the same argument for rape.


For a long time, people assumed legalization to be an exclusive concern of the Left.  Then, as the drug war escalated, public figures and institutions otherwise unsupportive or hostile to progressive issues began to voice their opposition.  “For the amount of money that we’re putting into the war on drugs…it is an absolute failure,” says Republican Governor of New Mexico Gary Johnson.  “The case for legalization is overwhelming.”  Economist Milton Friedman, the “father of neoliberalism,” is in favor of legalization.  So is William F. Buckley, Jr., editor of the National Review.  The Cato Institute, a leading right-wing think tank, is one of the most vocal critics of the drug war.  Support for legalization spans the conservative spectrum – from the fringe Right (The Libertarian Party has made ending the drug war #1 on its agenda, ahead of repealing the minimum wage and abolishing public education) to respected mainstream publications like the Economist, which ran a cover story in July on “The Case for Legalization.”


I work at a well-known left-wing public policy institute in Washington, DC that campaigns actively against the drug war.  Our testimonies and publications often cite bipartisan support for legalization.  Many progressives who tend to shield themselves from views they don’t agree with are surprised to learn about anti-drug war efforts on the Right.  Are we actually in the majority, they wonder?  Could the other side be coming around to our way of thinking?  Not surprisingly, the answer to both questions is no.


The Right’s support for legalization developed pretty much independently of the Left, having its own motives for embracing it.  This should really be no surprise, because legalization is a classic free-market position.  The most radical proposals for legalization invariably come from the most extreme circles of market fundamentalism – not from leftists, who generally favor some form of regulation.  Pundits on the Right view the drug war less in terms of unjust enforcement targeting millions of black men (though politically-savvy pundits pay lip service to it), and more in terms of an unfair restriction of trade.  Drugs are a lucrative business, so it must be a great frustration for corporations and their backers – especially those who already profit off of human misery and death such as the tobacco industry (one of the Cato Institute’s biggest financial supporters) – that they can’t get in on it. These companies would be the real beneficiaries of legalization; not, as some would like to believe, poor street hustlers, who would all be out of work.  James Ostrowski, in a 1989 Cato policy analysis “Thinking About Drug Legalization,” can barely contain his glee in imagining these “slick young drug dealers” being unemployed and having to look for real jobs.


As for the first question, drug legalization is still not a cause that enjoys broad popular support.  While awareness of the excesses of the drug war is growing, most Americans reject outright legalization of even soft drugs like marijuana.  In spite of the propaganda from both sides, most people recognize something that anti-drug war crusaders are slow to admit: that drug use itself causes many serious problems, which is why it was prohibited in the first place.  And to expect these problems to magically disappear once drugs are legal is simply foolish.


Everyone knows about the gang wars and police brutality.  But what about addiction, domestic violence, child abuse, the spread of disease?  The pundits who live in gated communities can safely ignore them, but for people who live in neighborhoods affected by drugs, they are a daily reality.  Furthermore, there is no reason to believe that these social ills would be no more prevalent with legalization.  In a ten-year study on “Drug War Heresies: Learning from Other Vices, Times, and Places,” researchers Robert MacCoun and Peter Reuter concluded that legalization would lead to reductions in drug-related crimes, but also to significant increases in drug use and addiction.  No convincing evidence suggest otherwise.  Legalization proponents often maintain that alcohol consumption did not dramatically increase after Prohibition ended; however, to compare a substance consumed by the vast majority of adults before and during Prohibition to crystal meth or even ecstasy is misleading.  Consumption of alcohol did remain low immediately after Prohibition, as there still remained a plethora of restrictions and taxes on alcohol sales.  Once those restrictions were lifted and mass marketing kicked in, consumption rates rose nearly 70% between 1940 and 1975.  As a nation, we are not predisposed to do anything in moderation.  This is why Europeans drink a glass of wine with dinner, while we drink a 30-pack of Rolling Rock in a night.  And advertisers have never hesitated to pander to Americans’ inclinations to binge.


These predictions are not blind speculation.  It’s basic economics.  Because prohibition keeps drug prices artificially high, legalization would cause prices to fall drastically, sparking an increase in demand, leading to a surge in the supply of drugs going to mostly poor and minority neighborhoods.  This is why people who listen to inner-city community activists, church leaders, or radical hip hop artists know that their chief concern is, in the words of Dead Prez, how to get crack out of the ghetto.  It’s not how to make crack cheaper and more readily available.  What our (mostly white, well-off) legalization proponents have yet to present is a comprehensive plan as to how we might actually get crack out of the ghetto, rather than simply pointing out that the “War on Drugs” isn’t helping.


More often than not, legalization proponents fall back on narrow philosophical precepts to back their arguments.  None have put it so eloquently as John Stuart Mill when he wrote, “The only purpose for which power can be rightfully exercised over any member of the community, against his will, is to prevent harm to others.  His own good, either physical or moral, is not a sufficient warrant.”  This is the concept of victimless crime: it’s my business what I put into my body, and if I want to be strung out on smack the rest of my life, it’s not your concern.  The problem is that this concept does not reflect how our society is actually governed.  Drunk driving is against the law, even though the act of driving drunk doesn’t hurt anyone by itself, it increases the likelihood that someone will be killed – even if it’s only the driver.  And in real life, every individual’s actions affect others, unless you live on a desert island.  Tell it to the child of an alcoholic parent that drugs affect only the user.


The philosophical defense is couched in appeals to personal freedom, using the same selective definition of freedom employed to justify the right of rich people not to pay taxes: a freedom from all social obligations.  When applied to drug use, however, the preservation of liberty is a dubious defense because the use of addictive drugs has the exact effect of restricting one’s personal freedom.  Addiction limits the choices and interests of drug users, directing their behavior toward scoring their next fix.  The idea of free exchange based on rational interests is as absurd for a heroin addict as it is for a starving person negotiating with a merchant for food.


Resisting the drug war is a worthy cause.  There can be nothing more detrimental to it than the wholesale disregard for the actual effects of drug abuse exhibited by many activists.  It is especially distressing to see it among those who claim to fight for social justice.  There is nothing progressive about defending the interests of those suppliers who are most responsible for the destruction of poor and minority communities – or, for that matter, supporting them financially by buying drugs.  Legalization should be recognized for what it is: a cause for corporate capitalists.  Progressives and radicals would do better to look for ways to put a stop to the many injustices of the drug war: an end to racial profiling and the criminalization of entire communities, treatment and rehabilitation instead of incarceration, and needle exchange programs.  Crime, however, will be with us as long as inequality exists, and is best addressed by efforts to build a more just and equitable society.


More than any other industry, the drug trade is a system of oppression and exploitation.  Drug abuse – that includes alcohol – is not a benign consumer choice, nor is it a byproduct of the law.  It is a social problem, with or without the drug war, and should be acknowledged as such.  The “War on Drugs” is no solution, and neither is legalization.