(Ed note: This essay, from 2000, is even more relevant today. The original article can be found at: http://www.fee.org/Publications/the-Freeman/article.asp?aid=2189)
In determining the proper boundaries of government action consistent with a free society, it is instructive to explore whether drug prohibition is an appropriate response to actions that are clearly self-destructive to some. Following from concern over the harmful effects of drugs, the prevailing view is that government has a responsibility to protect its citizens from that harm through prohibition. Yet that position runs directly counter to the foundation and maintenance of a free society. Indeed, in today's context, drug prohibition represents one of the single greatest threats to our liberties.
Foremost to understanding the threat prohibition poses to liberty is a proper understanding of rights. According to the Declaration of Independence, we are endowed "with certain inalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness." The underlying assumption is that one's life is one's own. Thus the choices a person makes with his own life properly belong to him.
This principle is not hard to embrace. The idea that the individual owns his own life is accepted almost implicitly, especially in countries with a tradition of free thought and institutions, such as the United States. Yet it is a principle readily abandoned when it comes to drugs. Underlying the idea that government, and not the individual, has the right to determine what one may or may not ingest is the assumption that government, and not the individual, has ultimate authority over, and ownership of, life itself. Taken to its logical conclusion, this principle leads to slavery.
This does not mean government has no right to restrict and prohibit harmful behavior. But it must do so only to enhance and protect freedom of action. The old axiom that "my freedom to swing my arms ends where your nose begins" applies here. The essential point is that the individual has the right to do whatever he wants with his own life, since he has a property in that life, provided that he does not interfere with the same freedom of another.
With drug prohibition, the government attempts to coerce citizens into abstaining from something it deems harmful. This, in essence, is criminal behavior elevated to the status of law because it involves the initiation of force, or threat of force, against a class of citizens (illicit drug users) who are engaged in voluntary, non-coercive behavior. Moreover, the policy is doomed to failure as witnessed by the daily news reports on the government's drug war, which clearly show that the government will never be able to stop individuals from taking drugs short of imposing an Orwellian 1984 level of surveillance on its citizens. And judging from the ready availability of drugs in prison, even that is unlikely to work.
The bottom line is that "criminal" action implies a victim, where force, or the threat of it, is imposed on another. However, what the individual freely does to himself-such as taking drugs-does not constitute the imposition of force, and is therefore not a crime. On the contrary, it is the prosecution of the drug war that is the crime.
Some Pragmatic Considerations
The devastating impact of the drug war on society, along with its inevitable failure, is a consequence of its protagonists' failure to recognize a salient fact of human nature-namely, there will always be some individuals strongly driven to take drugs because they provide pleasure or block pain, and no legal sanctions, no matter how severe, will prevent that. Furthermore, the more draconian the drug enforcement the more draconian the consequences by every measure imaginable, from diminished civil liberty to increased violent crime.
Criminal activity normally involves no more than a small fraction of any given population. Yet when laws are dramatically at variance with the legitimate exercise of freedom, wide-scale disobedience is often the result. Such was the case with alcohol prohibition, conscription during the War Between the States and the Vietnam War, civil disobedience during America's civil rights movement, and general disregard for the national 55-mph speed limit.
Prohibition also fails to acknowledge the power of markets. By making a desired substance illegal, prohibition increases profitability by making the substance scarcer and more risky to handle. In the pursuit of self-interest, and in light of the enormous profits earned from the illicit drug trade, there will always be a plentiful supply of risk-takers willing to run the gamut of government interdiction efforts to meet the demand for drugs. Ironically, the scarcer drugs become because of prohibition, the more profitable they become for dealers and the greater the incentive to sell them.
Thus it is profit, and the pleasure derived from taking drugs, that thwarts the increasingly militant calls for an "all out" drug war. Not surprisingly, when government attempts to deny basic individual sovereignty, it must intrude with reckless abandon on other rights to enforce its objectives. Protection from unreasonable search and seizure, as guaranteed by the Fourth Amendment to the Constitution, is a prime target for the drug warriors. Calls for universal drug testing are beginning to surface, regardless of any concern for probable cause. Former New York Mayor Ed Koch and others have even called for shooting down planes merely suspected of carrying drugs.
Tragically, the war on drugs, allegedly being prosecuted to protect human life, has instead claimed many innocent lives. Take, for example, those caught in the crossfire between warring gangs of drug dealers fighting over turf, or trigger-happy drug-enforcement agents who raid the wrong homes and accidentally kill residents defending their families against violent assault. Additional fatalities in the drug war include deaths attributed to drug overdoses or poisoned drugs owing to the adulteration and unknown potency of drugs traded on the illicit market. The war on drugs has also become a significant factor in the spread of AIDS; almost 7,000 intravenous drug users a year have died of AIDS from sharing needles.
Despite this tragic loss of life, prohibitionists claim that legalization will result in a dramatic increase in use, thereby dwarfing the number of fatalities directly attributable to prohibition. However, considering that 80 percent of deaths from ingestion of heroin and cocaine is caused by their adulteration on the black market, leaving 20 percent who die as a result of factors that would exist after legalization, it would require a 400 percent increase in use to equal the current death toll. This is unlikely; at the end of alcohol prohibition, estimates of increased consumption have ranged from zero to 250 percent.
On the contrary, it could be argued that consumption of hard drugs such as heroin and cocaine would actually decline with legalization, especially among vulnerable youth in the inner cities. This is because tens of thousands of hard-core users would no longer be pushing drugs to non-users in order to make money to support their own habits, a common and well-known practice throughout the drug culture. When we look at how alcohol is marketed and distributed, we can see how legalization will put the neighborhood "pusher" out of business.
In addition to the death toll coming from prohibition, the costs related to drug enforcement are staggering. Since President Reagan launched his much-heralded "war" in the early 1980s, the United States has spent nearly $300 billion to stem the flow, with indirect costs put at $67 billion annually as government continues to beef up the budgets of law enforcement agencies and the military to prosecute the drug war.
The courts are so overwhelmed with drug cases that the administration of justice is being hampered to an intolerable degree. For example, in 1998 more than 400,000 Americans serving prison terms (one in four imprisoned) were doing so for drug offenses, up from 50,000, or one in ten, in 1980.
Prohibition also has the unfortunate consequence of corrupting law enforcement agents lured by the easy availability of huge sums of tax-free income in return for their cooperation in the drug trade. According to reporters Jack Nelson and Ronald J. Ostrow, "Law enforcement corruption, sparked mostly by illegal drugs, has become so rampant that the number of federal, state and local officials in federal prisons has multiplied five times in four years, from 107 in 1994 to 548 in 1998."
On the civil liberties front, the drug war has led to the property of non-drug users being confiscated without due process. In operations labeled "zero-tolerance," leased boats are searched (sometimes without satisfying the legal standard of probable cause) and then seized from their owners when even minute quantities of drugs are found onboard. Indeed, fully 80 percent of total asset seizures related to the drug war occur without a criminal charge being filed.
Another casualty in the war on drugs is legitimate scientific research with drugs such as LSD and MDMA. In addition, marijuana has been almost universally prohibited for use as a treatment for glaucoma, which leads to blindness, and for ameliorating the severe side effects of chemotherapy.
Denial of Individual Responsibility
Inherent in the prohibitionist position is the failure to recognize individual responsibility and autonomy as operating principles for an efficacious life. While taking drugs involves the freedom to engage in what may be self-destructive behavior, it also, and more importantly, involves the principle of allowing for life-enhancing activity. The freedom to fail is also the freedom to succeed, and vice versa. Ultimately, only the individual can determine what is in his best interest. While that is not a fail-safe mechanism, the alternative is tyranny. Drug prohibitionists embrace that alternative by presuming to know what is best for others, and in the pursuit of their vision of the good life they are willing to impose that vision on others by force.
To counter the argument for individual responsibility, prohibitionists claim that drugs necessarily hurt others and society at large. Discounting the preponderance of evidence that prohibition imposes a much greater cost on society than legalization ever could, the fact remains that even for those who use drugs in a life-threatening way, it is their lives that they threaten. Society, and even loved ones, do not have a property right in the life of the drug abuser. To assume otherwise is collectivism, pure and simple.
If prohibitionists were interested in consistency, their line of reasoning would take them down a path I doubt many of them would want to follow. Would they propose banning tobacco or alcohol consumption because of potentially harmful effects? How about high cholesterol foods? With heart disease being the single greatest killer of Americans today, are prohibitionists prepared to follow their own logic and ban bacon and eggs? And what about high-risk occupations and activities such as stunt-car driving, hang gliding, and motorcycling?
Assuming you could successfully ban such activities and substances, what would be the implications for the role that risk-taking plays in enhancing the enjoyment of life? While most people avoid risk in the realm of health or physical activity, others are drawn to it because it enriches their lives. The very essence of individuality implies that different people have different requirements in achieving happiness.
Drug prohibitionists, however, will claim that illicit drugs can never have any other effect than to debilitate and destroy. Yet even among the most dangerous drugs, "addiction" is far from guaranteed. Dosage has everything to do with a drug's potentially harmful affects, and if doses are low enough, and taken infrequently enough, no long-term or short-term ill effects will result.
Besides, the critical point, which cannot be emphasized enough, is that ownership of one's life entitles one to do with it what one chooses, even if that choice leads to self-destruction.
The Roots of War
In light of the futility in waging the war on drugs, what leads the government to pursue it and most Americans to support it? Part of the answer lies in the coercive nature of government itself. If war, as Randolph Bourne stated, is "the health of the state," then the American government is on a very healthy diet.
Since government is predicated on the use of force, it oft-times sees its reason for being in exercising it. If this power is used to protect rights, it is a benevolent force. But the temptation to abuse that power is sometimes irresistible. While the line between using government force in retaliation against initiators and being the initiator itself is a clear one, it is a line easily crossed.
There is also a need on the part of government to fight an enemy, take on a menace, and be the paternalistic guardian of the people. Indeed, if officeholders do not have the commodity of fear and the specter of menace to incite people to rally around them for support, they risk, in a democracy, repudiation at the polls from bored and fickle voters, and in a dictatorship, the violent overthrow of the government.
Hollywood and the media have certainly done their parts in feeding the current frenzy. Grisly news reports on the drug war and its victims boost ratings and provide ample grist for sensationalized TV specials and movies. This in turn creates the popular illusion that it is the drugs themselves that cause the violence and crimes associated with them, rather than their prohibition. Yet we have only to look back to the era of alcohol prohibition to identify the real source of drug-related violence. In the ten years following the end of alcohol prohibition, the murder rate from assault by firearms went down from a prohibition high of 16 per 100,000 of population in 1933 to less than nine per 100,000 by 1943.
America's drug war is also a manifestation of the historical pendulum swinging toward social conservatism. Operating in cycles that run on the order of 20 years, America is reacting to the social excesses of the 1960s. Sexual mores have become more restrictive, drinking is less socially acceptable, and smokers' rights have become severely circumscribed.
Indeed, the current trend-popular among both conservatives and "liberals" is to place under cultural and political assault activities that give pleasure and hold the potential for harm. The "safety at any cost" approach toward regulating consumer choices, championed by environmental and consumer activists such as Ralph Nader, is but one variant of the kind of government paternalism now in vogue.
America's puritanical heritage, while dramatically at variance with its heritage of political liberty, has endured as well as it has owing to the lure of messianic perfectionism. Few countries in the West are as "blessed" as the United States with the number and intensity of moral crusaders determined to use government to impose their moral values on others by force.
This puritanical impulse is enjoying a major resurgence in the United States. Historically, America has been a magnet for cultural extremes, ranging from the free love communes of the sixties to the abstinent Shaker communities of the early nineteenth century. In the history of the Western world, no other country embarked on the bizarre path of alcohol prohibition, despite alcohol's deep historical, cultural, and economic roots.
The U.S. Constitution and Bill of Rights have held America's crusading impulse in check. Nevertheless, it persists, ebbing and flowing as circumstance and public opinion dictate.
Another factor fueling the drug war is an undeniable increase in drug use, a trend that started in the sixties. Yet can the increase in any way correlate with the hysteria that has overtaken America in the decades that followed? Indeed, deaths attributed to drug use are but a small percentage of deaths related to alcohol and tobacco. And despite hyperbolic claims by politicians and the media over the threat that drugs pose to our society and culture, the economy continues to grow, life expectancies continue to increase, technological advances continue unabated, and Americans in all walks of life continue to build lives of meaning and value, both for themselves and their families.
The most tragic consequences related to drug use persist in America's inner cities. Yet here it is government paternalism that is the culprit, leading people without hope into lives of drug dependency. As the debilitating effects of welfare dependency strangle motivation and opportunity, the seductive lure of drug profits or the temporary relief that drugs bring provides a market for drugs that otherwise would not exist.
Where Do We Go from Here?
Predicting the future is always a risky business, but when it comes to determining what path Americans will choose concerning drug policy, both history and a proper understanding of human nature give us some guideposts.
People eventually tire of moral crusades. No matter how lofty or seemingly righteous, there comes a time when people's energy and direction must go elsewhere. For example, the wave of progressive reform that began at the end of the nineteenth century eventually burned itself out, to be replaced by the relative social liberalism of the roaring twenties. The strident anti-communism of the McCarthy era in the fifties gave way to the New Left that engulfed America's universities in the sixties.
But the real undoing of the drug war will be the eventual realization that government cannot alter human nature and that society is no longer willing to pay the price required, in money, social disruption, and reduced liberty, to prosecute this war. In the past decade especially, many prominent voices have been raised against prohibition, and no doubt many others will join them in the near future. Moreover, prohibitionists are finding themselves compelled to respond in public to the growing call for legalization to an extent that would have been unheard of ten years ago.
Yet until the current level of support for prohibition burns itself out, vigilance and the courage to speak out are required if we are to avoid the permanent establishment of new forms of government intrusion into our personal lives. That is the real threat facing us today.
Lance Lamberton is a communications professional who was the deputy director of the White House Office of Policy Information in the Reagan administration. Special thanks to Jerry Epstein of the Drug Policy Foundation of Texas for his assistance in researching this article. Copyright 2000.
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