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April 11, 2007 - The Observer (NY)

Column: Drug Prohibition - Lost Liberty, Money

By Stephen Kershnar, philosophy professor at SUNY Fredonia. His column appears every other week.

Return to Drug War News: Don't Miss Archive

As the Iraq War drags into its fifth year, there is a far more destructive policy that has been going on for decades, drug prohibition. This prohibition is offensive in at least in part because of its utter contempt for liberty.

In On Liberty (1859), John Stuart Mill put forth the harm principle which should be a basic tenet in a free society: state coercion is permissible only when it is necessary to prevent harm to others.

The idea is that the state shouldn't tell persons how to lead their lives. It shouldn't mandate what people believe, what religion they practice, what they eat, etc. This seems to capture why alcohol prohibition was such a bad idea. It was wrong because it involved a nanny-state government telling adults what harmless activities they may and may not engage in. However, unlike drug-nannies, the alcohol-nannies had some respect for American citizens.

While the Eighteenth Amendment banned sale and production of alcohol, it didn't ban personal consumption.

Some nanny-types argue that drug use isn't harmless because persons harm others through impaired driving, stealing to support their habit, drug-fueled violence, etc. There are a couple things to note about this argument. First, these activities are already illegal and can be combated by directly targeting them. In fact, the massive resources used to track down drugs might end up diverting resources needed to prevent violent crime.

For example, according to anthropologist Michael P. Ghiglieri, citing Bureau of Justice Statistics, in the 90's, only about 38% of murderers were sentenced to prison.

Second, if this argument warrants drug prohibition, it provides an even stronger case for alcohol probation. It's hard to imagine anyone who isn't a blood enemy of liberty wanting to criminalize alcohol again.

Third, if we allow the criminal law to protect against externalities, that is, when one person's conduct imposes costs on others, the state could mandate jogging, body weight, sexual practices, etc. The harm principle (when narrowed to focus on direct harm to others) is a bulwark against such an invasion of liberty.

For example, whether persons should be allowed to engage in gay male sex shouldn't depend on whether sodomy burdens the state-subsidized medical system.

Even if drug prohibition didn't involve a dizzying lack of respect for liberty, it probably doesn't pass a simple cost-benefit analysis.

A corollary to the harm principle is something like the following: before you restrict liberty, you should have convincing evidence that the benefits of doing so outweigh the costs.

The incarceration costs are staggering. A little background is helpful here. In 2005, the U.S. has 2.2 million people in prison.

This gives the U.S. the pride of being the world leader in both per capita imprisonment and total imprisonment. The U.S. has one quarter of the world's prisoners. A good deal of the problem is drug prohibition. Data from a 2005 Bureau of Justice study indicates that in 2003 roughly 22% of prisoners were there for drug crimes (20% of state prisoners, 55% of federal ones). Here is a back-of-the-envelope calculation of the state and federal incarceration costs.

The product of 484,000 prisoners (2005 estimate) and $45,000 per prisoner (incarceration costs plus lost income - note I made this number up) is $22 billion per year. The pain-and-suffering cost brought about when you lock half a million men in cages and separate them from their friends and families doesn't go into this number despite the fact that it's huge. There are also massive law-enforcement costs.

The federal drug control budget in 2006 was $12.5 billion. Since numerous state and local agencies also spend vast amounts of time and energy pursuing marijuana and other threats to the free world, one can imagine that the costs here are considerably greater than my low-end estimate of $34.5 billion.

Worthy of special contempt is the Drug Abuse Resistance Program (DARE) program. According to a 1998 study by Professors Ronsenbaum and Hanson of the University of Illinois at Chicago, DARE has no impact on the long-term rate of drug use by children who go through it. Other sources claim that this is the same result found in all major research into DARE's effectiveness. Despite the lack of evidence for its effectiveness, in 1996 it was administered in 70% of the nation's school districts, reaching 25 million students.

That year 44 foreign countries also used it. The costs for this program include not just wasted taxpayer money but also the lost education time.

Another significant cost is the shredding of the Constitution in pursuit of recreational drugs.

The Fourth Amendment prohibits unreasonable searches and seizures and allows warrants only when there is probable cause. Steven Duke of the CATO Institute points out that in the context of drug prohibition, the Constitution has been read to allow police to use the lower reasonable-suspicion standard to search our bodies.

He notes that the Constitution has also been read to allow police to search mobile homes, closed containers within cars, and cars without a warrant. It allows them to search open fields and garbage cans and to conduct close helicopter surveillance of persons' homes and backyards without warrant or cause.

In pursuit of drugs, he notes, the Constitution "now" allows people to be searched in their cars or in airports, trains or buses, and submitted to questioning and dog sniffs.

Drug prohibition likely decreases the frequency of addiction and some of the horrible results (violence, theft, and abandonment) that accompany addiction. At the same time, it eliminates some of the good times people would have by using drugs.

The same factors are present with alcohol.

In the absence of convincing evidence that the benefits of prohibition outweigh its costs, it's better to err on the side of liberty.

Locally, the costs are substantial. In Fredonia, the town picks up part of the costs of a police officer for the DARE program and the salary of an officer to participate in the Southern Tier Regional Drug Task Force. There is also a drug court in Dunkirk. On Fredonia's campus, there are administrative attempts to suspend students for possession and sale of small amounts of marijuana, although to be fair these don't always involve a first-campus offense.

There is an unsubstantiated rumor that local police offered to waive a marijuana arrest if the arrestee participated in drug-sting operations. If true, someone should be fired.

Like alcohol prohibition, drug prohibition tramples on liberty and doesn't clearly past the cost-benefit test. Sadly, it's probably here to stay anyway.

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