PROHIBITION AND LEGALIZATION: BEYOND THE FALSE DICHOTOMY

Intoxication and addiction weaken self-control, which leads some drug users
to engage in damaging behavior-behavior that would not occur but for their
drug use. Government efforts to restrict drug use swell public budgets,
restrict liberty, and encourage black markets. So both drugs and drug policy
can be harmful to the public good. To my mind, that makes drug policy an
optimization problem. The goal is to find a drug policy that maximizes the
difference between the benefits of reduced use and the various costs of
achieving that reduction.

Drug policy is not currently formulated with this purpose in mind. One
reason is that the goal is not universally accepted. Some, based on
libertarian grounds, believe that drugs should be legalized regardless of
the resulting costs and benefits. Others agree that cost-benefit
considerations are inappropriate, but for a different reason. In their view,
drug use is simply wrong. It is surely the case that those who hold these
opposing views receive disproportionate airtime in debates over drug policy.
Uncomplicated positions are always an easier sell, especially when people
are hungry for a "solution" to an intractable problem. Those who view drug
policy as a complicated balancing act face a much tougher sales job.

Partly as a result of the exposure given to legalizers and drug warriors,
drug policy is often seen as a singular choice between prohibition and
legalization. This is a classic false dichotomy. No sharp line distinguishes
prohibition from decriminalization or regulation (which is what legalization
advocates say they are for). All approaches limit the legal access to drugs,
and the practical implementation of any scheme is far more important than
its nomenclature. Cocaine use is more restricted than marijuana use, but if
you looked only at drug listings under the Controlled Substances Act, you
might reach the opposite conclusion. Cocaine has a "currently accepted
medical use"; marijuana does not.

The excessive focus on legalization and prohibition as policy alternatives
distracts attention from more pragmatic discussions of drug policy. But drug
policy discourse is also hampered by those who consider themselves
pragmatists. All too often, self-proclaimed pragmatists are either unaware
of or unwilling to admit the drawbacks of the policies they advocate. On one
side, those who claim to advocate decriminalization or legalization on
cost-benefit grounds rarely acknowledge that making it easier, cheaper, and
safer to buy drugs is likely to significantly increase use. Legalizers will
not pay attention to me when I challenge their forecasts, but perhaps they
will listen to libertarian journalist P. J. O'Rourke, who is sympathetic to
their cause:

"Then there's the argument that if drugs were legal, the free market would
somehow keep people from taking them. Steven Duke and Albert Gross, authors
of America's Longest War. Rethinking Our Tragic Crusade Against Drugs, claim
that the number of drug bums wouldn't increase, because "the use of heroin
and cocaine in a free-market system would adversely affect the quality of
the lives of the users." Am I missing something about the current
non-free-market system? Is there a special Joy-Popper Visa card that gives
me frequent-overdose discounts?

Legalizing drugs will lower their price, the more so if price is measured
not only in dollars but also in time spent with dangerous maniacs in dark
parking lots, not to mention time spent in jail. If drugs turn out to be a
case study showing that price has no connection to demand, every economics
textbook will have to be rewritten. This will be an enormous bother-if all
the economists are stoned (O'Rourke, 2000: 37)."

Drug warriors who assert that their hawkish stance is pragmatic, not
ideological, suffer from a different kind of denial. They will not accept
that because drug dealers who exit the trade are easily replaced,
imprisoning drug dealers has little effect on the supply of drugs. Like
legalizers, drug warriors probably will not listen to me when I criticize
their analytical thinking, but perhaps they will consider what recent Bush
appointee and crime scholar John Dilulio has to say. Writing with colleague
Anne Piehl, Dilulio stated that "we believe the best estimate of the
incapacitation effect (number of drug sales prevented by incarcerating a
drug dealer) is zero" (Piehl and Dilulio, 1995: 245).

That suggests that one step toward rationalizing drug policy would be to
reduce sentences for drug offenses. Although this would be an important
step, it should be noted that such a change might have little effect on
total imprisonment. Despite what we often hear, the war on drugs has not
been the driving force behind the explosion of prison populations. From 1991
to 1997, the nation's prison population increased by 50 percent, but drug
offenders accounted for less than a quarter of that growth (Pastore and
Maguire, 2000: table 6.38). (It would be more accurate to say that we have
had a war on crime than a war on drugs.) And bear in mind that because most
drug dealers commit other offenses, a reduction in drug incarcerations will
tend to lead to an increase in incarcerations for non-drug offenses. In any
case, it is better to incarcerate a drug dealer-cum-robber on robbery
charges than on drug charges. The case for imprisoning robbers is more
compelling than the case for imprisoning drug dealers.

While efforts to reduce the supply of drugs should be scaled back, efforts
to limit demand should be stepped-up. Demand reduction should begin with the
recognition that drug use is unequally distributed among users, as are the
negative consequences of drug use. The heaviest cocaine and heroin users are
responsible for the bulk of consumption, as well as a disproportionate share
of income-generating crime. (The RAND Inmate Survey found that the most
active 10 percent of offenders accounted for the majority of robberies and
burglaries. [Visher, 1986].) These criminally active users must be the
primary focus of demand-reduction efforts. Treatment programs are helpful,
but as Mark Kleiman explains in his discussion paper, a combination of drug
testing and sanctions is likely to be more effective. The most promising
approach to reducing drug use among criminally active users is to subject
probationers and parolees to regular drug testing, imposing immediate and
brief (two-day) incarceration for failed or missed tests.

References:

O'Rourke, P. J. "My Problem with the War on Drugs." Rolling Stone (January
20, 2000).

Pastore, Ann L., and Kathleen Maguire, eds. Sourcebook of Criminal Justice
Statistics 1999. Washington, D.C.: Bureau of Justice Statistics, 2000.
Piehl, Anne Morrison, and John J. Dilulio. "`Does Prison Pay?' Revisited."
Brookings Review 13 (Winter 1995).

Visher, Christy A. "The RAND Inmate Survey: A Reanalysis." Criminal Careers
and "Career Criminals. "Vol. II. Eds. Alfred Blumstein, Jacqueline Cohen,
Jeffrey A. Roth, and Christy A. Visher. Washington, D.C.: National Academy
Press, 1986: 161-211.