DRUG LEGALIZATION HAS PITFALLS

No Panacea

Malibu, California.

The current Senate deliberation over aid to Colombia aimed at fighting
narcotics reminds us that there are two debates over how the government
ought to deal with dangerous drugs. The first is about their illegality and
the second is about their control. People who wish to legalize drugs and
those who wish to curtail their supply believe that their methods will
reduce crime. Both these views are mistaken, but there is a third way.

Advocates of legalization think that both buyers and sellers would benefit.
People who can buy drugs freely and at something like free-market prices
would no longer have to steal to afford cocaine or heroin; dealers would no
longer have to use violence and corruption to maintain their market share.
Though drugs may harm people, reducing this harm would be a medical
problem, not a criminal-justice one. Crime would drop sharply.

But there is an error in this calculation. Legalizing drugs means letting
the price fall to its competitive rate (plus taxes and advertising costs).
That market price would probably be somewhere between one-third and 1/20th
of the illegal price. And more than the market price would fall. As
Harvard's Mark Moore has pointed out, the "risk price" -- that is, all the
hazards associated with buying drugs, from being arrested to being ripped
off -- would also fall, and this decline might be more important than the
lower purchase price.

Under a legal regime, the consumption of low-priced, low-risk drugs would
increase dramatically. We do not know by how much, but the little evidence
we have suggests a sharp rise. Until 1968 Britain allowed doctors to
prescribe heroin. Some doctors cheated, and their medically unnecessary
prescriptions helped increase the number of known heroin addicts by a
factor of 40. As a result, the government abandoned the prescription policy
in favor of administering heroin in clinics and later replacing heroin with
methadone.

When the Netherlands ceased enforcing laws against the purchase or
possession of marijuana, the result was a sharp increase in its use.
Cocaine and heroin create much greater dependency, and so the increase in
their use would probably be even greater.

Fewer Crimes, More Users

The average user would probably commit fewer crimes if these drugs were
sold legally. But the total number of users would increase sharply. A large
fraction of these new users would be unable to keep a steady job. Unless we
were prepared to support them with welfare payments, crime would be one of
their main sources of income. That is, the number of drug-related crimes
per user might fall even as the total number of drug-related crimes
increased. Add to the list of harms more deaths from overdose, more babies
born to addicted mothers, more accidents by drug-influenced automobile
drivers, and fewer people able to hold jobs or act as competent parents.

Treating such people would become far more difficult. As psychiatrist Sally
Satel has written, many drug users will not enter and stay in treatment
unless they are compelled to do so. Phoenix House, the largest national
residential drug treatment program, rarely admits patients who admit they
have a problem and need help. The great majority are coerced by somebody --
a judge, probation officer, or school official -- into attending. Phoenix
House CEO Mitchell Rosenthal opposes legalization, and for good reason.
Legalization means less coercion, and that means more addicts and addicts
who are harder to treat.

Douglas Anglin, drawing on experiences in California and elsewhere, has
shown that people compelled to stay in treatment do at least as well as
those who volunteer for it, and they tend (of necessity) to stay in the
program longer. If we legalize drugs, the chances of treatment making a
difference are greatly reduced. And as for drug-use prevention, forget it.
Try telling your children not to use a legal substance.

But people who want to keep drugs illegal have problems of their own. The
major thrust of government spending has been to reduce the supply of drugs
by cutting their production overseas, intercepting their transfer into the
U.S., and arresting dealers. Because of severe criminal penalties,
especially on handlers of crack cocaine, our prisons have experienced a
huge increase in persons sentenced on drug charges. In the early 1980s,
about 1/12th of all prison inmates were in for drug convictions; now well
over one-third are.

Drug Suppliers And Dealers

No one can be certain how imprisoning drug suppliers affects drug use, but
we do know that an arrested drug dealer is easily replaced. Moreover, the
government can never seize more than a small fraction of the drugs entering
the country, a fraction that is easily replaced.

Emphasizing supply over treatment is dangerous. Not only do we spend huge
sums on it; not only do we drag a reluctant U.S. military into the
campaign; we also heighten corruption and violence in countries such as
Colombia and Mexico. The essential fact is this: Demand will produce supply.

We can do much more to reduce demand. Some four million Americans are
currently on probation or parole. From tests done on them when they are
jailed, we know that half or more had a drug problem when arrested. Though
a lot of drug users otherwise obey the law (or at least avoid getting
arrested), probationers and parolees constitute the hard core of dangerous
addicts. Reducing their demand for drugs ought to be our highest priority.

Mark Kleiman of UCLA has suggested a program of "testing and control":
Probationers and parolees would be required to take frequent drug tests --
say, twice weekly -- as a condition of remaining on the street. These tests
are inexpensive and show

immediate results. If you failed the test, you would spend more time in
jail; if you passed it, you would remain free. This approach would be an
inducement for people to enter and stay in treatment.

Changes In Handling Offenders

This would require some big changes in how we handle offenders. Police,
probation, and parole officers would be responsible for conducting these
tests, and more officers would have to be hired. Probation and parole
authorities would have to be willing to sanction a test failure by
immediate incarceration, initially for a short period (possibly a weekend),
and then for longer periods if the initial failure were repeated. Treatment
programs at little or no cost to the user would have to be available not
only in every prison, but for every drug-dependent probationer and parolee.

These things are not easily done. Almost every state claims to have an
intensive community supervision program, but few offenders are involved in
them, the frequency with which they are contacted is low, and most were
released from supervision without undergoing any punishment for violating
its conditions.

But there is some hope. Our experience with drug courts suggests that the
procedural problems can be overcome. In such courts, several hundred of
which now exist, special judges oversee drug-dependent offenders, insisting
that they work to overcome their habits. While under drug-court
supervision, offenders reduce drug consumption and, at least for a while
after leaving the court, offenders are less likely to be arrested.

Our goal ought to be to extend meaningful community supervision to all
probationers and parolees, especially those who have a serious drug or
alcohol problem. Efforts to test Kleiman's proposals are underway in
Connecticut and Maryland.

If this demand-reduction strategy works, it can be expanded. Drug tests can
be given to people who apply for government benefits, such as welfare and
public housing. Some critics will think this is an objectionable intrusion.
But giving benefits without conditions weakens the character-building
responsibility of society.

Drug Abuses Harms Others

John Stuart Mill, the great libertarian thinker, argued that the only
justifiable reason for restricting human liberty is to prevent harm to
others. Serious drug abuse does harm others. We could, of course, limit
government action to remedying those harms without addressing their causes,
but that is an uphill struggle, especially when the harms fall on unborn
children. Fetal drug syndrome imposes large costs on infants who have had
no voice in choosing their fate.

Even Mill was clear that full liberty cannot be given to children or
barbarians. By "barbarians" he meant people who are incapable of being
improved by free and equal discussion. The life of a serious drug addict --
the life of someone driven by drug dependency to prostitution and crime --
is the life of a barbarian.