Why I oppose complete legalization

Last week I briefly declared that I part company with Libertarians on the War on Drugs.

I've heard from some folks. Most were civil. But a few impugned my knowledge, a few my intelligence, and one my ancestry. So I now offer an explanation.

Note that I don't necessarily defend every aspect of our current policy. The current degree of federal involvement in regulating drugs should perhaps be changed at the margin; I don't have strong feelings about that dispute.

What I disagree with is what I take to be the Libertarian position: for adults, everything should be legal. (Or as comedian Drew Carey has cracked, "I can't believe the government has the nerve to limit the ways I can hurt myself.") Here's David Boaz and Timothy Lynch of Cato in a recent publication:

Congress should repeal the Controlled Substances Act of 1970, shut down the Drug Enforcement Administration, and let the states set their own policies with regard to currently illegal drugs. They would do well to treat marijuana, cocaine, and heroin the way most states now treat alcohol: It should be legal for stores to sell such drugs to adults.

I assume that if they want heroin to be legal, they would want all drugs to be legal.

I oppose that, at least for now, because I'm a conservative. I take three of the central premises of conservatism to be 1) respect for history's lessons, 2) respect for institutions, and 3) respect for the power of markets. And at present, all three lead me to doubt that full legalization would be smart.

1. History. In the 1800s morphine, opium, and cocaine were all legal in the U.S. But in the early 1900s state governments and the federal government regulated these drugs. Now I well understand that not all laws are good laws. One reason is that special interests can work against the general interest. For all I know, the federal law may have been strongly backed by the liquor industry. Another reason is that some laws are passed in response to majorities who have temporarily lost their minds. Wikipedia claims that the state laws were the result of raw racism.

Nevertheless, the laws were passed, consumption of those drugs declined--did the laws cause the decline? I don't know--and as far as I can tell, the laws remained in force, and were not seriously opposed for at least half a century. That fact merits a lot of study.

And there are at least two more recent incidents to study. In 1975 the Alaska Supreme Court effectively decriminalized marijuana usage for individuals age 19 or older. But in 1990 Alaskans voted to recriminalize marijuana. Switzerland experimented with "Needle Park," an area in which people could use heroin without interference. But Swiss authorities closed Needle Park in 1992.

2. Institutions. If we consider the most industrialized countries in the world, the 30 OECD countries, say, we find a wide array of social arrangements. Whether we look at welfare, child-rearing, prostitution, education, marriage, or abortion, practices and institutions vary quite a lot. Some of those countries have more liberal drug policies than ours. But none, so far as I can tell, have a policy that even approaches full legalization. Why? If it's such a good idea, why hasn't even one of our peer countries adopted it? Note that even if several did, I wouldn't necessarily consider that a good reason for us to do it. But I think the utter absence of the policy elsewhere should be carefully considered.

3. The market. Two of the big purported advantages of legalization derive from the market. With the market providing fully legal drugs, drug prices will fall significantly but their safety will increase. So junkies would supposedly commit far fewer crimes to support their habits and fewer users would get sick or die from tainted drugs. Fine.

But I'm puzzled why legalization supporters don't follow the implications of market competition to their logical conclusion. Competing firms would have a huge incentive to make now-legal opiates and hallucinogens better. (Even a government-regulated monopoly would have this incentive, albeit probably less strongly.) So I wonder what happens when Pfizer introduces Phocaine, a form of cocaine that is five times more physically addictive than current cocaine and gets the user five times higher. And what happens when Bristol Myers Squibb retaliates by marketing Squibborin, a form of heroin that is ten times as physically addicting as current heroin and prolongs the high ten times as long?

I can envision at least two consequences. First, all the carefully constructed estimates of drug demand--estimates that legalization advocates use to argue that we could put all the new addicts in rehab with the savings from ending the War on Drugs--become suspect. Given a little time, we could well have far more addicts than currently projected. Second, an important part of civil society--solving the big Prisoner's Dilemma of living in groups--will be threatened. If everybody else in the group works and is productive, I probably can get away with not working: the group may grumble a little, but in the end, it may well view supporting me as less costly than shunning or punishing me. (I am quite charming, after all.) But if everybody thought this way, nobody would work, and the group would be in big trouble. Human societies have constructed powerful social norms and apply significant pressure to induce individuals to work and contribute to the social good.

But utterly addicted and totally blissed-out individuals don't respond to such pressures. And if there are enough of them, the group is in big trouble. Steven Levitt quotes James Q. Wilson (p. 543): "tobacco shortens one’s life, cocaine debases it. Nicotine alters one’s habits, cocaine alters one’s soul. The heavy use of crack, unlike the heavy use of tobacco, corrodes those natural sentiments of sympathy and duty that constitute our human nature and make possible our social life”.

I wasn't able to locate a copy on the Web of Wilson's famous 1990 Commentary piece from which that quote was taken, but here is Wilson's more recent argument against full legalization.

There are perhaps other things to consider. What about the Becker/Murphy idea of legalizing but taxing the hell out of drugs? I don't think that would work as intended, either, but even if it did, I can't see how that would appeal at all to Libertarians, the focus of this little essay. What about decrminalizing just pot? What about throttling back all the martial language and imagery? Et cetera.

But I have a day job and this is enough for now.