Drug Legalization?: Time for a real debate

Whether Bill Clinton “inhaled” when trying marijuana as a college student was about the closest the last presidential campaign came to addressing the drug issue. The present one, however, could be very different. For the fourth straight year, a federally supported nationwide survey of American secondary school students by the University of Michigan has indicated increased drug use. After a decade or more in which drug use had been falling, the Republicans will assuredly blame the bad news on President Clinton and assail him for failing to carry on the Bush and Reagan administrations’ high-profile stand against drugs. How big this issue becomes is less certain, but if the worrisome trend in drug use among teens continues, public debate about how best to respond to the drug problem will clearly not end with the election. Indeed, concern is already mounting that the large wave of teenagers—the group most at risk of taking drugs—that will crest around the turn of the century will be accompanied by a new surge in drug use.

As in the past, some observers will doubtless see the solution in much tougher penalties to deter both suppliers and consumers of illicit psychoactive substances. Others will argue that the answer lies not in more law enforcement and stiffer sanctions, but in less. Specifically, they will maintain that the edifice of domestic laws and international conventions that collectively prohibit the production, sale, and consumption of a large array of drugs for anything other than medical or scientific purposes has proven physically harmful, socially divisive, prohibitively expensive, and ultimately counterproductive in generating the very incentives that perpetuate a violent black market for illicit drugs. They will conclude, moreover, that the only logical step for the United States to take is to “legalize” drugs—in essence repeal and disband the current drug laws and enforcement mechanisms in much the same way America abandoned its brief experiment with alcohol prohibition in the 1920s.

Although the legalization alternative typically surfaces when the public’s anxiety about drugs and despair over existing policies are at their highest, it never seems to slip off the media radar screen for long. Periodic incidents—such as the heroin-induced death of a young, affluent New York City couple in 1995 or the 1993 remark by then Surgeon General Jocelyn Elders that legalization might be beneficial and should be studied—ensure this. The prominence of many of those who have at various times made the case for legalization—such as William F. Buckley, Jr., Milton Friedman, and George Shultz—also helps. But each time the issue of legalization arises, the same arguments for and against are dusted off and trotted out, leaving us with no clearer understanding of what it might entail and what the effect might be.

As will become clear, drug legalization is not a public policy option that lends itself to simplistic or superficial debate. It requires dissection and scrutiny of an order that has been remarkably absent despite the attention it perennially receives. Beyond discussion of some very generally defined proposals, there has been no detailed assessment of the operational meaning of legalization. There is not even a commonly accepted lexicon of terms to allow an intellectually rigorous exchange to take place. Legalization, as a consequence, has come to mean different things to different people. Some, for example, use legalization interchangeably with “decriminalization,” which usually refers to removing criminal sanctions for possessing small quantities of drugs for personal use. Others equate legalization, at least implicitly, with complete deregulation, failing in the process to acknowledge the extent to which currently legally available drugs are subject to stringent controls.

Unfortunately, the U.S. government—including the Clinton administration—has done little to improve the debate. Although it has consistently rejected any retreat from prohibition, its stance has evidently not been based on in- depth investigation of the potential costs and benefits. The belief that legalization would lead to an instant and dramatic increase in drug use is considered to be so self-evident as to warrant no further study. But if this is indeed the likely conclusion of any study, what is there to fear aside from criticism that relatively small amounts of taxpayer money had been wasted in demonstrating what everyone had believed at the outset? Wouldn’t such an outcome in any case help justify the continuation of existing policies and convincingly silence those—admittedly never more than a small minority—calling for legalization?

A real debate that acknowledges the unavoidable complexities and uncertainties surrounding the notion of drug legalization is long overdue. Not only would it dissuade people from making the kinds of casual if not flippant assertions—both for and against—that have permeated previous debates about legalization, but it could also stimulate a larger and equally critical assessment of current U.S. drug control programs and priorities.

First Ask the Right Questions

Many arguments appear to make legalization a compelling alternative to today’s prohibitionist policies. Besides undermining the black-market incentives to produce and sell drugs, legalization could remove or at least significantly reduce the very problems that cause the greatest public concern: the crime, corruption, and violence that attend the operation of illicit drug markets. It would presumably also diminish the damage caused by the absence of quality controls on illicit drugs and slow the spread of infectious diseases due to needle sharing and other unhygienic practices. Furthermore, governments could abandon the costly and largely futile effort to suppress the supply of illicit drugs and jail drug offenders, spending the money thus saved to educate people not to take drugs and treat those who become addicted.

However, what is typically portrayed as a fairly straightforward process of lifting prohibitionist controls to reap these putative benefits would in reality entail addressing an extremely complex set of regulatory issues. As with most if not all privately and publicly provided goods, the key regulatory questions concern the nature of the legally available drugs, the terms of their supply, and the terms of their consumption (see page 21).

What becomes immediately apparent from even a casual review of these questions—and the list presented here is by no means exhaustive—is that there is an enormous range of regulatory permutations for each drug. Until all the principal alternatives are clearly laid out in reasonable detail, however, the potential costs and benefits of each cannot begin to be responsibly assessed. This fundamental point can be illustrated with respect to the two central questions most likely to sway public opinion. What would happen to drug consumption under more permissive regulatory regimes? And what would happen to crime?

Relaxing the availability of psychoactive substances not already commercially available, opponents typically argue, would lead to an immediate and substantial rise in consumption. To support their claim, they point to the prevalence of opium, heroin, and cocaine addiction in various countries before international controls took effect, the rise in alcohol consumption after the Volstead Act was repealed in the United States, and studies showing higher rates of abuse among medical professionals with greater access to prescription drugs. Without explaining the basis of their calculations, some have predicted dramatic increases in the number of people taking drugs and becoming addicted. These increases would translate into considerable direct and indirect costs to society, including higher public health spending as a result of drug overdoses, fetal deformities, and other drug-related misadventures such as auto accidents; loss of productivity due to worker absenteeism and on-the-job accidents; and more drug-induced violence, child abuse, and other crimes, to say nothing about educational impairment.

Advocates of legalization concede that consumption would probably rise, but counter that it is not axiomatic that the increase would be very large or last very long, especially if legalization were paired with appropriate public education programs. They too cite historical evidence to bolster their claims, noting that consumption of opium, heroin, and cocaine had already begun falling before prohibition took effect, that alcohol consumption did not rise suddenly after prohibition was lifted, and that decriminalization of cannabis use in 11 U.S. states in the 1970s did not precipitate a dramatic rise in its consumption. Some also point to the legal sale of cannabis products through regulated outlets in the Netherlands, which also does not seem to have significantly boosted use by Dutch nationals. Public opinion polls showing that most Americans would not rush off to try hitherto forbidden drugs that suddenly became available are likewise used to buttress the pro-legalization case.

Neither side’s arguments are particularly reassuring. The historical evidence is ambiguous at best, even assuming that the experience of one era is relevant to another. Extrapolating the results of policy steps in one country to another with different sociocultural values runs into the same problem. Similarly, within the United States the effect of decriminalization at the state level must be viewed within the general context of continued federal prohibition. And opinion polls are known to be unreliable.

More to the point, until the nature of the putative regulatory regime is specified, such discussions are futile. It would be surprising, for example, if consumption of the legalized drugs did not increase if they were to become commercially available the way that alcohol and tobacco products are today, complete with sophisticated packaging, marketing, and advertising. But more restrictive regimes might see quite different outcomes. In any case, the risk of higher drug consumption might be acceptable if legalization could reduce dramatically if not remove entirely the crime associated with the black market for illicit drugs while also making some forms of drug use safer. Here again, there are disputed claims.

Opponents of more permissive regimes doubt that black market activity and its associated problems would disappear or even fall very much. But, as before, addressing this question requires knowing the specifics of the regulatory regime, especially the terms of supply. If drugs are sold openly on a commercial basis and prices are close to production and distribution costs, opportunities for illicit undercutting would appear to be rather small. Under a more restrictive regime, such as government-controlled outlets or medical prescription schemes, illicit sources of supply would be more likely to remain or evolve to satisfy the legally unfulfilled demand. In short, the desire to control access to stem consumption has to be balanced against the black market opportunities that would arise. Schemes that risk a continuing black market require more questions—about the new black markets operation over time, whether it is likely to be more benign than existing ones, and more broadly whether the trade-off with other benefits still makes the effort worthwhile.

The most obvious case is regulating access to drugs by adolescents and young adults. Under any regime, it is hard to imagine that drugs that are now prohibited would become more readily available than alcohol and tobacco are today. Would a black market in drugs for teenagers emerge, or would the regulatory regime be as leaky as the present one for alcohol and tobacco? A “yes” answer to either question would lessen the attractiveness of legalization.

What about the International Repercussions?

Not surprisingly, the wider international ramifications of drug legalization have also gone largely unremarked. Here too a long set of questions remains to be addressed. Given the longstanding U.S. role as the principal sponsor of international drug control measures, how would a decision to move toward legalizing drugs affect other countries? What would become of the extensive regime of multilateral conventions and bilateral agreements? Would every nation have to conform to a new set of rules? If not, what would happen? Would more permissive countries be suddenly swamped by drugs and drug consumers, or would traffickers focus on the countries where tighter restrictions kept profits higher? This is not an abstract question. The Netherlands’ liberal drug policy has attracted an influx of “drug tourists” from neighboring countries, as did the city of Zurich’s following the now abandoned experiment allowing an open drug market to operate in what became known as “Needle Park.” And while it is conceivable that affluent countries could soften the worst consequences of drug legalization through extensive public prevention and drug treatment programs, what about poorer countries?

Finally, what would happen to the principal suppliers of illicit drugs if restrictions on the commercial sale of these drugs were lifted in some or all of the main markets? Would the trafficking organizations adapt and become legal businesses or turn to other illicit enterprises? What would happen to the source countries? Would they benefit or would new producers and manufacturers suddenly spring up elsewhere? Such questions have not even been posed in a systematic way, let alone seriously studied.

Irreducible Uncertainties

Although greater precision in defining more permissive regulatory regimes is critical to evaluating their potential costs and benefits, it will not resolve the uncertainties that exist. Only implementation will do that. Because small-scale experimentation (assuming a particular locality’s consent to be a guinea pig) would inevitably invite complaints that the results were biased or inconclusive, implementation would presumably have to be widespread, even global, in nature.

Yet jettisoning nearly a century of prohibition when the putative benefits remain so uncertain and the potential costs are so high would require a herculean leap of faith. Only an extremely severe and widespread deterioration of the current drug situation, nationally and internationally—is likely to produce the consensus—again, nationally and internationally that could impel such a leap. Even then the legislative challenge would be stupendous. The debate over how to set the conditions for controlling access to each of a dozen popular drugs could consume the legislatures of the major industrial countries for years.

None of this should deter further analysis of drug legalization. In particular, a rigorous assessment of a range of hypothetical regulatory regimes according to a common set of variables would clarify their potential costs, benefits, and trade- offs. Besides instilling much-needed rigor into any further discussion of the legalization alternative, such analysis could encourage the same level of scrutiny of current drug control programs and policies. With the situation apparently deteriorating in the United States as well as abroad, there is no better time for a fundamental reassessment of whether our existing responses to this problem are sufficient to meet the likely challenges ahead.