Free Markets, Free People

Randy Barnett on Drug Prohibition

For a libertarian blog, this is a subject that we rarely opine about. Probably because its a rather dead horse that just doesn’t need any more beating. Even so, we do all too often have occasion to discuss the ill effects of the War on (Some) Drugs, such as the asset seizure case Bruce highlighted.

In that vein, Randy Barnett offers up his latest law review on the subject “The Harmful Side Effects of Drug Prohibition” and this abstract:

Some drugs make people feel good. That is why some people use them. Some of these drugs are alleged to have side effects so destructive that many advise against their use. The same may be said about statutes that attempt to prohibit the manufacture, sale, and use of drugs. Advocating drug prohibition makes some people feel good because they think they are “doing something” about what they believe to be a serious social problem. Others who support these laws are not so altruistically motivated. Employees of law enforcement bureaus and academics who receive government grants to study drug use, for example, may gain financially from drug prohibition. But as with using drugs, using drug laws can have moral and practical side effects so destructive that they argue against ever using legal institutions in this manner.

This article will not attempt to identify and “weigh” the costs of drug use against the costs of drug laws. Instead, it will focus exclusively on identifying the harmful side effects of drug law enforcement and showing why these effects are unavoidable. So one-sided a treatment is justified for two reasons. First, a cost-benefit or cost-cost analysis may simply be impossible. Second, discussions by persons who support illegalizing drugs usually emphasize only the harmful effects of drug use while largely ignoring the serious costs of such policies. By exclusively relating the other side of the story, this article is intended to inject some balance into the normal debate.

The harmful side-effects of drug laws have long been noted by a number of commentators, although among the general public the facts are not as well known as they should be. More importantly, even people who agree about the facts fail to grasp that it is the nature of the means — coercion — chosen to pursue the suppression of voluntary consumptive activity that makes these effects unavoidable. This vital and overlooked connection is the main subject of this article.

It’s a pretty interesting read. You can download the entire article by visiting Randy’s post linked above.

27 Responses to Randy Barnett on Drug Prohibition

  • Good read – I wonder, an argument I frequently hear is the ‘cost to society’ of drug use, not meaning specifically the burglaries or robberies that are enumerated in the paper, but also the medical treatment (or burial costs…) people foresee will be needed for the various heroin addicts, coke heads, et al – how could the money we spend on investigation, interdiction, enforcement, arrest, prosecution and incarceration, not to mention the stigma on these individuals who are now, not just addicts, but criminals…how could the cost of treating these people ever possibly rival the cost we’re sustaining now to enforce these prohibitions, let alone the infringement of personal freedoms caused by these laws?

    • In short, it doesn’t, in fact you could put all the hard core addicts on welfare, foodstamps, section8 housing, and give them free drugs and you would come out far far cheaper than all the money spent on the war on drugs.

      • That only considers the monetary costs, too.  Were we to do what you suggest, we essentially kill the addict market, which is where drug producers really hope to make their money.  That would, of course, leave the “causal user” market, which could still be addressed so as to deny the illicit producers any (or much of any) buyers.
        It would also assure quality and safety for the addict end-user, and remove their drive to commit crimes for supply.
        As I said here, being an addict should not be without consequence respecting some of one’s civil liberties.  But they could readily be restored, too, and with no criminal stigma.

  • A Gordian Knot I have grappled with for several decades.
    Perhaps a “decriminalization” of some drugs…which I see as not the same as “legalization” is a partial answer.  Addicts would be at some loss of SOME freedoms (i.e., the right to vote, own firearms, etc.) as long as they were active users.
    SOME drugs (i.e., grass) could readily be legalized.
     

  • “Some of these drugs are alleged to have side effects so destructive that many advise against their use”
     
    “ALLEDGED”? Someone needs to get up from the computer and get out more.

  • We all know that the only reason for ending the war on drugs is to destroy the socio-economic structure within many Black communities.  Many Black entrepreneurs livelihoods depend on the market conditions such as low-supply levels produced by the conditions of the current war on drugs.
    In short, ending the war on drugs is racist.
    (Al Sharpton made me do this)

    • Decriminalizing drugs won’t end the (no pun intended) the black market for drugs.  Not by a longshot.

      • Justify that, please.

        • Lab animals will opt for drugs over food until they starve to death.  All too many people are close enough to that, this will happen as it does now.
           
          Assuming the government stays out of it, you’ll have stores selling drugs to people that are drugging themselves into real oblivion.  In comes the lawyers.  Lawsuits abound.  Companies won’t want to sell the drugs without enough profit to withstand the suits.  Stores dispensing the drugs will similarly need to protect themselves from liability.  People who are obvious addicts, will be refused retail.  The rest will be paying for that liability protection.  You will still have people who can’t get as much as they want legally and the cost will go up for the rest.  Both of these effects create opportunity for black market retail.
           
          So, the soft government solution to the lawsuits will be to force these to be dispensed by doctors or medical facilities.  No doctor is going to prescribe enough drugs to someone to kill themselves.  Not at one sitting and not over time.  They have to protect themselves from liability.  The FDA also ends up getting involved.  Cost, cost, cost, restriction, restriction, restriction.  Again black market opportunity.

          • Um…  Alcohol.  Seriously, if you want a perfect model of how this could work, you have only to look at alcoholic beverages.

        • How about children? the assumption here seems to be that children (pick your own definition) will not want to use drugs and even if they do noone will sell them drugs. Another assumption seems to be that, unlike cigarettes, there will be no black market for drugs.  Still another is that drug usage and addiction will not increase with legalization. I don’t find any of them convincing.

          • No such assumptions at all.

          • Well, ask you yourself, If cocaine (which I’m not advocating we legalize, or you use) became legal, would YOU buy it?
             
            You COULD probably buy a much more expensive car than you own, but you probably don’t.  There are going to be those who DO drugs, and those who don’t,   There are those who drink to excess, and those who don’t.   What makes you think all the people around you right now who might have 2 drinks of an evening are suddenly going to jump into drugs?  Too many of us ‘have to work in the morning’ and are responsible enough that it just won’t happen.  This idea that everyone will become wild insane drugs addicts if we legalize it is a fantasy.
             
            But the violations of our civil liberties in the name of drug enforcement, and the costs, those are NOT fantasies.

          • I can buy it now … but I don’t. And it isn’t because of law enforcement either.

  • The Drug War is another great example of what the ruling class is really after: power.

    Both sides, Republican and Democrat, enthusiastically support it, even though there’s a sizable percentage of the voting population that doesn’t and even though any realistic weighting of costs vs. benefits shows it to be a waste of money.

    But it is one of the best mechanisms yet discovered in America for subverting the Constitution and diverting more power to all levels of government. It inspires an emotional response in enough voters (never mind any of the facts involved) to get them to support giving privileges to the state that they would be aghast to see if they were not blinded by the emotion.

    It’s the sharp tip of the concept that the government has the right and duty to be everyone’s parent. To tell us what we can do and what we cannot, for our own good. We will never see a return to American citizens being treated as adults as long as the Drug War is in place.

    The illegality of marijuana is patently ridiculous even by the supposed reasoning of the ruling class, because there’s just no way it’s worse for someone than alcohol or tobacco. It was made illegal because they could, and because that extends state control, not because it was a smart or benign thing to do.

    But for me, making something illegal because it may allow someone to hurt themselves (and *by extension* their immediate family) is against every principle of government I believe in. I believe in treating adults as adults, and letting feedback take its course. Smoking was once cool. Now it’s considered gauche and lower class. That’s not because of Nanny Bloomberg and his allies; it’s because there is enough widespread understanding of the long term effect of tobacco on the smoker, and the short term annoyance of the people around the smoker.

    Otis the drunk on Mayberry saved more people from alcoholism than government ever will. Heroin use dropped to low levels after the sixties showed what it did to addicts, especially those in music. That’s the kind of long term solution we need, but when it’s suppressed and the stupidity of the drug use is intermingled with the illegality, we lose the clarity of the stupidity. Those DARE guys are the worst example of that problem.

    • You said it all better than I could.

    • “But for me, making something illegal because it may allow someone to hurt themselves (and *by extension* their immediate family) is against every principle of government I believe in.”

      Does that include speeding and other traffic laws? Unlicensed possession of explosives? Various sanitation codes and laws? Etc.?

      “That’s not because of Nanny Bloomberg and his allies;..”

      Actually, it is, partly.  

      “Otis the drunk on Mayberry saved more people from alcoholism than government ever will.”

      I take that to mean that government is totally ineffective rather than that Otis was effective.

      • Speeding and other traffic laws clearly involve any random member of society. I’m quite surprised you even floated that, Tim. It’s a non sequitur to a discussion on impact of drugs.

        Unlicensed possession of explosives? The effect of explosives above a small amount can rather easily spill over outside what was intended. This is a borderline case – I think our laws are too harsh – but I understand them and there’s no huge black market in explosives that indicates that people want or need them, so it’s not an issue I think worth paying a lot of attention.

        Sanitation codes and such? Again, only if the effect gets broad enough, and it easily could – think of the various diseases that used to be fairly common because of badly done waste disposal. And again, there’s no huge black market in filth indicating a lot of demand for it, so I don’t really see that it has much relevance to a discussion of drug laws.  

        It sounds to me like you’re trying to conflate a bunch of things that have obvious wider impact, in general on random people, with acts that are mostly self-damaging and have limited or no potential to get outside a person’s immediate circle. I expect other adults to have the responsibility to leave that circle rather than take the impact – that’s part of the feedback. (Children are a different matter, and a hard one to manage. Though because drugs are easily obtained, we have quite a bit of that problem now too.)

        Yes, I recognize that Nanny Bloomberg et. al. have made smoking inconvenient, and that has some effect at the margins. But I’ve observed a dramatic drop among smoking in working-class relatives in rural areas where little of that applies. It used to be acceptable to light up a cigarette in most relatives’ houses, and now it’s considered rude and some of them will tell you to take it outside. That’s not laws – that’s custom, stemming from widespread understanding of the vice. That should be our primary defense as a society against vice, not capricious laws that erode practically every freedom we have and steadily give more power to petty people who crave it and will use it far outside the venue it was originally given for.

        Tim, do you realize the number of arrests that are done in the Drug War with nothing more than the word of an informant? I happen to be personally acquainted with that because of a family member who did nothing more than give a ride to neighbor, and was named as selling two joints to an informant (the neighbor’s girlfriend) trying to stay out of jail. The informant bought bags of pot, split them up into joints, and then just named anyone who happened to be convenient as the person supposedly selling them the pot. The law enforcement required no more proof than that to go out and arrest all of them. My family member lost his very good job, spent thousand of dollars he didn’t have on lawyer fees, almost didn’t get his car back (asset forfeiture), and basically lost about six months of his life clearing that whole thing up. The cases began to blow up under scrutiny – they were all eventually dismissed. The judge merely commented at the dismissal that he had been badly treated by the criminal justice system, and no one in that system lost their job or had any other consequences as a result.

        Is this really the system you want to support? 

        • “Speeding and other traffic laws clearly involve any random member of society.”

          Wha? Speeding involves speeders and possible consequences to others. Addiction involves addicts and possible consequences to others. Both activities ” may allow someone to hurt themselves…”.

          “so it’s not an issue I think worth paying a lot of attention.”

          Nonresponsive. It’s pretty much a yes or no question.

          “acts that are mostly self-damaging and have limited or no potential to get outside a person’s immediate circle”

          I think I am starting to see. It’s not the principle, it’s the number of people affected? What is the cutoff number?

          “That’s not laws – that’s custom,”

          And how did custom change so rapidly? Who supplied all that anti-smoking information and research? Not to mention the villification of tobacco companies, their product, and even the users of that product. Government had no influence?  

          “…….Is this really the system you want to support?”

          You know, that last argument is almost Erb-like. And I do not mean that in a humorous way.

          • Come on, Tim. There’s a clear and obvious difference between someone on a highway interacting with hundreds of random people an hour and someone in their home interacting only with their family. You’re being obtuse to claim otherwise, and that is indeed Erb-like.

            As far as being non-responsive, you want to defend what I consider a ridiculous position about drugs by bringing in things for which the relationship is somewhere between tenuous and non-existent. Erb-like again. There’s no big segment of the public who thinks sanitation laws are an unreasonable limitation on freedom and are engaging in a black market to circumvent those laws. People are not going to prison on fudged up evidence that they ran a stop sign. Those are simple facts. Trying to conflate sanitation and traffic with the laws on drugs is a fallacious argument, and from your long tenure here, I expect better than that from you.

            Don’t wave the principle thing at me; anyone who reads this website regularly ought to know that few human problems have perfect answers. The people who post here are not doctrinnaire liberatarians striving for perfect principle. We believe in limited government and that freedom carries a high value, that collectivist forms of government are oppressive and cause misery and deprivation in the long term, and that people ought to be treated as adults. 

            The drug war is an obvious violation of those principles. Traffic laws are not. Sanitation laws are not. You’re only making yourself look foolish by claiming any significant linkage.

            I’m getting in the car for a six hour road trip, so no more on this from me today. Have at it. But you really ought to be thinking things through a little more completely before you accuse someone with a perfectly viable argument of being Erb-like.  

          • “There’s a clear and obvious difference between someone on a highway interacting with hundreds of random people an hour and someone in their home interacting only with their family.”

            Because, as we all know, drug users always stay home while using and never drive.

            “But you really ought to be thinking things through a little more completely before you accuse someone with a perfectly viable argument of being Erb-like.”

            My statement about being Erb-like referred to your last argument, not the entire comment. I stand by that. Condescension and moral bullying, to start with. “Do you realize the number of arrests….”. Even if this site was my only source of information about the world I could not help but realize that. “Is this really the system you want to support?”. Why, of course. I obviously believe wholeheartedly in unlimited governmental power and the abuse thereof.
            The argument is objectionable and offensive for a number of reasons.

            ” There’s no big segment of the public who thinks sanitation laws are an unreasonable limitation…”

            I claim the same can be said of drug laws.  

            “The people who post here are not doctrinnaire liberatarians striving for perfect principle. We believe in limited government”

            Then don’t tell me the war on drugs is bad because it violates some principle. Differing over the limits in limited government is not a violation of the principle of limited government.

            And then there is personal responsibility, an idea I have read about here from time to time. Am I to assume all those law enforcement people are victims of entrapment? They would never abuse their power but for the existence of drug laws? Unlike RICO , eminent domain, etc. 
              

          • “Because, as we all know, drug users always stay home while using and never drive. ”

            Damn it, Tim, show me where I said I’m against laws against driving under the influence. Because I’m not. As soon as you get into a venue where your actions have broader implications, OF COURSE the laws are different.

            You’re deliberately misunderstanding me here, which I find to be typical behavior for drug warriors. You want to change the subject to traffic laws, or sanitation laws, or anything else except the subject at hand, which if you happened to forget is DRUG LAWS.

            So defend those. Tell us why the costs are worth the benefits. Tell us why that poor woman got bail money confiscated because the cash had a trace of drugs. You seemed to think that it was “abuse” in a comment in that thread, but you fail to see that it’s baked in the cake – the cost of drug laws is to give the state that kind of arbitrary power, and you just refuse to acknowledge that.

            So stop trying to change the subject, and tell us why drug laws have such good effects that they balance the bad outcomes – the ruined lives, the expense, the expansion of state power, the indoctrination of citizens that government knows best and should tell them what to do. Because I don’t think you can. If you could, you would not be trying these disingenuous Erbish arguments that you’ve been throwing out.

  • @jpm100:  If you’re right, then why hasn’t the same scenario played out with alcohol?  In fact, the situation we now have with respect to drugs is highly similar to what we had with alcohol during Prohibition.  Why wouldn’t we see similar results from ending the WOD as we saw from being Prohibition?

    • Yeah, no black market for alcohol.

      http://www.bbc.co.uk/news/world-us-canada-10556048

      And because of the cultural history around alcohol, drunks are generally held accountable for their own behavior and addiction. The lawyers only get so far (although they keep trying more and more). But anything new will be treated like any other product liability.

      http://oxycontinlawsuits.com/exampleofanoxycontincase.shtml

      And unlike oxycontin which has legitimate medical use, recreational drugs won’t be cut any slack.

      • You pass laws, silly, to give civil cover to the suppliers.  Good grief.
        And your moonshine story substantiates rather than weakens the argument.  NOooooooBODY suggested there was no black market for booze.  Plus, the story conflates hobby distillers with moonshiners.  Please

  • And WHY is it that the progressive crowd never shows up to argue with us on this issue?  Why is it we’re always ‘conservatives’ arguing with other ‘conservatives’ about whether or not we should allow everyone to get high without criminalization.  One would think that, being the right wing thuggish NAZI red-neck mouth breathing inbred narrow minded intellectually sterile morons that we are, we’d be for rounding up the user and the seller alike, placing them in leaky containers and using them for naval gunfire practice targets…..
     
    Yet, here we are, arguing over those ‘rights’ things again, and in many views, advocating we release narcotics to the general public for consumption without supervision.   I suppose they don’t show up and argue because it makes no sense to them that such a discussion would occur between right wing thuggish etc etc etc, and therefore this whole thread didn’t REALLY happen.