George Will ranks very high in my pantheon of intellectual heroes. He’s one of America’s leading living champions of freedom and free markets under the rule of law. When I disagree with him, which fortunately for me is very seldom, I sincerely worry about the soundness of my own judgment or the accuracy of my understanding of history as these might connect to the disagreement at hand. And so it’s with no small bit of self-doubt that I express my disagreement with Mr. Will on the question of drug legalization.
George Will was a recent guest on Jay Nordlinger’s podcast, Q&A. Interesting and informative throughout, the discussion briefly turned to the legalization of cocaine. After expressing his dissent from the pro-legalization stance taken by men who he deeply admires – men such as Milton Friedman, George Schultz, and William F. Buckley, Jr. – Nordlinger asked Mr. Will’s opinion about legalizing cocaine. Mr. Will agrees with Nordlinger that cocaine should not be legalized.
Mr. Will correctly points out that cocaine is dangerous – deranging, even – to persons who take it. Because legalizing this harmful substance would, in Mr. Will’s view, create for society additional problems, legalization is inadvisable.
For three reasons, I disagree.
Freedom Is Inherently Valuable
My first reason is normative: There should be a presumption of liberty, and overcoming this presumption should be very difficult. I’m aware that this reason is unpersuasive to all but already-committed libertarians, but in my opinion it is nevertheless important.
Under a presumption of liberty, adults should be free to harm themselves. Although actions that harm one’s self often have effects that spill over as harms to innocent others, the government should focus its efforts on preventing the spillover harms and not on preventing harms that are self-inflicted. For example, Jones’s consumption of alcohol can result in his, as he drives while drunk, harming Smith. By all means, punish Jones with appropriate harshness for harming Smith, but do not attempt to stop the general adult population from drinking. The relevant wrong committed here is exclusively the harm to Smith, not the harm that Jones inflicts on himself by abusing alcohol.
One can respond by insisting that the least costly, or perhaps even the only possible, means of protecting third parties from such harms is to outlaw the substance that raises Jones’s prospect of harming Smith. In the abstract, this possibility cannot be denied. And were it to describe reality, the case for prohibiting substances such as cocaine would be greatly strengthened. Yet largely because of the realities that form my final two reasons for disagreeing with Mr. Will and others who support continued prohibition, I believe that the practical case for prohibition is too weak to overcome the presumption of liberty.
Prohibition Intensifies the Potencies and Impurities of Drugs
A second reason for supporting legalization of cocaine is that the substance called “cocaine” that is now sold, bought, and ingested is not the substance that would be sold, bought, and ingested under a regime of full legalization. The substance that we now know as “cocaine” is an ugly artifact of prohibition. Prohibition makes this substance more potent and dangerous than it would be otherwise.
The smaller the bulk of a substance that is illegally peddled and purchased, the lower the chances of those engaged in these illegal activities being detected by law-enforcement authorities. Sellers and users of prohibited substances, therefore, each has an interest in intensifying the potency of these substances. Because people use drugs for their mind- or body-altering effects, if a seller packs more potency into a given volume of substance, the market value of each ounce (or whatever unit of measurement you prefer) of the substance increases. This value increases both because that given amount of substance now supplies a greater quantity of the effects that drug-users seek and are paying for, and because that amount of substance reduces buyers’ risks of detection compared to the risks of detection buyers would confront were that same amount of potency packed into a larger volume of substance.
Obviously, as cocaine and other such substances become more potent, the ability to regulate dosing becomes more difficult. One regrettable result is a relatively high rate of overdosing and of other ill side effects not sought by users. Whatever today, with prohibition, are the rates of overdosing and other ill side effects, these rates would likely fall if prohibition were ended.
A related effect of prohibition is to cede the market for prohibited substances to unscrupulous producers and dealers. Decent and honorable people tend to be law-abiding. Persons willing to produce and supply illegal drugs thus tend to be less scrupulous than would be suppliers under a regime of legalization. But even if the decency and scrupulousness of sellers would be the same with and without prohibition, with prohibition in place the illegal substances that are produced and sold nevertheless are more likely – compared to what would be the reality under legalization – to contain dangerous impurities. Prohibition reduces competition among drug producers and sellers. Seller A cannot easily share with buyers his knowledge that Seller B’s product is inferior to Seller A’s product. Ditto, of course, for Seller B. The incentive of each seller, therefore, to improve, or even to maintain, product quality is diminished.
Reinforcing this sorry effect is the lack of brand names. In legal markets, a brand name serves both as a bond of the quality of a seller’s offerings and as an easy means for buyers to distinguish sellers of ‘good’ quality products from sellers of products the qualities of which are discovered, when consumed, to be lower than expected. Further, unlike for legal products, buyers and users of illegal products cannot easily hold negligent, reckless, or fraudulent producers legally accountable.
It’s simply a mistake to assume that the same products sold and used under a regime of prohibition will be the same products sold and used if prohibition is ended. Almost certainly, ending prohibition will reduce drugs’ potency and other dangers. Unless a prohibitionist believes that prohibition will completely stop the manufacture, sale, and use of illegal substances, this downside of prohibition is real and, I believe, should cause those who reasonably worry about the ill-effects of illegal drugs to seriously consider the benefits of legalization.
Prohibition Corrupts Law Enforcement
My third reason for disagreeing with Messrs. Nordlinger and Will’s belief that cocaine and like substances should remain illegal is that prohibition necessarily spawns noxious policing practices – practices fundamentally corrosive of the foundations of a free society.
The peddling, purchase, and use of illegal drugs are indeed victimless crimes in the sense that – unlike, say, with burglary or rape – no party to the criminalized activities has any incentive to notify the police. Therefore, to police against the illegal drug trade requires that police officers resort to deception. The use of undercover agents, sting operations, strip searches, and racial and other forms of profiling, as well as of wiretapping and other forms of secret surveillance, are unavoidable if law enforcement is to have any hope of carrying out its charge of shrinking the trade of illegal substances. Precisely because the police do not know beforehand – that is, before they get the results of their undercover operations and secret surveillance – who is and who isn’t involved in the illegal drug trade, such policing jeopardizes the privacy and freedom of everyone. And complaints by innocent persons who discover that they’ve been secretly surveilled by the police will fall on deaf ears. As long as the police are charged with enforcing drug prohibitions, they simply cannot be held accountable if, after the fact, it’s discovered that they intruded on the privacy of innocent people.
As I wrote in 1999 after learning of law-enforcement agents’ monstrous treatment of Jannerel Denson, a pregnant woman wrongly suspected of smuggling illegal drugs in her stomach and fed laxatives by government officials:
Because drug dealing involves only willing participants, drug warriors inevitably must guess whether or not an offense is occurring and who is committing it. Such guessing, of course, involves choosing targets according to their racial, sex, and age profiles. This is why [US Customs] Commissioner [Raymond] Kelly’s denial of racial profiling is unbelievable (and why Congress can end it only by ending the “drug war”). No matter how refined the technique for selecting targets, large numbers of innocent people will be detained, strip-searched, and humiliated à la Janneral Denson. After all, if Customs agents could identify drug traffickers without strip-searches, there would be no need for such searches.
(By the way, Ms. Denson never did get – as they say – full justice.)
And let’s not forget that the use of the banana-republic practice of civil asset forfeiture is commonly defended as a valuable ‘weapon’ for use in the ‘war on drugs.’
Legalizing cocaine and other hard drugs, much like the legalization of marijuana, will tempt some people into actions and life-styles that all reasonable adults understand to be unfortunate. Whether the total amount or depth of drug abuse will increase or decrease is an open, empirical question. No one can say. But we can say with great confidence, along with Georgetown University law professor Randy Barnett, that ending the war on drugs would significantly shrink the scope of law-enforcement officers’ incentives and abilities to violate the civil and property rights of Americans – even, indeed chiefly, of Americans who do not and would never use hard drugs, be these legal or illegal.