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The War on Drugs Is Lost

by Patrick Basham
Cato Institute ()

Abstract

Full Text NATIONAL REVIEW has attempted during its tenure as, so to speak, keeper of the conservative tablets to analyze public problems and to recommend intelligent thought. The magazine has acknowledged a variety of positions by right-minded thinkers and analysts who sometimes reach conflicting conclusions about public policy. As recently as on the question of troops to Bosnia, there was dissent within the family from our corporate conclusion that we'd be best off staying home. For many years we have published analyses of the drug problem. An important and frequently cited essay by Professor Michael Gazzaniga (Feb. 5, 1990) brought a scientist's discipline into the picture, shedding light on matters vital to an understanding of the drug question. He wrote, for instance, about different rates of addiction, and about ambient pressures that bear on addiction. Elsewhere, Professor James Q. Wilson, now of UCLA, has written eloquently in defense of the drug war. Milton Friedman from the beginning said it would not work, and would do damage. We have found Dr. Gazzaniga and others who have written on the subject persuasive in arguing that the weight of the evidence is against the current attempt to prohibit drugs. But NATIONAL REVIEW has not, until now, opined formally on the subject. We do so at this point. To put off a declarative judgment would be morally and intellectually weak-kneed. Things being as they are, and people as they are, there is no way to prevent somebody, somewhere, from concluding that ``NATIONAL REVIEW favors drugs.'' We don't; we deplore their use; we urge the stiffest feasible sentences against anyone convicted of selling a drug to a minor. But that said, it is our judgment that the war on drugs has failed, that it is diverting intelligent energy away from how to deal with the problem of addiction, that it is wasting our resources, and that it is encouraging civil, judicial, and penal procedures associated with police states. We all agree on movement toward legalization, even though we may differ on just how far. We are joined in our judgment by Ethan A. Nadelmann, a scholar and researcher; Kurt Schmoke, a mayor and former prosecutor; Joseph D. McNamara, a former police chief; Robert W. Sweet, a federal judge and former prosecutor; Thomas Szasz, a psychiatrist; and Steven B. Duke, a law professor. Each has his own emphases, as one might expect. All agree that the celebrated war has failed, and that it is time to go home, and to mobilize fresh thought on the drug problem in the context of a free society. This symposium is our contribution to such thought. --THE EDITORS 1. Wm. F. Buckley Jr. Last summer WFB was asked by the New York Bar Association to make a statement to the panel of lawyers considering the drug question. He made the following statement: WE ARE speaking of a plague that consumes an estimated $75 billion per year of public money, exacts an estimated $70 billion a year from consumers, is responsible for nearly 50 per cent of the million Americans who are today in jail, occupies an estimated 50 per cent of the trial time of our judiciary, and takes the time of 400,000 policemen -- yet a plague for which no cure is at hand, nor in prospect. Perhaps you, ladies and gentlemen of the Bar, will understand it if I chronicle my own itinerary on the subject of drugs and public policy. When I ran for mayor of New York, the political race was jocular, but the thought given to municipal problems was entirely serious, and in my paper on drugs and in my post-election book I advocated their continued embargo, but on unusual grounds. I had read -- and I think the evidence continues to affirm it -- that drug-taking is a gregarious activity. What this means, I said, is that an addict is in pursuit of company and therefore attempts to entice others to share with him his habit. Under the circumstances, I said, it can reasonably be held that drug-taking is a contagious disease and, accordingly, subject to the conventional restrictions employed to shield the innocent from Typhoid Mary. Some sport was made of my position by libertarians, including Professor Milton Friedman, who asked whether the police might legitimately be summoned if it were established that keeping company with me was a contagious activity. I recall all of this in search of philosophical perspective. Back in 1965 I sought to pay conventional deference to libertarian presumptions against outlawing any activity potentially harmful only to the person who engages in that activity. I cited John Stuart Mill and, while at it, opined that there was no warrant for requiring motorcyclists to wear a helmet. I was seeking, and I thought I had found, a reason to override the presumption against intercession by the state. About ten years later, I deferred to a different allegiance, this one not the presumptive opposition to state intervention, but a different order of priorities. A conservative should evaluate the practicality of a legal constriction, as for instance in those states whose statute books continue to outlaw sodomy, which interdiction is unenforceable, making the law nothing more than print-on-paper. I came to the conclusion that the so-called war against drugs was not working, that it would not work absent a change in the structure of the civil rights to which we are accustomed and to which we cling as a valuable part of our patrimony. And that therefore if that war against drugs is not working, we should look into what effects the war has, a canvass of the casualties consequent on its failure to work. That consideration encouraged me to weigh utilitarian principles: the Benthamite calculus of pain and pleasure introduced by the illegalization of drugs. A YEAR or so ago I thought to calculate a ratio, however roughly arrived at, toward the elaboration of which I would need to place a dollar figure on deprivations that do not lend themselves to quantification. Yet the law, lacking any other recourse, every day countenances such quantifications, as when asking a jury to put a dollar figure on the damage done by the loss of a plaintiff's right arm, amputated by defective machinery at the factory. My enterprise became allegorical in character -- I couldn't do the arithmetic -- but the model, I think, proves useful in sharpening perspectives. Professor Steven Duke of Yale Law School, in his valuable book, America's Longest War: Rethinking Our Tragic Crusade against Drugs, and scholarly essay, ``Drug Prohibition: An Unnatural Disaster,'' reminds us that it isn't the use of illegal drugs that we have any business complaining about, it is the abuse of such drugs. It is acknowledged that tens of millions of Americans (I have seen the figure 85 million) have at one time or another consumed, or exposed themselves to, an illegal drug. But the estimate authorized by the federal agency charged with such explorations is that there are not more than 1 million regular cocaine users, defined as those who have used the drug at least once in the preceding week. There are (again, an informed estimate) 5 million Americans who regularly use marijuana; and again, an estimated 70 million who once upon a time, or even twice upon a time, inhaled marijuana. From the above we reasonably deduce that Americans who abuse a drug, here defined as Americans who become addicted to it or even habituated to it, are a very small percentage of those who have experimented with a drug, or who continue to use a drug without any observable distraction in their lives or careers. About such users one might say that they are the equivalent of those Americans who drink liquor but do not become alcoholics, or those Americans who smoke cigarettes but do not suffer a shortened lifespan as a result. Curiosity naturally flows to ask, next, How many users of illegal drugs in fact die from the use of them? The answer is complicated in part because marijuana finds itself lumped together with cocaine and heroin, and nobody has ever been found dead from marijuana. The question of deaths from cocaine is complicated by the factor of impurity. It would not be useful to draw any conclusions about alcohol consumption, for instance, by observing that, in 1931, one thousand Americans died from alcohol consumption if it happened that half of those deaths, or more than half, were the result of drinking alcohol with toxic ingredients extrinsic to the drug as conventionally used. When alcohol was illegal, the consumer could never know whether he had been given relatively harmless alcohol to drink -- such alcoholic beverages as we find today in the liquor store -- or whether the bootlegger had come up with paralyzing rotgut. By the same token, purchasers of illegal cocaine and heroin cannot know whether they are consuming a drug that would qualify for regulated consumption after clinical analysis. But we do know this, and I approach the nexus of my inquiry, which is that more people die every year as a result of the war against drugs than die from what we call, generically, overdosing. These fatalities include, perhaps most prominently, drug merchants who compete for commercial territory, but include also people who are robbed and killed by those desperate for money to buy the drug to which they have become addicted. This is perhaps the moment to note that the pharmaceutical cost of cocaine and heroin is approximately 2 per cent of the street price of those drugs. Since a cocaine addict can spend as much as $1,000 per week to sustain his habit, he would need to come up with that $1,000. The approximate fencing cost of stolen goods is 80 per cent, so that to come up with $1,000 can require stealing $5,000 worth of jewels, cars, whatever. We can see that at free-market rates, $20 per week would provide the addict with the cocaine which, in this wartime drug situation, requires of him $1,000. My mind turned, then, to auxiliary expenses -- auxiliary pains, if you wish. The crime rate, whatever one made of

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