But it's quite a leap from this critique to the conclusion that the best way to eliminate harms is to eliminate prohibition; the story is far more complicated. A decade of study presented in our book, Drug War Heresies: Learning from Other Vices, Times, and Places has convinced us that legalization of cocaine, marijuana, and heroin would lead to large reductions in drug-related crime and mortality, but also to large increases in drug use and addiction. Poor urban minority communities, which have been devastated by drug violence and drug imprisonments, might benefit substantially, but the larger body of middle-class Americans would likely be moderately worse off. It's impossible to persuasively quantify any of these effects, but in the face of this certainty (about the directions of change) and uncertainty (about magnitudes), it's much less clear than legalization advocates generally acknowledge just what American drug policy should be.
Step Right Up!
The usual assumption is that sales of cocaine, marijuana, and heroin would be carefully regulated if made legal. But the U.S. experience with regulating other dangerous vices is not encouraging. State and federal governments have ended up allowing gambling, smoking, and drinking to be heavily promoted in the marketplace, notwithstanding the abundant evidence that they cause great harm to many people.
Take gambling: In one generation the nation has shifted from an almost universal prohibition to the near universal availability of lotteries and casinos (and dizzying gambling promotion by government itself). A recent New York State lottery ad proclaimed, "We won't stop until everyone's a millionaire." In California the come-on is, "Everybody gets lucky sooner or later, so don't take any chances."
The legalization of gambling has brought great gains quite apart from the pleasure many people derive from fantasies of sudden wealth. Money that previously went to criminals and corrupt police has been diverted to public coffers. Still, the policy has also generated serious costs, from the moral debasement of state government to the expansion of problem gambling and, probably, white-collar crimes committed to cover gambling losses. About three million adults and adolescents now gamble so much that it causes real harm to themselves and others, up from about 1.1 million in 1975. As for lotteries, the poor spend a much higher share of their income on them than anyone else, making this method of financing public programs appallingly regressive. Households with incomes of less than $10,000 spent an average of $600 (on average more than 6 percent of their total incomes) on lottery tickets in 1997, the last year for which survey data are available. Compare this with households whose incomes exceed $100,000; they spent an average of $300 (less than one-third of 1 percent).
Tobacco is a different story. A continuing and aggressive public-health campaign has cut overall smoking rates in half in a generation. Few today doubt that cigarettes are hazardous (although smokers tend to think they're less hazardous for themselves than for other people), and the combination of civil restrictions on where a person can smoke, health-insurance incentives, and pressure from physicians has made smoking a stigmatized behavior in many communities and subcultures.
Nonetheless, it's striking that a generation after the nation became aware of smoking's dangers, the tobacco industry manages to retain and promote a mass legal market for a deadly product. Indeed, the proportion of young people taking up smoking has stayed about the same over the last 20 years. The tobacco industry, meanwhile, remains a power in politics at every level of government. It fought off one set of advertising restrictions by establishing the Freedom to Advertise Coalition, which included the American Association of Advertising Agencies, the Outdoor Advertising Association of America, and the Association of National Advertisers. The industry's position was also supported by magazine and newspaper publishers and by the American Civil Liberties Union, which announced its strong opposition to cigarette advertising restrictions on First Amendment grounds. To defeat large increases in federal tobacco taxation, the tobacco industry allied itself with groups fighting against tax increases generally. It has very successfully broadened its political base by making strategic donations to nonprofit groups. To date it has also succeeded in staving off regulation by the U.S. Food and Drug Administration.
Alcohol regulation has historically been more restrictive than tobacco control. In 1933 the country rejected Prohibition but with less than a ringing endorsement of easy access to liquor. When Prohibition was repealed, 15 states initially established state liquor monopolies; only nine states allowed retail sale of alcohol without food. In some states patrons could only be served at tables; standing at a bar was believed to encourage overindulgence. Sunday sales were widely forbidden.
Since World War II, however, all such restrictions, except those governing the minimum legal drinking age, have eroded and restrictions on the promotion of alcohol were squarely halted by the Supreme Court's 1996 decision in 44 Liquormart, Inc., v. State of Rhode Island . By now even federal liquor taxes are, by international and historical standards, very modest.
In the case of alcohol, it was apparently not the repeal of Prohibition that increased drinking: Consumption rates in the mid-1930s were well below those before Prohibition. But as restrictions on the liquor industry were eased after World War II and aggressive advertising began, consumption rates climbed to a 1975 peak of 2.7 gallons of pure alcohol per capita from about 1.6 gallons in 1940. Lately, programs aimed at reducing drunken driving, particularly among youths, have had a substantial impact on road fatalities but not on drinking itself. And alcohol consumption still leads to 100,000 deaths annually.
When Freud Flogged Cocaine
It may be possible to design a regulatory scheme for drugs that in theory would avoid the harms of prohibition as well as the dangers of open commercialization. But experience suggests that we'll have considerable trouble maintaining it. If we're unable to effectively restrain the promotion of alcohol and tobacco, each of which levies a terrible burden on society, it's particularly unlikely that the United States will do any better with marijuana, a drug less harmful than either of these (though not without hazards or addictive qualities).
Would regulation of hard drugs fare better? Those who now oppose legalization often cite the United States's experience during the time when cocaine, heroin, and other opiates were legally available. But we have found that the lessons of history are not so obvious. For example, before it was prohibited in 1914, use of cocaine was only about one-fifth as common as it is now and led to much less violent crime, according to new research by Joseph Spillane, reported in his Cocaine: From Medical Marvel to Modern Menace in the United States, 1884-1920. A point for the legalizers? Perhaps, but criminalizing the drug did result in sharp reductions in use for two generations, until the explosion of users in our own times.
Less equivocal is the effect, once again, of commercialization. By the 1890s respectable doctors and pharmacists had stopped prescribing and dispensing cocaine, having seen that it generated addiction and violence in patients. The pharmaceutical industry, however, did not give up so quickly. As late as 1892, Parke-Davis, the most prominent of cocaine industry firms, published a reference book with 240 pages on coca and cocaine of which only three contained negative reports -- and these ignored much of what was widely known by then about the drug's dangers. Cocaine manufacturers continued to promote their product extensively, soliciting some of the earliest celebrity endorsements in the advertising business. Sigmund Freud himself was persuaded to tout the quality and purity of Parke-Davis cocaine.
The result: As medical use stopped, recreational use grew, especially among the poor. A Pharmaceutical Era report from 1904 reflects the public concern at the time: "The cocaine habit is steadily growing in Newark among the boys who pool in the upstairs pool and billiard rooms. ... Scores of young men have recently lost ambition and employment by the use of the drug in this manner and ... several deaths have recently been caused by the habit." There was little hesitation about prohibiting cocaine in the Harrison Narcotics Act of 1914.
Coffee and a Toke
Our mixed findings about other vices and other times do not bolster the case for legalization. Nor do they endorse current American policies, which remain ineffective, unnecessarily harsh, and the source of considerable social damage. What we have learned from other places, however, suggests that these two strategies are not the only choices. Not only is it possible to implement prohibition more sensibly, many other Western countries have already done so.
The Dutch decision to allow the sale of small amounts of marijuana and hashish in specially regulated coffee shops provides the best available evidence about the advantages and limitations of such an approach. Dutch law unequivocally prohibits possession of any form of cannabis, the plant from which both marijuana and hashish are derived; international treaties signed by the country require that. Yet in 1976, the Dutch adopted a formal written policy of nonenforcement for violations involving possession or sale of up to 30 grams. Since 1995 that's been changed to five grams, but either is a sizeable quantity given that few Dutch users, according to research done at the University of Amsterdam, consume more than 10 grams a month. The Dutch implemented this system of quasi-legal commercial availability in order to prevent excessive punishment of casual users, and to weaken the link between soft- and hard-drug markets by allowing marijuana users to avoid contact with illegal sellers.
At first, cannabis use under this system remained stable -- at rates well below those in the United States. But between 1980 and 1988, the number of coffee shops selling cannabis in Amsterdam increased tenfold. They spread to more prominent and accessible locations in the central city and began to promote the drug more openly, even though they were not allowed to advertise in conventional ways. By the mid-1990s somewhere between 1,200 and 1,500 coffee shops (about one for every 12,000 inhabitants) were selling cannabis products in the Netherlands, and use had exploded. Whereas 15 percent of 18-to-20-year-olds reported having used marijuana in 1984, the figure had more than doubled to 33 percent by 1992 -- during a period when rates were flat or declining in most other Western nations. And it has not dropped since.
Still, this rate of use in the Netherlands is somewhat lower than in the United States and in the middle of the range for Western Europe. One can be impressed by the speed with which marijuana use spread after the coffee shops started selling it widely -- or by the plateau of use at rates lower than those in the United States, notwithstanding America's roughly 700,000 annual arrests for marijuana possession in the 1990s.
The Dutch data suggest that, by itself, removing criminal penalties against users has little effect on cannabis consumption. Experience elsewhere reinforces that conclusion. Decriminalization of marijuana possession in 12 U.S. states during the 1970s, and in two Australian states more recently, was not associated with any discernible increase in use. That's probably because merely removing the penalties for use, without permitting commercial promotion of the drug, does not make it significantly more available than under prohibition. In that sense decriminalization offers only modest risks. But it also offers fairly modest gains, leaving black markets intact and failing to address the crime and health problems aggravated by prohibition.
The other major European innovation comes from conservative Switzerland. In January 1994, Switzerland opened a number of heroin-maintenance clinics in a three-year national trial of a treatment alternative for addicts not helped by available methadone-maintenance programs. The average age among addicts admitted to the trial was about 33, with 12 years of injecting heroin and eight prior treatment episodes. Addicts could choose the heroin dose they needed and could inject up to three times daily, 365 days of the year, a regimen intended to remove any incentive for black market purchases.
By the end of the trial more than 800 patients had received heroin on a regular basis, apparently without leakage into the illicit market. Seventy percent were still in treatment a year and a half later, a much higher retention rate than for most methadone programs; and Swiss researchers believe that a substantial fraction of the 30 percent who dropped out of heroin maintenance went on to other kinds of treatment. No overdose deaths were reported among participants while they stayed in the program, and their behavior exposed them to less risk of AIDS. Crime was much reduced, according to both the addicts' own reports and the government's arrest records. Those in the trial group holding jobs they described as "permanent" rose to 32 percent from 14 percent; unemployment among them fell to 20 percent from 44 percent.
Due to a weak research design, it's not clear from the Swiss trial if the improvement in patients was due to heroin maintenance or to the psychological and social services that addicts also received. Still, no one has made a claim that the heroin problem in the trial communities worsened as a result of allowing heroin maintenance. In 1997 the Swiss government approved a large-scale expansion of the program, although other countries continue to criticize it because Swiss participants receive an average daily dose of 500 to 600 milligrams of pure heroin, a massive amount by the standards of U.S. street addicts.
Choosing the best policy for our own country is not a simple matter of adding up benefits and harms. For one thing, even if the average harm caused to society by an incident of cocaine or heroin use were much reduced (as it very likely would be with full legalization, for instance), that might not result in an overall improvement. The total harm to society is average harm multiplied by the total quantity of drugs consumed. With any policy that results in many more users -- and perhaps heavier use among the most seriously addicted -- total harm might rise even as average harm fell.
Moreover, there are many different kinds of damage: How does one weigh the increased addiction certain to result from legalization against the reduced crime and corruption that would also be generated? How does one balance reductions in violence against potential increases in accidents and other behavioral risks of drug use? Money is hardly a satisfactory measure.
Another complication is that the advantages and disadvantages of different approaches will be unevenly distributed in society. Any substantial reduction in illegal drug markets will help urban minority communities, where drug sales now cause so much crime and disorder. And that's likely to be true even if the levels of drug use and addiction were to increase in those communities. For the middle class, however, the benefits of eliminating the black market may look very small in comparison to the increased risk of drug involvement, particularly among adolescents. For liberals such as ourselves, redistributing the damage away from the poor is desirable and might even justify some worsening of the overall problem, but not everyone will agree with that.
To further confuse the public debate, one size will not fit all. There is, for instance, a strong case to be made for not only eliminating the penalties for marijuana possession but also allowing people to cultivate the plant for their own use -- the approach currently taken in the state of South Australia. The downside risks (increases in marijuana use and respiratory illness) seem modest while the gains look very attractive: the elimination of 700,000 marijuana possession arrests in the United States annually and the possibility of weakening the link between soft- and hard-drug markets without launching Dutch-style commercial promotion. But in the case of heroin, the desirability of some sort of prescription approach, on the model of the Swiss heroin-maintenance regimen, is much harder to gauge. (Further evidence will soon be available from a pilot heroin-maintenance program in the Netherlands, which may be helpful.) And with cocaine, it seems that any policy that permits easier access is likely to produce sizeable increases in use.
What's clear, however, is that we do not have to choose between the two extremes -- an all-out war on drugs or a libertarian free market -- usually presented in the American debate. More moderate alternatives are possible. The policies of the Netherlands, Switzerland, and, increasingly, the United Kingdom and Germany, demonstrate that it's possible to reap most of the benefits of prohibition without inflicting the harms caused by the punitive U.S. system. The American failure to see this is largely traceable to the popular notion that the only defensible goal for drug policy is reducing the number of users (preferably to zero). It would be equally rational, however, to seek also to reduce the harmful consequences of drug use when it occurs. To this end we could aim at reducing the quantity of drugs consumed by those who won't quit taking them, a tack familiar from the American approach to controlling the use of alcohol. And we could undertake harm reduction with efforts based on the model of American product-safety regulation, which focuses as much on reducing the consequences of accidents as on reducing the number of them.
Working out similar strategies for drug control would not be easy nor would the results be without risk. But they would likely be far more humane than either of the options usually put before us.
Robert MacCoun and Peter Reuter
Copyright 2002 by The American Prospect, Inc. vol. 13 no. 10, June 3, 2002
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