Thinking About Drug Legalization

On Thursday, March 17, 1988, at 10:45 p.m., in the Bronx, Vernia Brown was killed by stray bullets fired in a dispute over illegal drugs.[1] The 19-year-old mother of one was not involved in the dispute, yet her death was a direct consequence of the "war on drugs."

By now, there can be little doubt that most, if not all, "drug-related murders" are the result of drug prohibition. The same type of violence came with the Eighteenth Amendment's ban of alcohol in 1920. The murder rate rose with the start of Prohibition, remained high during Prohibition, and then declined for 11 consecutive years when Prohibition ended.[2] The rate of assaults with a firearm rose with Prohibition and declined for 10 consecutive years after Prohibition. In the last year of Prohibition--1933--there were 12,124 homicides and 7,863 assaults with firearms; by 1941 these figures had declined to 8,048 and 4,525, respectively.[3] (See Figure 1.)

Vernia Brown died because of the policy of drug prohibition.[4] If, then, her death is a "cost" of that policy, what did the "expenditure" of her life "buy"? What benefits has society derived from the policy of prohibition that led to her death? To find the answer, I turned to the experts and to the supporters of drug prohibition.

In 1988, I wrote to Vice President George Bush, then head of the South Florida Drug Task Force; to Education Secretary William Bennett; to Assistant Secretary of State for Drug Policy Ann Wrobleski; to White House drug policy adviser Dr. Donald I. McDonald; and to the public information directors of the Federal Bureau of Investigation, Drug Enforcement Administration, General Accounting Office, National Institute of Justice, and National Institute on Drug Abuse. None of these officials was able to cite any study that demonstrated the beneficial effects of drug prohibition when weighed against its costs.[5] The leaders of the war on drugs are apparently unable to defend on rational cost-benefit grounds their 70-year-old policy, which costs nearly $10 billion per year (out of pocket), imprisons 75,000 Americans, and fills our cities with violent crime. It would seem that Vernia Brown and many others like her have died for nothing.

Source: U S Bureau of the Census, Historical Statistics of the United States, Colonial Times to 1970, part 1, Washington, D C. (1975. o 441)

(Graph Omitted)

Some supporters of drug prohibition claim that its benefits are undeniable and self-evident. Their main assumption is that without prohibition drug use would skyrocket, with disastrous results. But there is little evidence for this commonly held belief. In fact, in the few cases where empirical evidence does exist it lends little support to the prediction of soaring drug use. For example, in two places in the Western world where use of small amounts of marijuana is legal--the Netherlands and Alaska--the rate of marijuana consumption is arguably lower than in the continental United States, where marijuana is banned. In 1982, 6.3 percent of American high school seniors smoked marijuana daily, but only 4 percent did so in Alaska. In 1985, 5.5 percent of American high school seniors used marijuana daily, but in the Netherlands the rate was only 0.5 percent.[6] These are hardly controlled comparisons--no such comparisons exist--but the numbers that are available do not bear out the drastic scenario portrayed by supporters of continued prohibition.

Finally, there is at least some evidence that the "forbidden fruit" aspect of prohibition may lead to increased use of or experimentation with drugs, particularly among the young. This phenomenon apparently occurred with marijuana, LSD, toluene-based glue, and other drugs.[7] The case for legalization does not rely on this argument, but those who believe prohibition needs no defense cannot simply dismiss it.

History of Prohibition

If the value of drug prohibition is not self-evident,one might ask why it was put into effect in the first place.Drugs in one form or another were in effect legal for thousands of years before the Harrison Act of 1914, but the period of greatest availability in the United States was the 19th century. For most of the century, opium, morphine, and cocaine were legally and cheaply available without a prescription at drugstores and grocery stores and through the mail.[8] And yet, far from being marked by drug-crazed criminals and drug-paralyzed workers, that period was a time of unprecedented economic growth and productivity.

Regarding the impact of pre-prohibition drug use in theUnited States:

There was very little popular support for a law banning [narcotics]. "Powerful organizations for the suppression of alcoholic stimulants exist throughout the land" [citation omitted], but there were no similar anti-opiate organizations. The reason for this lack of demand for opiate prohibition is simple: the drugs were not viewed as a menace to society and . . . they were not in fact a menace.[9]

The situation in l9th-century England was remarkably similar:

Consumption under conditions of free supply in effect plateaued out. . . . Incapacity from use of opium was not seen as a problem of such frequency and severity as to be a leading cause for social anxiety.The prime image of the opium user was dissimilar to that of the wastrel and disruptive drunkard. Opium users were not lying about in the streets, or filling the workhouses, or beating their wives. It seems fair to conclude that at the saturation level which the plateau represented, opium was not a vastly malign or problematic drug in terms of its impact on social functioning.[10]

If there was no catastrophic drug problem before prohibition, why then was the Harrison Act enacted? In 1926, after11 years of narcotics prohibition, an editorial in the Illinois Medical Journal stated:

The Harrison Narcotic law should never have been placed upon the statute books of the United States. It is to be granted that the well-meaning blunderers who put it there had in mind only the idea of making it impossible for addicts to secure their supply of "dope" and to prevent unprincipled people from making fortunes, and fattening themselves upon the infirmities of their fellow men. As is the case with most prohibitive laws, however, this one fell far short of the mark.So far, in fact, that instead of stopping the traffic, those who deal in dope now make double their money from the poor unfortunates upon whom they prey. . . .The doctor who needs narcotics, used in reason to cure and allay human misery, finds himself in a pit of trouble. The lawbreaker is in fact in clover. .. . It is costing the United States more to support bootleggers of both narcotics and alcoholics than there is good coming from the farcical laws now on the statute books.As to the Harrison Narcotic law . . . people are beginning to ask, "Who did that, anyway?"[11]

The most important "who" was Secretary of State William Jennings Bryan:

A man of deep prohibitionist and missionary convictions and sympathies, he urged that the law be promptly passed to fulfill United States obligations under the new international [drug control] treaty. The supporters of the Harrison bill . . . said little about the evils of narcotics addiction in the United States. They talked more about the need to implement the Hague Convention of 1912. . . .Far from appearing to be a prohibition law, the Harrison Narcotics Act on its face was merely a law for the orderly marketing of opium, morphine, heroin, and other drugs--in small quantities over the counter, and in larger quantities on a physician's prescription. . . . It is unlikely that a single legislator realized in 1914 that the law Congress was passing would later be deemed [by the courts] a prohibition law.[12]

Two other reasons for the passage of the Harrison Act were the association of opium and its derivatives with the scorned minority of Chinese Americans,[13] and the lobbying of physicians and pharmacists eager to gain a legal monopoly over distribution of the prescribed drugs.[14]

As for marijuana, when it was banned in 1937, no medical testimony was presented to Congress.[15] Drug prohibition was thus not based upon even a semblance of analysis and research.

The Current Crisis of Drug Prohibition

Several recent events have dramatized the failures and costly side effects of the war on drugs: a woman sitting in her kitchen in Washington, D.C., is killed by a stray bullet from a drug dealers' shootout. A policeman guarding a witness in a drug case is brutally executed in Queens. In Los Angeles, drug-related gang warfare breaks out. General Manuel Noriega engineers a coup d'etat in Panama after he is accused of being one of history's great drug dealers. Colombia's courts refuse to extradite major drug dealers to the United States, and its attorney general is brazenly murdered by the Columbian drug cartel. An update of the Kerner Report concludes that the economic status of blacks relative to whites has not improved in 20 years--in part because many blacks are trapped in drug crime-infested inner cities, where economic progress is slow.

In spite of the greatest anti-drug enforcement effort inU.S. history, the drug problem is worse than ever. What should be done now? Get tougher in the war on drugs? Imprison middleclass drug users? Use the military? Impose the death penalty for drug dealing? Shoot down unmarked planes entering the United States?

The status quo is intolerable--everyone agrees on that. But there are only two alternatives: further escalate the war on drugs, or legalize them. Once the public grasps the consequences of escalation, legalization may win out by default.

Escalating the war on drugs is doomed to fail, as it did under President Richard M. Nixon, Gov. Nelson A. Rockefeller,and President Ronald Reagan.[16] It is confronted by a host of seemingly intractable problems: lack of funds, lack of prison space, lack of political will to put middle-class users in jail, and the sheer impossibility of preventing consenting adults in a free society from engaging in extremely profitable transactions involving tiny amounts of illegal drugs.

But none of these factors ultimately explains why escalating the war on drugs would fail. Failure is guaranteed because the black market thrives on the war on drugs and benefits from any intensification of it. At best, increased enforcement simply boosts the black market price of drugs, encouraging more drug suppliers to supply more drugs. The publicized conviction of a drug dealer, by instantly creating a vacancy in the lucrative drug business, has the same effect as hanging up a help-wanted sign saying, "Drug dealer needed--$5,000 a week to start--exciting work."

Furthermore, there is a real danger that escalating the war on drugs would squander much of the nation's wealth and freedom, causing enormous social disruption. No limit is yet in sight to the amount of money and new enforcement powers that committed advocates of prohibition will demand before giving up on prohibition.

It is instructive to note the parallel between the current debate over the drug problem and the debate over the alcohol problem in the twenties and thirties. In the earlier debate, one side called for intensified enforcement efforts, while the other called for outright repeal. The prohibitionists won all the battles: Enforcement efforts escalated throughout the duration of Prohibition. Convictions rose from 18,000 in1921 to 61,000 in 1932.[17] Prison terms grew longer and were meted out with greater frequency in the latter years of Prohibition.[18] The enforcement budget rose from $7 million in 1921 to $15 million in 1930.[19] The number of stills seized rose from 32,000 in 1920 to 282,000 in 1930.[20] In 1926, the Senate Judiciary Committee produced a 1,650-page report evaluating enforcement efforts and proposing reforms.[21] In 1927,the Bureau of Prohibition was created to streamline enforcemente fforts, and agents were brought under civil service protection to eliminate corruption and improve professionalism.[22] In1929, the penalties for violating the National Prohibition Act were increased.[23]

Also in 1929, President Hoover appointed a blue-ribbon commission to evaluate enforcement efforts and recommend reforms. The 1931 Wickersham Commission report (satirized in the poem that serves as the epigraph for this paper), while concluding that "there is as yet no adequate observance or enforcement," nevertheless urged that

appropriations for the enforcement of the Eighteenth Amendment should be substantially increased and that the vigorous and better organized efforts which have gone on since the Bureau of Prohibition Act,1927, should be furthered by certain improvements in the statutes and in the organization, personnel,and equipment of enforcement, so as to give enforcement the greatest practical efficiency.[24]

But the proponents of legalization won the war: In 1933, just two years later, Prohibition was dead. In light of this history, it should not be at all surprising that increasing support for drug legalization is coming at the same time that the war on drugs is intensifying. There is nothing incongruous about a highly respected big-city mayor endorsing legalization at the same time that the first "drug czar" is appointed. Rather, it means that the nation may be ready for a major change in its policy toward drugs.

Fortunately, as the nation's drug problem has worsened in recent years, proposals for legalizing illegal drugs have come more frequently. In December 1986, National Review, President Reagan's favorite magazine, featured two articles sharply critical of the current drug war. Richard Cowan, one of the authors, wrote:

In his anti-drug speech, President Reagan urged: "Please remember this when your courage is tested: You are Americans. You're the product of the freest society mankind has known. No one--ever--has the right to destroy your dreams and shatter your life."Precisely, Mr. President. And we should remember the same thing when our urine is tested. This tragi-comical, degrading, dehumanizing invasion of private bodily functions is the perfect symbol of drug prohibition, the logical conclusion of the subordination of the individual to a failed policy. We are not going to be drug-free, just unfree.[25]

Supporters of some form of legalization or decriminalization [26] represent all bands of the political spectrum: trial attorney Louis Nizer; economists Thomas Sowell and Milton Friedman; psychiatrist Thomas Szasz; columnists Stephen Chapman,William F. Buckley, Jr., and Richard Cohen; law professors Alan Dershowitz and Randy Barnett; criminologist Ernest vanden Haag; and "20/20" host Hugh Downs, to name a few.[27]

Baltimore mayor Kurt Schmoke kicked the debate into high gear with his April 1988 speech to the U.S. Conference of Mayors urging serious consideration of drug legalization. That same month, New York State Senator Joseph Galiber, a Democrat from the South Bronx, introduced legislation to legalize drugs.[28] In September 1988, the Select Committee on Narcotics, chaired by Rep. Charles Rangel (D-N.Y.), held a two-day hearing on the issue of legalization of drugs.[29]

Legalization has been justified on both philosophical and pragmatic grounds. Some argue that it is no business of government what individuals do with their bodies and minds. Thomas Szasz is the foremost exponent of the libertarian view:

I believe we have a right to eat, drink, or inject a substance--any substance--not because we are sick and want it to cure us, nor because a government supported medical authority claims it will be good for us, but simply because the government--as our servant rather than our master--hasn't the right to meddle in our private dietary and drug affairs.[30]

This paper takes no position on this important philosophical issue. Rather, it argues on purely practical grounds that drug prohibition has been an extremely costly failure. It challenges advocates of prohibition to rise above the level of platitudes and good intentions and to present hard evidence that prohibition, in actual practice, does more good than harm.

This paper does not suggest that legalization would solve the drug problem in its entirety. Legalization is offered as a solution only to the "drug problem problem,"[31] that is, the crime, corruption, and AIDS caused not by the biochemical effects of illegal drugs but by the attempt to fight drug use with the criminal justice system. The repeal of alcohol prohibition provides the appropriate analogy. Repeal did not end alcoholism--as indeed Prohibition did not--but it did solve many of the problems created by Prohibition, such ascorruption, murder, and poisoned alcohol. We can expect no more and no less from drug legalization today.

Defining the Issue

Much of the confusion surrounding drug policy discussions could be alleviated by asking the right question initially.The question that must be addressed in determining whether to legalize drugs is this: Do drug laws do more harm than good?

The focus here is not how dangerous drugs are or how much damage drug users inflict upon themselves. If these factors were decisive, then surely alcohol and tobacco would be banned (see appendix). Rather, the proper focus is how effective drug laws are in preventing damage from drugs, compared with the amount of injury the laws themselves cause.

With this emphasis in mind, the respective burdens of proof resting upon the parties to the debate can now be specified. Supporters of prohibition must demonstrate all of the following:

(1) that drug use would increase substantially after legalization;

(2) that the harm caused by any increased use would not be offset by the increased safety of legal drug use;

(3) that the harm caused by any increased use would not be offset by a reduction in the use of dangerous drugs that are already legal (e.g., alcohol and tobacco); and

(4) that the harm caused by any increased drug use not offset by (2) or (3) would exceed the harm now caused by the side effects of prohibition (e.g., crime and corruption).

In the absence of data supporting these propositions, neither the theoretical danger of illegal drugs nor their actual harmful effects can be a sufficient basis for prohibition. Neither can the bare fact, if proven, that illegal drug use would rise under legalization.

Prohibitionists face a daunting task--one that no one has yet accomplished or, apparently, even attempted. It might be noted, parenthetically, that a 1984 study by the Research Triangle Institute on the economic costs of drug abuse [32] has been erroneously cited in support of drug prohibition.[33] This report, which estimates the cost of drug abuse at $60 billion for 1983, is not, and was not intended to be, an evaluation of the efficacy of prohibition or the wisdom of legalization. It does not mention the terms "legalization" and"decriminalization" and makes no attempt to separate the costs attributable to drug use per se from the costs attributable to the illegality of drug use. In fact, the study seems to include some costs of legal drugs in its estimates.[34] Many of the costs cited are clearly the result of prohibition, for example, interdiction costs ($677 million). Furthermore, the report considers only costs that prohibition has failed to prevent, making no attempt to measure the costs prevented--or caused--by prohibition. In its present form, the study is therefore almost entirely irrelevant to the issue of legalizing drugs.

The case for legalization is sustained if any of the following propositions is true:

(1) prohibition has no substantial impact on the level of illegal drug use;

(2) prohibition increases illegal drug use;

(3) prohibition merely redistributes drug use from illegal drugs to harmful legal drugs; or

(4) even though prohibition might decrease the use of illegal drugs, the negative effects of prohibition outweigh the beneficial effects of reduced illegal drug use.

This paper relies primarily upon point (4) and secondarily upon points (1) and (3). The paper does not rely upon point (2), but Edward Brecher presented much historical evidence for that point in his masterly work Licit and Illicit Drugs, coauthored by the editors of Consumer Reports.

The Costs of Prohibition

As Thomas Sowell writes, "policies are judged by their consequences, but crusades are judged by how good they make the crusaders feel."[35] So the inquiry must be, do drug laws cause more harm than good?

Street Crime by Drug Users

Drug laws greatly increase the price of illegal drugs, often forcing users to steal to get the money to obtain them. Although difficult to estimate, the black market prices of heroin and cocaine appear to be about 100 times greater than their pharmaceutical prices. For example, a hospital-dispensed dose of morphine (a drug from which heroin is relatively easily derived) costs only pennies; legal cocaine costs about $20 per ounce. It is frequently estimated that at least 40 percent of all property crime in the United States is committed by drug users so that they can maintain their habits.[36] That amounts to about four million crimes per year and $7.5 billion in stolen property.[37]

Supporters of prohibition have traditionally used drug-related crime as a simplistic argument for enforcement: Stop drug use to stop drug-related crime. They have even exaggerated the amount of such crime in the hopes of demonstrating a need for larger budgets and greater powers. But in recent years,the more astute prohibitionists have noticed that drug-related crime is in fact drug-law-related. Thus, in many cases they have begun to argue that even if drugs were legal and thus relatively inexpensive, drug users would still commit crimes simply because they are criminals at heart.

The fact is, while some researchers have questioned the causal connection between illegal drugs and street crime, many studies over a long period have confirmed what every inner-city dweller already knows: Drug users steal to get the money to buy expensive illegal drugs. These studies were reviewed in 1985 in an article entitled "Narcotics and Crime: An Analysis of Existing Evidence for a Causal Relationship."The authors conclude:

[H]eroin addiction can be shown to dramatically increase property crime levels. . . . A high proportion of addicts' pre-addiction criminality consists of minor and drug offenses, while post addiction criminality is characterized much more by property crime.[38]

Moreover, prohibition also stimulates crime by:

• criminalizing users of illegal drugs, creating disrespect for the law;
• forcing users into daily contact with professional criminals, which often leads to arrest and prison records that make legitimate employment difficult to obtain;
• discouraging legitimate employment because of the need to "hustle" for drug money;
• encouraging young people to become criminals by creating an extremely lucrative blackmarket in drugs;
• destroying, through drug crime, the economic viability of low-income neighborhoods, leaving young people fewer alternatives to working in the black market; and
• removing the settling of drug-related disputes from the legal process, creating a context of violence for the buying and selling of drugs.
• Every property crime committed by a drug user is potentially a violent crime. Many victims are beaten and severely injured, and 1,600 are murdered each year.[39] Last year, a 16-year-old boy murdered 39-year-old Eli Wald of Brooklyn, father of a baby girl, taking $200 to buy crack.[40] Another New York City crack user murdered five people in an eight-day period to get the money to buy crack.[41] The user survived the crack, but his victims did not survive the user.

Black Market Violence

Prohibition also causes what the media and police misname"drug-related violence." This prohibition-related violence includes all the random shootings and murders associated with black market drug transactions: ripoffs, eliminating the competition, killing informers, and killing suspected informers.

Those who doubt that prohibition is responsible for this violence need only note the absence of violence in the legal drug market. For example, there is no violence associated with the production, distribution, and sale of alcohol. Such violence was ended by the repeal of Prohibition.

The President's Commission on Organized Crime estimates a total of about 70 drug-market murders yearly in Miami alone. Based on that figure and FBI data, a reasonable nationwide estimate would be at least 750 such murders each year.[42] Recent estimates from New York and Washington would suggest an even higher figure.

About 10 law enforcement officers are killed enforcing drug laws each year. In New York City, 5 officers were killed in 1988. These men--Robert Venable, Edward Byrne, John F.McKormick, Christopher Hoban, and Michael Buczek--were also victims of drug prohibition.

Do Drugs Cause Crime?

It is often thought that illegal drugs cause crime through their biochemical effects on the mind. In fact, marijuana laws were originally justified on that basis. Today, the notion that marijuana causes crime "is no longer taken seriously by even the most ardent [anti-]marijuana propagandists."[43] Regarding heroin:

There is no doubt that heroin use in and of itself. . . is a neutral act in terms of its potential criminogenic effect upon an individual's behavior.. . . There is nothing in the pharmacology, or physical or psychological impact, of the drug that propels a user to crime.[44]

Cocaine, like other stimulants such as nicotine and caffeine, can stimulate aggressive behavior. However,

personality and setting as usual make all the difference. . . . Jared Tinkelberg, commenting on a DEA study and in general on the relation between cocaine and violence, expresses some surprise that it seems to produce "amphetamine-like paranoid assaultiveness" so seldom and concludes that at present it is not a serious crime problem. . . . Most violence in the illicit cocaine trade, like the violence in the illicit heroin traffic today and in the alcohol business during Prohibition, is of course not necessarily related to the psycho-pharmacological properties of the drug. Al Capone did not order murders because he was drunk, and the cocaine dealer "Jimmy" does not threaten his debtors or fear the police because of cocaine-induced paranoia.[45]

When the New York City Police Department announced that 38 percent of murders in the city in 1987 were "drug-related," Deputy Chief Raymond W. Kelly explained:

When we say drug-related, we're essentially talking about territorial disputes or disputes over possession. . . . We're not talking about where somebody is deranged because they're on a drug. It's very difficult to measure that.[46]

Drugs Made More Dangerous

Because there is no quality control in the black market, prohibition also kills by making drug use more dangerous. Illegal drugs contain poisons, are of uncertain potency, and are injected with dirty needles. Many deaths are caused by infections, accidental overdoses, and poisoning.

At least 3,500 people will die from AIDS each year from using unsterile needles, a greater number than the combined death toll from cocaine and heroin.[47] These casualties include the sexual partners and children of intravenous drug users. Drug-related AIDS is almost exclusively the result of drug prohibition. Users inject drugs rather than taking them in tablet form because tablets are expensive; they go to"shooting galleries" to avoid arrests for possessing drugs and needles; and they share needles because needles are illegal and thus difficult to obtain. In Hong Kong, where needles are legal, there are no cases of drug-related AIDS.[48] Legalization would fight AIDS in three ways:

• by making clean needles cheaply available;
• by making drugs in tablet form less expensive; and
• by helping to break up the drug subculture, withits "shooting galleries" and needle-sharing.

As many as 2,400 of the 3,000 deaths attributed to heroin and cocaine use each year--80 percent--are actually caused by black market factors.[49] For example, many heroin deaths are caused by an allergic reaction to the street mixture of the drug,[50] while 30 percent are caused by infections.[51]

The attempt to protect users from themselves has backfired,as it did during Prohibition. The drug laws have succeeded only in making drug use much more dangerous and in driving it underground, out of the reach of moderating social and medical influences. As indicated in Table 1, drug prohibition causes at least 8,250 deaths each year.[52]

Table 1
Annual Deaths Caused by Drug Prohibition

Murders incident to street crime	1600
Black market murders	750
Drug-related AIDS	3,500
Poisoned drugs/no quality control	2,400
Total	8,250

A point that is implicit throughout this paper should be made explicit here: The users themselves do not benefit from prohibition. Rather, they die of overdoses caused by the uncertain quality of illegal drugs, and of AIDS contracted through dirty needles. They are murdered in remarkable numbers while buying or selling drugs. They are led into a criminal lifestyle by the need to raise large sums of money quickly, and must associate with professional criminals to secure a drug supply. Many users have long records of convictions for drug offenses, making it difficult for them to secure legitimate employment. As Randy Barnett notes, "It is difficult to overestimate the harm caused by forcing drug users into a life of crime. Once this threshold is crossed, there is often no return."[53]

And yet, isn't the point of drug prohibition the salvaging of those who, for whatever reasons, are unable to resist the lure of drugs? The 250,000 users infected with AIDS are a grim reminder of the failure of prohibition to do so.[54]

Economic Impact of Prohibition

What about the economic impact of prohibition? First,take a common estimate of annual black market drug sales--$80 billion.[55] Because the black market price of drugs is in-flated at the very least 10-fold over what the legal price would likely be, 90 percent of this figure, or about $70 billion,constitutes an economic loss caused by prohibition. That is, the drug user (and his dependents) is deprived of the purchasing power of 90 percent of the money he spends on illegal drugs without any net benefit accruing to the economy as a whole.[56]

The added expenditure by the drug user under prohibition pays for the dramatically increased costs of producing and selling illegal drugs. Large amounts of land, labor, and capital, not required in the legal drug market, are utilized in the illegal drug market. The high prices drug users pay for illegal drugs compensate drug dealers for their expenditure of these resources, as well as for the risk of violence and imprisonment drug dealers face.

The economic loss to drug users is evident in such phenomena as wealthy users squandering hundreds of thousands of dollars on drugs, middle-class users losing their houses and cars to drug expenditures, and poor users going without food or shelter because the bulk of their funds is spent on expensive illegal drugs. One crack user described how she financed her habit as follows: "I sold my car. I sold my daughter's bedroom set. The living room set. The rugs. The refrigerator. The washing machine."[57]

Ironically, the economic loss to drug users under prohibition is frequently cited as a justification for prohibition. But this harm is a major cost of prohibition, to be held against it in the debate over legalization.

The total cost of drug-related law enforcement--courts, police, prisons, on all levels of government--is about $10 billion each year.[58] In a sense, each dollar spent on drug enforcement yields seven dollars in economic loss. That is, prohibition takes $10 billion from taxpayers and uses it to raise $80 billion for organized crime and drug dealers, impoverishing many drug users in the process. To pay for expensive black market drugs, poor users then victimize the taxpayers again by stealing $7.5 billion from them. All told, the economic cost of prohibition is about $80 billion each year.

But even this $80 billion figure does not include a number of other negative economic consequences of prohibition that are difficult to estimate. These include

• the lost productivity of those who die as a result of prohibition;
• the lost productivity of those in prison on drug convictions and of drug users who must "hustle" all day to pay for their drugs;[59]
• the costs imposed by organized crime activities funded by drug profits;
• government and private funds spent on prohibition-created illnesses such as AIDS, hepatitis, and accidental overdose; and the funds spent on private security to fight drug-related crime.

Another difficult-to-measure economic cost of prohibition merits special mention: the negative impact of prohibition on the economic viability of inner cities and their inhabitants. Prohibition-related violence and property crime raise costs, make loans and insurance difficult or impossible to secure, and make it difficult to attract skilled workers. Prohibition lures some workers away from legitimate businesses and into the black market, where salaries are astronomically higher. As long as a black market in illegal drugs thrives in the inner cities, it is difficult to see how they can ever become economically viable.

Economic Costs of Drug Use

If prohibition causes at least $80 billion in economic loss each year, what are the economic costs of illegal drug use per se? That is, what costs of drug use would remain even after legalization? The author is unaware of any studies that attempt to directly measure these economic costs. However, an examination of the various components of economic cost indicates that the costs of legal drug use would be less than the costs of legal alcohol and tobacco use.

Crime. As noted above, the biochemical effects of cocaine, heroin, and marijuana in causing violent crime are slight.The drug whose biochemical effects are most closely linked with crime and violence is alcohol.

Accidents. The primary drug associated with accidents is, again, alcohol. Huge numbers of drunk drivers have killed themselves and others on the nation's roads. In a study of 440 fatally injured drivers, "alcohol was by far the drug found most frequently, and the crash responsibility analysis provided evidence of its causal role in crashes," but the role of marijuana and other illegal drugs could not be determined.[60] Heroin was present in very few of the victims. Cocaine, a stimulant, is unlikely to constitute a major accident problem. The Research Triangle Institute study discussed earlier was unable to find evidence that illegal drugs play a major role in causing auto accidents.[61] The point here is not that legalization would have no impact on accidents, but that the impact would likely be far less than that of the already legal drug alcohol.

Health care costs. In the appendix it is argued that tobacco and alcohol are more lethal on a per capita basis than the main illegal drugs. In addition, since the pernicious effects of tobacco and alcohol are primarily chronic and long-term, there can be little doubt that users of these drugs do and will consume greater health care resources than the users of the illegal drugs.

Productivity. Some legal drugs, such as caffeine and nicotine, seem to make people more productive. Others, such as alcohol, seem to make them less productive. Many illegal drugs could impair productivity if used on the job. As with alcohol, however, on-the-job use of a drug is no reason to make a drug illegal.

As a general rule, a worker's productivity is visible and measurable. Thus, when productivity falls, the employer can take action, including firing the worker if appropriate.However, the fact that many companies are adopting drug testing suggests that the impact of illegal drug use on the job is not readily apparent. If it is difficult to discern, it is unlikely to be significantly affecting productivity.

Possibly, the key motivation behind drug testing is the prevention of employee theft. Under legalization, which would greatly reduce the retail price of drugs, theft by employees might well decline. Some of the other reasons given for drug testing, such as the desire to reduce health care costs and increase productivity, seem disingenuous. Few companies test for (or ban) off-the-job nicotine use (associated with high health care costs and absenteeism) or alcohol use (associated with lower productivity), even though the Constitution probably does not bar such testing by private employers.

It is remarkable that the Research Triangle Institute study, so often relied upon to demonstrate the negative impact of illegal drugs on productivity, contains so little solid evidence of such an impact. First, the report concedes that "the statistical analysis of the impact of consumption of drugs other than marijuana yielded no significant results relating abuse of the drugs to household income," arguing that the relatively small number of users of other illegal drugs makes statistical analysis difficult.[62]

Second, the study's conclusion that marijuana use causes a $33 billion economic loss each year is highly dubious. According to the study itself,

The cause and effect relationships among . . . drug abuse, the work environment, and other social factors are not clear. . . . [T]he attitudes, values, and personality traits which underlie substance abuse behaviors as well as others should be incorporated in future analysis; however, it was not possible with the data sets presently available. . . . The drug abuse study, unlike the study on alcohol abuse, obtained no information about events [that] might have been due to abuse of drugs. Questions were not asked about areas in which abuse of alcohol is known to have an impact such as symptomatic drug consumption, interpersonal problems, difficulties in the household, legal entanglements, or problems on the job. By analogy, it would be predicted that drug abuse has impacts in the same areas as alcohol abuse, but this has not been examined by any of the national surveys on drug abuse. . . . It would be too simplistic to suggest that the [cost attributed to marijuana use] could only be due to . . . drug abuse. Plausible alternative explanations can be offered. One alternative may be that . . . drug abuse may be symptomatic of other personal problems.. . . Drug abusers may be self-destructive or have other personality disorders, low orientation toward achievement or low motivation.[63] (emphasis added)

As noted earlier, the Research Triangle Institute study does not separate the costs attributable to prohibition from those attributable to drug use per se. Per se costs could be estimated by discounting the Research Triangle Institute figures by the extent to which they represent costs attributable to prohibition, except that the figures given for lost productivity are unwarranted estimates. The study's estimate of $26.4 billion in economic loss from drug abuse sets the upper limit of possible economic loss from drug use per se. This figure must be discounted by the percentage of costs attributable to prohibition.

The major remaining cost component is crime costs. The study divides these costs into the following categories: "crime careers, drug trafficking, property crime, and various consensual offenses," "victims of crime," "incarceration," and enforcement expenses. The overwhelming majority of these costs--involving drug law enforcement, black market violence, and street crime committed by drug users to pay for expensive illegal drugs--are a direct or indirect cost of prohibition.[64] One can therefore estimate that 90 percent of crime costs are prohibition-related. In addition, federal drug interdiction costs can be completely attributed to prohibition.

The study's estimate of mortality costs can be discounted by 80 percent because, as discussed in the appendix, about 80 percent of illegal-drug-related deaths can be traced to prohibition factors. As for the remaining cost components, there is little doubt that some are prohibition-related. However, for the sake of a conservative estimate, it will be assumed that they would all be incurred under legalization. Table 2 presents the revised Research Triangle Institute figures for the economic cost of drug abuse. In summary,the gross costs of drug abuse are $26.4 billion. Of that, $21.4 billion is the result of prohibition, while $5 billion is the result of drug use per se.

Clogged Courts and Prisons

Each dollar spent enforcing drug laws and fighting the violent crime these laws stimulate is a dollar that cannot be spent fighting other violent crime. The one law enforcement technique that definitely works is the specific deterrence of incarceration. Put a violent career criminal in prison for five years and that person simply will not commit his usual quota of over 100 serious crimes per year.

But right now, there are not enough judges and prosecutors to try cases or enough prison spaces to house convicts. In 1987, the federal prison system had 44,000 inmates, including 16,000 drug offenders, while official capacity was only 28,000.[65] About 40statewide prison systems are operating under court orders due to overcrowding or poor conditions.[66]

Table 2
Discounted Costs of Drug Abuse

Type of Cost	Total Cost ($ millions)	Costs Caused by Prohibition (%)	Costs Caused by Prohibition ($ millions)
Treatment	2,049	0	0
Mortality	2,486	80	1,988
Lost Employment	405	0	0
Crime	20,781	90	18,702
Welfare	3	0	0
Interdiction	677	100	677
Total	26,401	270	21,367

Cost of drug use per se = $5,034 ($26,401 - $21,367).

Source: Author's calculations from H. J. Harwood et al., Economic Costs to Society of Alcohol and Drug Abuse and Mental Illness (Research Triangle Park, N.C.: Research Triangle Institute, 1984).

Note: This calculation omits the $33.3 billion loss attributed tomarijuana use because of the study's dubious methodology.

Because of the sheer lack of prison space, violent criminals frequently are given deals, probation, or shorter terms than they deserve. Then they are back on the streets, and often back to serious crime. For example, in 1987 in New York City, a man who had been released after serving 5 years of a 15-year term for robbery was arrested again for auto theft, released on bail, and finally arrested once more and indicted for rape and robbery at knife point.[67]

In a world of scarce prison resources, sending a drug offender to prison for one year is equivalent to freeing a violent criminal to commit 40 robberies, 7 assaults, 110 burglaries, and 25 auto thefts.[68]

Corruption

Drug money corrupts law enforcement officials. Corruption is a major problem in drug enforcement because drug agents are given tremendous power over desperate persons in possession of large amounts of cash. Drug corruption charges have been leveled against FBI agents, police officers, prison guards, U.S. Customs inspectors, even prosecutors. In 1986, in New York City's 77th Precinct, 12 police officers were arrested for stealing and selling drugs. Miami's problem is worse. In June 1986, seven officers there were indicted for using their jobs to run a drug operation that used murders, threats, and bribery. Add to that two dozen other cases of corruption in the last three years in Miami alone.

We must question a policy that so frequently turns policeofficers into organized criminals. Logically, there are two solutions to drug corruption: Make police officers morally perfect or eliminate the black market in drugs.

Assault on Civil Liberties

The recent drug hysteria has created an atmosphere in which long-cherished rights are discarded whenever drugs are concerned. Urine testing, road blocks, routine strip searches, school locker searches without probable cause, preventive detention, and non-judicial forfeiture of property are now routine weapons in the war on drugs.

These governmental intrusions into our most personal activities are the natural and necessary consequence of drug prohibition. It is no accident that a law review article entitled "Crackdown: The Emerging 'Drug Exception' to the Bill of Rights" was published in 1987.[69] In explaining why drug prohibition, by its very nature, threatens civil liberties, law professor Randy Barnett notes that drug offenses differ from violent crimes in that there is rarely a complaining witness to a drug transaction.[70] Because drug transactions are illegal but their participants are willing, the transactions are hidden from police view. Thus, to be at all effective, drug agents must intrude into the innermost private lives of suspected drug criminals.

The term "innermost" here is no exaggeration. In one case,the Supreme Court "approved a prolonged and humiliating detention of an incomer who was held by customs agents to determine, through her natural bodily processes, whether or not she was carrying narcotics internally," even though probable cause was lacking.[71] In other words, a woman was forced to defecate even though there was no probable cause to believe she was carrying drugs. Because firm evidence of guilt, if it exists, is not obtained until after such intrusions, the privacy of large numbers of innocent people must be violated in the process of enforcing drug laws.

The same principle operates in enforcement efforts seemingly far removed from the invasive practice of body searches. Road-blocks, used with greater frequency in the war on drugs, impose an inconvenience on all citizens for the sake of allowing the police to ferret out a few drug suspects. One of the main purposes of currency reporting laws is to allow government agents to trace cash from drug transactions that is being"laundered." Currently, most cash transactions involving more than $10,000 must be reported to the government. Thus, to allow government agents to search for a relatively small number of drug criminals, the financial privacy of all must be sacrificed. This intrusion is simply another cost of criminalizing an activity in which all the participants are willing.

The dangerous precedents described here are tolerated in the war on drugs, but they represent a permanent increase in government power for all purposes. The tragedy is how cheaply our rights have been sold. Our society was once one in which the very thought of men and women being strip-searched and forced to urinate in the presence of witnesses was revolting. That now seems like a long time ago. And all this for a policy that simply does not work, since it is prohibition itself that causes the very problems that make these extreme measures seem necessary to a befuddled public.