Debating the War on Drugs

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“Exit Strategy for the War on Drugs.” That was the name of the conference held in Seattle on Dec. 1 and 2, 2005. Washington is a “blue” state that approved a ballot initiative to allow marijuana to medical patients. Seattle is a deep-blue city that voted nearly 80% for John Kerry, and before him for Al Gore, and also voted, against the advice of its city attorney, to reduce marijuana possession to the lowest priority of police work. Seattle is a logical place to air the question: if not a war on drugs, then what?

The conference was put on by the King County Bar Association, which for several years has had a project to end the War on Drugs. In 2001 the Bar Association adopted four principles regarding currently banned recreational drugs. I summarize them:

1. Drug policy should create “no more harm than the use of the drugs themselves”;

2. It should address “the underlying causes and the resulting harms” instead of using police and jails;

3. It “should regulate drugs in a manner that recognizes citizens’ individual liberties while answering the need to preserve public health, public safety and public order, especially providing compassionate treatment to those in need”; and

4. It should not waste the taxpayers’ money. ‘

You can see the libertarian principle, and some fences around it.

It was not a conference of libertarians, but mainly of liberals; most of them knew the libertarian answer to drugs and mostly they found it unsatisfying. Kate Pflaumer, who was appointed by President Clinton to be U.S. Attorney in Seattle, was one of several who explicitly said the advocates had to get beyond the libertarian argument. “We have to

deal with kids, expanded use, and social harms,” she said. We do have to deal with these things, at least if we are to be part of the discussion. It is not enough to imagine a responsible adult with the drug in hand – usually a drug that is not dangerous if used properly. That, generally, is what the libertarian imagines when he asks: What business is it of the state to forbid this adult from using this drug? By what right, and to what end, does the state force the user into a steel cage?

That way of putting the question is a neat way of illustrating a libertarian idea. But let’s admit that it’s a set-up, designed to reach a predetermined conclusion. It assumes we are dealing with an adult. It assumes some level of rationality and free choice. It may also assume some level of safety, if we care about safety (which people do care about). It also assumes the drug is in hand, and that it arrived there through some uninteresting process.

All of these assumptions are hazardous. Drug users are not all adults, and a regime of freedom for adults may not imply freedom for nonadults. Drug users start by making a free choice, but once certain choices are made, they may be difficult to unmake. Not impossible, but difficult. Some drugs are not too hazardous, and some are very hazardous.

Consider the question of how the drug arrives in the user’s hand. Does he buy it from a lawful company – that is, a company with an address, corporate officers, and publicly identifiable owners? A company with contracts, obligations, licensing agreements, commercial insurance, and legalliability? A company with employees, and a community image to maintain? A company subject to institutional oversight, governmental or otherwise? Can you imagine a pharmaceutical

Half of the attendees at the conference were for price control on legal marijuana, and three- fourths were for profit controls.


company producing commercial versions of today’s illegal drugs? Marijuana? Cocaine? Heroin? LSD? Magic mushrooms? Ecstasy? Crack? Meth?

“We need a legal framework for drugs,” a man said, “because what we have on the street is lawlessness.” Accept that. But what sort of framework? The one we use for OxyContin? Aspirin? Dill pickles?

During my time at the conference – and I attended about half of it, over two· days – the suggested legal framework for heroin and drugs of similar potency was that they would be dispensed by the government. (For unique U.S. reasons, state government.) Government dispensing has been tried before. Britain has done it with heroin in a small way since the 1920s and Switzerland has done it recently.

Peter Reuter, professor of criminology at the University of Maryland, presented the Swiss example. It was of 1,000 heroin injectors. They were given up to three doses a day, and allowed to use heavy doses (500-600 mg/day), which they tended to do. One result was a sharp reduction in crime. Also, more injectors found work: the share of the enrolled addicts with jobs (presumably lawful jobs) increased from 14% to 32%. The mortality rate fell from 2-3% to about 1% per year. Most of the addicts stayed addicted, though some applied for a dry-out.

These were experiments – islands in a sea of prohibition. The Swiss made heroin available only to experienced injectors. So did the British. In each place there were others using the drugs illegally – in fact, many more others than were using them with permission.

Instead of cops and wardens, most in the group thought heroin should be handled by doctors and social workers. But government would still involve itself. It might require that drugs be packaged a certain way, with warning labels; that the drugs be of a certain dose and purity; that the users not be from out of state; that they sign forms and be registered; that they see a doctor beforehand; that their consumption be monitored by the government; and so on.

Said Roger Goodman, head of the King County Bar Association’s Drug Policy Project, “We’re talking about creating a healthy society.”

Is heroin use healthy? Vancouver, B.C., has the most open drug scene in North America, with several thousand heroin addicts in the East End. The scene is probably less unhealthy than the same amount of heroin use entirely underground, but healthy it is not. Mark Haden, clinical supervisor at Vancouver Coastal Health, said the addicts are “an enormously sick population,” with about one-third of the users infected with HIV and “almost universal hep-C.”

I asked one of the Canadians about the feces problem. I had seen reports on a local weblog that Vancouver junkies had been crapping in public, creating a problems with sanitation. What’s the cause of that? I asked.

“Vegetable matter,” the Canadian said. Huh?


I stared at him.

“There are no public toilets. They have no place to go.”

Oh. On one level, it was common sense. But, I thought, if the addicts make a mess, why do we have to conclude it’s because they haven’t been given enough free stuff? The public authorities are expected to supply them free heroin, free sterile needles, and free “safe injection sites” with polite, nonjudgmental government overseers – and then face the complaint that there are no free toilets.

At the conference, most of the talk of legalizing was about marijuana, and even in this anti-drug-war crowd the attitudes were not as permissive as you might expect.

Deborah Small, executive director of a group in New York called Break the Chains, Communities of Color and the War on Drugs, was one of the most left-wing of the speakers. Her first criticism of the drug laws was that they were biased against the poor and black. She is black. She was fearful of capitalism; her foremost thought about managing legal drugs, induding marijuana, was not to let the corporations have them. “The idea of corporate control is troubling to me,” she said.

“I personally agree with that,” said Goodman of the King County Bar Association, adding that he thought it was a mistake to allow branded alcoholic drinks after Prohibition.

Jeff Haley of the Drug Policy Foundation of Washington said the problem with commercialism is that when money is being made, people have an incentive to sell. You could ban advertising – which most of the attendees, I think, assumed

Making wholesaling illegal and retailing legal makes no logical sense, but it works in the Netherlands.


would be done with any legalized drug – but if the salesmen have a monetary incentive, they will sell.·And that would still be bad. “People who are selling need to have no incentive to sell,” Haley said. “The only way we could think of to do that is to make these people state employees.”

There was a ripple of laughter at that I was thinking of the unhappy prospect of turning brewing into a government monopoly. In my college days a local brewery had put out generic beer – “BEER” brand, black lettering on a plain white label. That had been the closest thing to government heer produced here” and it had tasted pretty bad. A Canadian in the audience stood up and told a similar story about marijuana. His government had produced it for the medical users, who found it “utterly unappealing.” He warned the group not to design “a system of distributing things people won’t want.”

Kris Nyrop of Street Outreach Services in Seattle objected to the no-brands idea. “As a tobacco user, I like having choice in brands,” he said. “I’m afraid that we’re heading too close to paternalism in our conversation here.”

Many of these people were not against paternalism, as such. They wanted paternalism with a human face, or at least a face that was not a policeman.

As for the worry about capitalism creating an incentive to push drugs, the Canadian reminded the audience that social programs had become an industry as well. Government has

American culture today is so different from 1914 that the social effect of legalization would be different.


an economic incentive to push interdiction, controls, jails – and social work, too. “Wherever there’s money involved, and it is tied to jobs, it introduces an incentive,” he said.

Rick Steves, a publisher of travel books who knows the scene in Amsterdam (and is also a board member of NORML, the National Organization for the Reform of Marijuana Laws), said he thought· that for marijuana, “the viable thing for us will be capitalistic, with some regulatory stuff.” I thought it was the most sensible proposal of the day, and noted that Steves was a businessman.

To most of the rest of the people there, profit – corporate profit – was bad. The moderator asked for a show of hands-on various regulatory ideas for marijuana – price controls, profit controls, advertising prohibition, volume discount prohibition, etc. (The Washington State Liquor Control Board forbids any dispenser of alcohol, including beer, from offering two for the price of one.) Half of the attendees at the con-

ference were for price control and three-fourths for profit controls. Profit is, of course, a residual, and “profit control” would have to mean some sort of confiscatory tax.

At one point, someone asked, “Are there profit controls on the liquor industry?”

“No,” the moderator said. There was a silence.

One man who rose to comment was the chairman of the Washington State Liquor Control Board, which owns all the liquor stores in the state and controls all wholesaling of hard liquor. The state of Washington makes a net profit, including taxes, he said, of more than $200 million off gross sales of $600 million from its liquor monopoly. That’s a profit margin of 33%, a level not generally found in private-sector retailing. (Wal-Mart’s profit margin is 3% of sales.)

The profit margins of criminal drug gangs may be higher even than the state of Washington’s, and indeed some attendees worried about what would happen to the entrepreneurs who now serve this market. Cliff Thornton, director of a program in Hartford, Conn., called Efficacy, and a board member of NORML, said, “L~galization without indemnification means nothing to me. We need a strong economic package to build up the inner cities.”

Two blacks had said that – Thornton and Small – and the mostly white audience applauded. But there was also resistance. Ethan Nadelmann of the Drug Policy Alliance – probably the most prominent opponent of marijuana prohibition – said he didn’t want “that condition placed on our thinking.” Decriminalization would be a tough sell without tying it to a new spending program.

In all of this discussion a cord of tension ran between the logical and the possible, between an ideal world and one dimly visible. On the side of the possible was the Dutch experience with marijuana. Craig Reinarman, professor of sociology at the University of California at Santa Cruz, said 288 coffee shops in Amsterdam sold marijuana and hashish. The minimum age was 18. The maximum quantity of purchase was five grams; it had been higher, but the authorities had lowered it. Other drugs were sometimes sold in the cafes, but it was illegal, and cafe owners were liable to be shut down if caught.

Reinarman said the Netherlands had made retailing in these regulated places and amounts legal, but that import and wholesaling were still illegal. The corporations had been kept out of cannabis, and the smugglers still had it. Of course having wholesaling illegal and retailing legal made no logical sense, but it worked in the Netherlands.

Reinarman said drug use among Dutch youth was lower than in the United States or the United Kingdom. He cautioned against drawing conclusions. “The U.S. may be different,” he said. “Conte t and culture are important.”

That was a problem, I thought, with libertarians bring- ing up the America before 1914, when there were virtually no controls on drugs like heroin and cocaine. The culture of today is so different from 1914 that the social effect of legalization would be different. And, of course, there was a social effect then, because if there hadn’t been, the drugs wouldn’t have been banned. You have to care about the social effect.

One of the problems with the conference is that it was a gaggle of wonks. When most of them thought of drug users they thought of serious and sober folk like themselves. Jonathan Wender, a criminologist at Simon Fraser University in Vancouver, ‘reminded the audience that with many drugs the typical users were not people like themselves but “folks you don’t want standing behind you at the ATM.” And, he said, “meth and cocaine are not marijuana.”

The conference speakers didn’t talk about legal methamphetamine, at least when I was there. Two men behind me did. One was a judge. He was talking to the than next to him. “There’s not an ounce of cocaine in all of Cowlitz County, but meth is everywhere,” he said.

I don’t know about meth, and I accept some humility when making pronouncements about it. I hear horrible stories about it – everything from irrational, criminal behavior to “meth mouth,” which is what happens when the drug eats your teeth.

A few days after the conference I happened to talk to the state attorney general, Rob McKenna. I told him I had been to this drug-legalization conference and he said, “What did they say about meth? Did they want to legalize that?”

I hadn’t heard anything about legalizing meth. That was notable, since it’s the drug the politicians and prosecutors talk about most. In the King County Bar Association’s materials, it said that any changes in the drug laws would have to “take place incrementally,” one drug at a time, “probably beginning with cannabis and the opiates.” Any program to deprohibit a drug would have to be evaluated afterward for “public order, public health and public costs,” being always subject to modification or repeal. We are a long, long way from legalizing meth.

What would libertarians do about a drug like that?

Under commercial law, which applies to above-ground businesses with official addresses and visible owners, if you start selling products that kill people, addict them, wreck their health, “cause” them to commit crimes, or even to rot their teeth, you have a problem of liability. Imagine a company like Pfizer or Merck selling meth. Given the liability, could a manufacturer of such a product get insurance?

Imagine a company like Pfizer or Merck sell- ing meth. Given the liability, could a manufacturer of such a product get insurance?

Could it get a bank loan? A letter of credit? Never mind the governmental stuff, like FDA approval of its manufacturing plant. Could it get a retail chain to stock its product? Maybe it would sell by mail-order, and advertise on cable TV. Maybe the cable TV company would have a visit from its insurance company. Maybe the drug would still be cooked up in shabby mobile homes in the woods, and sold by street peddlers.

Liberals are not going to allow any drug to be cooked up in shabby mobile homes and sold by street peddlers. Maybe libertarians would. Something to think about.

The King County Bar Association suggested in the handouts that there be “severe limits on advertising and promotion” of any legalized psychoactive drugs, “as strict as the law would allow within the constitutional protections of free speech.” There was a suggestion that the state forbid branded drugs, so as to avoid switching on any inconvenient First Amendment rights. There was also a suggestion for a program of “aggressive, state-sponsored counter-advertising.”

What would be the institutional framework in a libertarian society of drugs that addict people, cause them to act irrationally and in various ways destroy their health? Granted that people who chose to use these drugs would not be jailed on that account. But what, if anything, would happen to the manufacturer of a product that killed 2% of users

Simply arguing that if you have a drug in your hand you should be allowed to take it is not answering the question.

every year? Or that enticed the user to quit his job and run his entire net worth up his nose? I knew somebody who did that: it can happen now, under prohibition. But under prohibition, you can’t sue anybody for it.

I am not arguing in favor of prohibition. Clearly, it does not work well. The human costs of prohibition are very high. But with some of these drugs, it is not clear that complete freedom would work, either. And, yes, I know, there are libertarians who don’t care about’ social effects, or who assume the optimal social effect will be reached through the intersection of supply, demand, and marginal pain – or some other mechanism. They are the inspiration of the joke: “How many libertarians does it take to screw in a light bulb?” Answer: “None. The market will take care of it.”

Probably if prohibition ended, and government washed its hands of drug control, private institutions would arise to deal with the problems. Whether such institutions would deal with them more successfully than the state does now is a question worth asking. The conference I attended did not ask it, but libertarians should. Simply arguing that if you have a drug in your hand you should be allowed to take it is not answering the question. To advance liberty you have to think about liability and responsibility; about how the drug reaches you and what you expect of the manufacturer and distributor. You have to think about the kind of world you’re creating and whether people could stand to live in it.

Probably we will have a very long time to think about these things, because the political momentum to repeal the drug laws is still weak. Only one state legislator attended the King County Bar Association’s drug conference – State Sen. Adam Kline, Democrat, lawyer, at the outer edge of liberal. He told me his criticism of drug prohibition was not difficult for him, given his Seattle constituency. “It is difficult for a lot of my colleagues,” he said, speaking for Democrats as well as Republicans. “We are dealing with something that some people feel is inherently criminal.”

If not a crime, then a vice: still a problem.

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