Recreational Drug Regulation: A Plea for Responsibility

Abstract

That tedious yet terrible phrase, "the war on drugs," perfectly captures at least one truth. U.S. public policy has characterized substances, rather than persons, as the problem. This essay, contributed to a symposium held at the University of Utah S.J. Quinney College of Law, explains the implicit conflict between the premises of prohibition and the criminal law's presumption of responsibility. We then explore how indifference to responsibility has distorted the debate about prohibition. Leaving people out of the equation has led us to miscount both the costs and benefits of drug use, and the costs and benefits of prohibition.

The focus on substances that are said to cause harm, we have managed to exclude consumer welfare from our calculations of costs and benefits. We have managed to count as harms breaches of duty and even failures of potential that by themselves would never be thought by anyone to justify criminal prosecution. The focus on drugs, finally, has misled us into measuring the success of our current policy by the size of marginal changes in consumption. Marginal users, however, inflict only a small fraction of the harms inflicted by users.

My argument is methodological rather than programmatic. It works quite explicitly within the pragmatic tradition of American legislation. So, although indebted to those who have pointed out the tension between drug prohibition based on soft-paternalism and the denial of any drug-based criminal-law excuse, my argument goes very much further. My claim is not that certain defenses of prohibition cannot peacefully coexist with certain reasons for rejecting an addiction defense. Rather, I assert that in the cost-benefit calculations we have been making, we have been thinking like accountants rather than like economists, and thereby acting on distorted assessments of costs and benefits.

My methodological claim does not necessarily point in one direction or another on the legalization issue, although it does cast grave doubt on the present policy of de jure prohibition selectively enforced. If dragooned into the programmatic debate, I would argue for experience with different approaches before we can discount the risk that modifying prohibition will result in a catastrophic epidemic. I find that risk unlikely but not preposterous. We should start with baby steps, like decriminalizing marijuana grown and consumed in the privacy of the home by consenting adults, in a couple of states with large urban populations. At the same time, we should experiment with some expansions of coercive social intervention, such as linking driver's licenses for teenagers to drug-testing, or a government undertaking to administer drug tests at no charge upon parental request. If experience shows that a discriminating focus on users can limit social harm at less cost than prohibition, we would have a warrant for undertaking similar experiments with heroin, cocaine, and methamphetamine.

Above all, my argument suggests very, very limited expectations for public policy. No policy can guarantee long and happy lives to citizens who make self-destructive choices. No policy can avoid some degree of coercive social control over choices about drug use. At present we are using an extreme measure of coercion to achieve distinctly little in the way of public health and safety. If we view our challenge as improving on that, we will have realistic grounds for optimism.

Keywords: drugs, addiction, legalization, prohibition, excuses

JEL Classification: D60, D61, D62, K14