The Hidden Costs of Drug Prohibition

This article appeared in the American Consequences on March 19, 2019.
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For over 100 years, America’s drug war has been a part of our lives. For those, like me, who grew up consuming Reagan-era anti-drug propaganda, the drug war resembled a holy crusade of purification more than a criminal-justice problem. Murderers, robbers, and rapists were treated as criminals of opportunity and desire, but drug users were moralized in the language of sin and redemption. It wasn’t until I was a teenager that I asked the most basic and fundamental question about the drug war: Why do heroin addicts get cages and alcoholics get treatment?

Only by asking that question was I able to cut through the pall of anti-drug propaganda that had been pulled over my eyes. It’s often observed that, during wartime, home-front propaganda focuses on dehumanizing the enemy. The Vietnamese became “Gooks,” Germans became “Huns,” and Japanese became “Japs.” Converting your enemy to a subhuman thing seems almost necessary if we’re going to ask soldiers to do something that is supposed to be morally prohibited — namely kill another human being.

Similarly, spending a day on the front lines of the drug war and then going out for drinks after work requires some form of mental gymnastics. Illicit drug users become “junkies,” while alcoholics are lovingly given the bucolic name “lushes.” The drug war, like so many legal prohibitions on vices and private behavior, is rooted in the dehumanization of the drug users usually based on racial stereotypes and moralistic class warfare. That’s why heroin users get cages.

But heroin users — as well as users of other illicit drugs — get more than cages. Due to drug prohibition, illicit drug users get dangerous and overly potent drugs. Due to drug prohibition, we all get a hostile and increasingly ineffective system of law enforcement that violates civil liberties on a daily basis. And due to drug prohibition, we have millions of people under some form of criminal-justice supervision, whether it’s jail, prison, or probation, all because of the racially charged fears of white men 80-100 years ago. Many of the costs of drug prohibition are well known, but some of the most insidious and invidious costs are under-discussed. Listen…

Creating and Killing Drug Addicts

Black-market drugs are often tainted with various impurities and poisons. Their potency is often unknown, endangering users with the possibility of overdose. These are well-known consequences of drug prohibition. A less well-known consequence, however, is how drug prohibition makes drugs stronger and therefore both more dangerous and more addictive.

It’s easy to see why. Under prohibition, illicit smugglers prefer the highest-potency version of a drug in order to make smuggling easier and less exposed to law enforcement. Economists call this the iron law of prohibition, and it shows up whenever drug potency is easily variable. During alcohol Prohibition in America, for example, low-potency drinks like beer and wine became extremely difficult to find, with the cost of beer increasing to approximately 700% of its pre-Prohibition price. Casual drinkers who would usually prefer less-intoxicating drinks were forced to switch to higher-potency spirits. Yet, when Prohibition ended, the vast majority of drinkers returned to beer and wine, demonstrating that the consumption pattern during Prohibition was determined more by supply than by demand.

Similarly, prior to the first major federal drug law, the Harrison Narcotics Tax Act of 1914, low-potency opiates in the form of tinctures and soothing syrups were widely available in stores. There were many addicts before the Harrison Narcotics Tax Act — particularly older white women who relied on laudanum and other opium tinctures to get through the day — and that didn’t change after the Act went into effect in 1915. What changed was the opiates they could access, as the supply of low-potency drugs dried up and were replaced by higher potency morphine and heroin.

By pushing users toward increasingly potent forms of drugs, prohibition quite literally kills people via accidental overdoses.

In this way, drug prohibition helps create drug addicts. And by pushing users toward increasingly potent forms of drugs, prohibition quite literally kills people via accidental overdoses. Nowhere is this more obvious than in the ongoing opioid overdose crisis in the United States, which is really a heroin and fentanyl crisis. Fentanyl — a synthetic opioid that is 50-100 times more powerful than heroin — has crept into our drug supply with deadly results, with nearly 30,000 dead from fentanyl overdoses in 2017 alone.

But just as during alcohol Prohibition, fentanyl’s spread is much more due to supply than demand. While some users like fentanyl’s quick-acting fix, most seem to prefer lighter opioids like heroin, but the black market doesn’t give them a choice. Users are also scared of fentanyl, which is so potent that a small amount that unknowingly taints a user’s regular heroin or cocaine supply can mean death.

And while our current opioid crisis is associated with white people in middle America — for good reason — African Americans are beginning to die at an increasing rate. Initially, fentanyl infested the opioid supply of rural and suburban areas, with the fatal overdose rate for white Americans increasing 53.7% from 2005 to 2014, while the African American overdose rate only increased by 12.1%, according to the Washington Post. From 2014 to 2017, however, the fatal overdose rate for African Americans spiked by 94.1%, almost all due to fentanyl.

Fentanyl’s introduction to the American drug supply demonstrates the iron law of prohibition in its most acute and lethal form. Thousands of doses of fentanyl can be mailed in a normal-sized envelope, and we don’t have the manpower or technology to stop it. Some are now wondering whether fentanyl will eventually displace heroin almost entirely. Will prohibitionists be willing to accept 50,000-100,000 overdoses per year as the new normal, or will they realize that prohibition kills?

Hostile and Ineffective Policing

Prohibition fundamentally changes the relationship between law enforcement and citizens. Traditional police work relies on the assistance of victims and would-be victims in both solving and preventing crimes. A robbery victim typically invites the police into his home, lets them take evidence, and assists in other ways to help find the criminal. People also take steps to prevent crime by installing security systems, carrying weapons for personal protection, and reporting suspicious activity. Without citizens’ assistance in crime solving and prevention, effective policing would be nearly impossible.

Everything changes when the criminal and victim are supposedly the same person — as is the case with drug users during prohibition.

But everything changes when the criminal and victim are supposedly the same person — as is the case with drug users during prohibition. Policing becomes less collaborative and more antagonistic. Because drug users are not going to call the police and ask them to take evidence, police must find other ways of solving and preventing this “crime.” If the user or dealer is not going to invite them in to look for evidence, they’ll just break their door down with a “no-knock” warrant. If the user is not going to assist police in reporting the crime, then they’ll have to use various surveillance technologies to find out what the “victim” is unwilling to divulge.

More often than not, the Supreme Court has held that the Fourth Amendment’s prohibition on unreasonable searches and seizures does not prevent police from using invasive and hostile methods to search for drugs. Police can use helicopters and airplanes to surveil backyards from the air. They can bring drug-sniffing dogs to traffic stops that seem to always magically “alert” whenever the officer has a hunch. They can even seize that car and have it forfeited to the government on the mere “say-so” of a dog hoping to get a treat from his handler.

And, as many Americans found out during the riots in Ferguson, Missouri, our police now resemble soldiers doing street sweeps in Fallujah. That resemblance is more than coincidental. Surplus American military gear, including armored personnel carriers, heavy weaponry, and body armor, has been given to local police departments around the country for decades. Those SWAT teams are then using that gear to violently enter residences, often by using battering rams, flash grenades, and shooting the family dog. But these paramilitary police units are not usually kicking down the doors of kidnappers, murderers, or weapons traffickers. They’re usually — 62% of the time — searching for drugs.

It should come as no surprise that these heavy-handed policing tactics tend to be disproportionately used against racial and ethnic minorities. Although it has long been known that blacks and whites use drugs at about the same rate, blacks are roughly ten times more likely to be arrested for drug crimes. In almost every interaction with police, blacks and Hispanics are more likely to be searched and harassed. The Department of Justice’s investigation of the Ferguson Police Department found that blacks were two times more likely than whites to be searched during a traffic stop but were 26% less likely to be found with contraband.

Police-citizen interactions are now more characterized by hostility than helpfulness, particularly in minority neighborhoods. This isn’t Norman Rockwell’s America anymore. Officer Friendly has been replaced with Officer Shut the F*** Up, and that has led to immense problems with solving actual crimes — violent and property crime — again, particularly in poor, minority neighborhoods. When citizens aren’t willing to assist in police investigations, police work becomes immeasurably more difficult. America’s murder clearance rate — that is the rate at which murders are solved — was a dismal 61.6% in 2017, and some cities, such as Baltimore, Chicago, and Detroit, the clearance rate was under 30%. If the victim is black, it’s even worse. Over a 13-year period in Los Angeles, an arrest was made in only 38% of the 2,677 killings of black male victims. Nationwide, aggravated assaults are solved only 53.4% of the time, and for other violent and property crimes, such as rape (34.5%), it’s even worse. Yet, according to one study, between 2002 and 2012, NYC police officers spent one million hours making 440,000 arrests for marijuana possession. And throughout the nation in 2016, even after marijuana legalization had begun in some states, more people were arrested for marijuana violations than all murder, rape, aggravated assault, and robbery arrests combined.

And as the backlog of murder cases builds up on the detectives’ desks, the SWAT team is gearing up to kick down the door of another suspected drug user or dealer.

Arrest and Incarceration

Incarcerating drug users is not only inhumane, it’s silly. Addicts continue to use despite losing jobs, money, loved ones, their health, and so much more. In fact, drug addiction is defined as the compulsive use of a substance despite negative consequences. Therefore, “if adding punishment worked to fight addiction,” writes addiction researcher (and former addict) Maia Szalavitz, “the condition itself couldn’t exist.” Yet we continue on with the old mantra: “Taking drugs will ruin your life, so if you take drugs we’re going to ruin your life.”

Those who are felons for violating drug laws at best are hurting only themselves and at worst are helping other people hurt themselves.

Being caught with drugs can truly ruin your life. Under federal law, students with drug convictions become ineligible for federal financial aid, and approximately 200,000 students have been denied aid since 1998. Moreover, those convicted of felonies suffer lifelong problems with employment, housing, and education. One study estimated that the diminished employment prospects of felons can cost between $78 and $87 billion in any given year. Of course, many violent and property felons deserve incarceration, but those who are felons for violating drug laws at best are hurting only themselves and at worst are helping other people hurt themselves. They don’t deserve to have their lives destroyed.

In 2016, the last year for which comprehensive data are available, approximately half of all federal prisoners, about 81,900 people, have a drug charge as their most serious offense. But most prisoners in the United States are in state prison, where about 15% of the inmates, or 197,200 people, are serving time for drugs.

But there are many ways someone can be caught up in the criminal justice system other than going to prison. In 2017 there were over 1.6 million arrests for drug violations, which makes it the largest category of arrests by a substantial margin. Of those arrests, 85% were for possession only. For those who did not see substantial jail time, probation or other types of supervision were likely. In 2016 there were approximately 3.7 million people on probation, with a quarter of them (about 900,000) serving for drug offenses.

Finally, as always, arrests and incarceration for drug offenses fall disproportionately on minority populations. Of all the arrests for drug violations in 2017, 46.9% were black or Latino. Again, this is despite roughly equal drug-use rates for whites, blacks, and Latinos.

Drug addicts are human beings

That’s the title of a remarkable book from 1938 written by Dr. Henry Smith Williams. Williams excoriated the effects of the 1914 Harrison Narcotics Tax Act in no uncertain terms.

The law’s only effects were to raise up an army of dope smugglers and peddlers; to increase the company of drug addicts; to change thousands of self-supporting, law-abiding citizens into outcast derelicts and petty criminals; to crowd court calendars and jam the corridors of prisons; to inaugurate an era of persecution of sick people; and to impose on the country a tax-burden of at least a billion dollars a year.

Nearly 80 years later, little has changed. While the move toward marijuana legalization has been a welcome development, we need to do more. Treating drug addicts like human beings is a good first step.

Trevor Burrus

Trevor Burrus is a research fellow in the Cato Institute’s Robert A. Levy Center for Constitutional Studies and in the Center for the Study of Science, as well as editor-in-chief of the Cato Supreme Court Review. He is also the co-host of Free Thoughts a weekly podcast that covers topics in libertarian theory, history, and philosophy.