THE FEDERAL WAR ON DRUGS:

TIME FOR A REALITY CHECK? 

(Lecture presented at Thomas Cooley Law School, 1996)

 

Adlai Stevenson once referred to a presidential election as a quadrennial opportunity for leaders to educate the people about the issues confronting the nation.  He might have had in mind the Lincoln-Douglas debates.  Although not part of a presidential campaign, they set a standard for penetrating discussion of the great issues of their day.

Alas, in the twelve presidential campaigns in which I have participated as a voter, there have been no Lincoln-Douglas debates.  Possibly the nadir of our politics came in 1960 when Kennedy and Nixon squared away on the fate of two islets off the shore of China.  But in no sphere of our national politics has the discourse been less informative or more degraded than in the discussion of our laws regulating the use of controlled substances.  I have chosen that topic today in a modest effort to compensate for a longstanding and serious deficiency in our political discussions of an important branch of the law.

Both Senator Dole and President Clinton spoke to the issues in the 1996 campaign.  If one were to judge the practical intelligence and competence of the two candidates on the basis of what they said about the War on Drugs in their nationally televised debates, we might conclude that the nation was in serious trouble to be choosing between them.  They were equally in default. 

Senator Dole proposed to dispatch the National Guard to fight drugs at the border.  Counting seacoast and lakeshores, our nation has well over twenty thousand miles of border to defend.  Heroin and cocaine can be and are imported by an infinite variety of means including submarines, windsurfing rigs, canoes and pilotless aircraft too small to be detected on radar, never mind less subtle means.  Marijuana, by far the most popular illegal substance, is grown in huge quantities in the United States.  Indeed, one estimate is that it is our largest cash crop.  The poppies from which heroin is made and the coca plant from which cocaine is derived can be grown in our greenhouses.  More importantly, heroin or cocaine, or any other substance for which there is a demand can be easily replicated by amateur chemists working in barns or garages anywhere in the United States.  Thus, crack is a cheaply manufactured and more lethal substitute for cocaine.  For these reasons, the attempt to deal with the problem of substance abuse by closing our borders to imports has no chance of success.  Even if we could close our borders, and we cannot, there would be a supply of illicit substances ample to meet every demand.

I do not say that interdiction should be abandoned.  It must be unlawful to import substances that we forbid people to sell or use.  And appropriate effort should be made to enforce smuggling laws.   But it is a measure of the bankruptcy of our political discourse that many others than Senator Dole dwelt on interdiction as if greater effort on that front might succeed in diminishing substance abuse.  Politicians like to propose that solution because it has no domestic political costs and exploits our facile hatred of foreign drug lords whom it pleases us to blame for our own shortcomings and problems.

President Clinton�s solution, on the other hand, was capital punishment for kingpins.  That won�t work either.  There is already ample threat to the lives of kingpins.  They kill one another almost daily, and do so with much more dispatch and efficiency than the government can achieve. And we know from long experience in other countries that capital punishment alone will not deter desperately poor young males when wealth is within their reach.  It is said that the English crown had to give up hanging pickpockets because too many pockets were being picked in the crowds attending the events.  For many young men with more testosterone than saleable skills, the temptations of wealth and accompanying status to be had from the sale of drugs will always be irresistible, no matter what risks attend the activity.  The death of a kingpin merely creates an opening for a new kingpin; when we take one out of circulation, we merely save a rival the trouble of killing him. Capital punishment will serve chiefly to assure that any kingpins we might catch will fight to the death to avoid capture by police, thus resulting in the death of a few more policemen.  It will never prevent the distribution of illegal substances.

This point bears emphasis.  How many persons in Lansing do you suppose are employed in the illicit drug industry?  If we arrested and imprisoned that number, then how many would there be?  The correct answer is the same number.  In the algebra of drug sales, x minus x equals x, because the supply of persons willing and able to enter the market is virtually infinite.  More are being born every day.  Demand drives the supply; that is an elemental truth that the political rhetoric denies.

I am not cynical about our political leaders.  I respect both Senator Dole and President Clinton.  They spoke foolishness about controlling substance abuse because people are unready for any but foolish talk from Presidents addressing my subject.  That has been so for a long time. 

But not as long as you might think.  Thus, only in recent times have Americans thought of such matters as street crime, substance abuse, or violence in the family as appropriate objects of attention for the federal government.  The first federal law on substance abuse was enacted in 1914, and was then almost inadvertent; there was at that time no public clamor or concern.  Herbert Hoover was in 1928 the first President to speak of violent crime as a problem of concern to the federal government.  The crime wave of which he spoke was associated with Prohibition, a relationship that should give us pause.  Increasingly since Hoover�s time, the voters have rewarded presidential and congressional candidates who posed as federal crime-fighters, and none have dared to speak the truth that the most criminal conduct, especially that of greatest concern, including substance abuse, is localized misconduct that can be met, if at all, only at the local level of government. 

I will in these remarks propose steps that might make our national program against substance abuse more effective.  My aim is to encourage public discourse rooted in the realities of substance abuse.  I will first propose to defederalize our response to drugs as much as circumstances permit.  I will then suggest that law enforcement efforts should be more frequently directed at adult users, and that the very severe punishments imposed on their suppliers should be correspondingly relaxed.  Finally, I will suggest that a few states ought to experiment with methods of attacking the illicit drug industry more by economic and less by violent means.

I do not expect with this presentation to persuade the reader that I have the right solutions to the problem of drug law and policy.  Indeed, I am not confident that I do.  And to make my case fully would require a more elaborate presentation of the facts about the forbidden substances and the industry distributing them.  I therefore make some factual assumptions that you will detect and that I will not pause to defend.   I ask  you only to suspend your disbelief long enough to hear my proposals and compare them to those advanced by our political leaders.  My purpose is not to secure enactment of a program, but to open your minds to alternative approaches to the problems.

My first  point is that there is far too much federal enforcement of criminal law.  I have made this point more broadly, but it has particular application to laws bearing on substance abuse.  Your namesake, Thomas Cooley, foretold the federalization of criminal law.  He observed our tendency to move our political concerns up the hierarchy of governments.  People who are dissatisfied with the results of local government, he noted, go to their states, and those dissatisfied with the states importune the federal government.  Ultimately, therefore, issues tend to reach the desk of the President and Congress, without  regard to the suitability of those institutions to the tasks of resolving them.

There are crimes that are distinctly federal such as treason and tax evasion.  But most of the federal criminal law created in this century is redundant to state criminal law.  This is true, for examples, of kidnapping, bank robbing, auto theft, wire fraud, the use or sale of controlled substances, and now violence against women.  In each instance, Congress has responded to a public clamor by sending the FBI, the DEA or AFT to solve a problem that state and local authorities had been unable to control.  Usually, as with drugs, the offending conduct at least sometimes crossed state lines and so threatened the investigative capacities and arrest powers of state authorities. 

There are, however, many demerits to federal law enforcement as compared to enforcement by state and local governments of redundant state laws, and these may be especially applicable to the problems of controlling substances.  First and most simply, federal law enforcement is more expensive.  Federal police, prosecution, courts, and prisons are all conducted more expensively than their state and local counterparts.  And state and local institutions operate with lower overhead and are more cost-effective because they serve more cases in smaller territories.

Second, federal institutions, being less a part of  the communities they serve and protect, have a smaller claim on the moral support of those communities and evoke more resistance from those who feel the weight of law enforcement.  This can be more clearly seen in regard to matters having little to do with substance abuse.  Ruby Ridge, Waco, Oklahoma City, and recent events in West Virginia, were all violent expressions of hostility to the federal government linked to the activities of greatly enlarged federal police forces.  The explosion in Atlanta may have been more of  the same. 

One reason for the historic strength of the federal government has been that state and local governments have absorbed much of the odium of law enforcement, while the federal government provided helpful services rarely requiring adversary contact with citizens.  That circumstance no longer exists, and it is a real loss.  Our constitutional scheme has proved to be very effective at deflecting uncontrolled hatred of local government, but it affords no means of absorbing and deflecting the hatred some people now feel toward the federal government.

Controlling substance abuse is pardigimatically a local problem. Abuse is first and foremost the problem of the families and friends of abusers, and they are the main line of defense.  One reason we have so much abuse, as we all know, is that we have in America too many citizens, both adults and children, who have no families or friends they care about and who care about them. And there is no federal program that can provide substance abusers with a social network capable of providing an effective alternative to their self-destructive activities.  Few who are inclined to use mind-altering substances will be inclined to desist because of anything that the federal government or its officers say or do.  �Just say no� is good advice, but such advice coming from Washington has little chance of a hearing and may even elevate the hostilities of those who create the demand and supply for illicit substances because it underscores the subcultural gulf betweeen those who are in the drug culture and those who strive violently to suppress it.  The marshalling of community sentiment and support to discourage substance abuse is a task for local government, not our great father in Washington.

Third, by the same token, federalization of the substance abuse problem has served to dehumanize our law.  When we think of the problem in national terms, it becomes agreeable mistakenly to see offenders not as our neighbors and co-citizens, and their children, but as demons from hell.  It was federalization that led to the deployment of the rhetoric of war.  State and local governments do not make war.  War is a false rhetoric.  We do not make war on substances, we make war on people.  Few would suggest that Lansing or Michigan are at war against drugs, in part because you know that many of the users and suppliers in your community are human beings to whom you have some connections.  Those who offend federal laws need not be so regarded, for they are abstractions, and it is easy to contemplate the use of extreme measures against them.  This has led to the recurring escalation of punishment of those guilty of supplying illicit substances despite the obvious fact that extreme punishment does not deter the desperate poor from seeking the wealth available to those who participate in that forbidden activity.

Fourth, the maintenance of a large criminal law enforcement arm of the federal government increases the hazards of misconduct and corruption.  Those evils are endemic in criminal law enforcement and cannot be altogether prevented.  The larger the federal institutions, the more frequently police misconduct and corruption will occur.  State offices are not less prone to these evils, but when they infect the federal government, they infect our entire body politic.  And when the federal police are brutal or corrupt, there is no higher government to whom citizens can turn for help.  If we must send our police into peoples� homes to find and seize drugs and paraphernalia, it is far better that they be state officers than federal officers.  If police are to be tempted by the enormous bribes that the illicit industry is able to pay, it is far better that those temptations be placed before local officers.  Indeed, I am informed that the reason the FBI stayed clear of drug law enforcement was that Director Hoover long ago foretold and feared the corruption of drug money.

Fifth, of special concern to us lawyers, federalization has had enormously adverse effects on our federal courts.  Those institutions have a very special role in our government as the main line of defense against the abuse of governmental powers and as fora for the resolution of large and socially consequential disputes.  A distinctive feature  of our national law is that so much of it is privately enforced in civil actions brought in federal courts.  Antitrust, securities, discrimination, civil rights, and environmental laws have generally been enforced by such methods.  But the federal courts are being rendered unfit to serve that purpose because of the large demands made upon them by the federal war on drugs.  There were over twenty thousand drug prosecutions in federal courts last year.  To make room for those cases, the civil dockets of many of our district courts are being swept clear by judges using all manner of means to divert cases into other forums or to dispose of them without trying their merits.  Federal courts are increasingly police courts, while antitrust and employment discrimination laws are being enforced by arbitrators who are not accountable for their fidelity to law.  The secondary and tertiary consequences of this transformation of our law are displeasing to contemplate.

For all these reasons, I propose as much defederalization of drug laws as may be feasible.  The war on drugs can in fact be partially defederalized without any change in the substantive law or any diminution of its deterrent effects.  This can be done by using state institutions to enforce federal laws.  There would still be in a partially defederalized system a division of the Department of Justice responsible for the oversight of drug law enforcement, but the bulk of the officers engaged in that work would be state officers funded by the federal treasury.

How might this be achieved?  Essentially, the idea is to down-size the federal law enforcement staff in much the same way that many corporations are down-sizing, by contracting out much of the routine work to state and local governments.  The first step would be to prosecute most federal drug cases in state courts. The federal government would have to subvent state courts to make them willing partners, but because they are more efficient than federal courts, there would be a net saving to taxpayers.  There is no reason to believe that conviction rates in drug cases would be materially different in state court.  And given the existence of  the sentencing guidelines, there is no reason to believe that the sentences would be materially different, either.  The transfer of 20,000 drug prosecutions to state courts would reduce the criminal docket of federal courts by half, but would have little impact on the dockets of state courts because ninety five percent of the felony prosecutions in the United States are already conducted in state courts.  Thus, the addition of those same 20,000 drug cases would increase the criminal dockets of state courts by about three per cent.

We also have too many federal prosecutors.  Most of those 20,000 drug cases could as well be prosecuted by state prosecutorial offices acting under the direction of the Department of Justice.  The direction would be conducted through contracts made between state and federal governments, by which the federal government would supply funds and guidance, and state and local prosecutors would do the work.  A state or local office that did not respond constructively to federal policy would lose its contract.  Department of Justice lawyers would participate as needed in the selection of cases to be prosecuted under federal law, control important plea bargains, and sit in on major trials.  But their relation to local prosecutors would correspond to the role of house counsel of multi-national corporations who use many law firms around the world.  This is not so very different from the existing situation, for the reason that the Department of Justice has only limited control over the offices of United States Attorneys, many of whom exercise considerable autonomy.  Similar arrangements could be made on the defense side for matters in which accused persons must be provided with defense counsel.

As a third step in defederalization, the Department of Justice could employ state and local police officers in lieu of DEA and AFT officers.  This would have the benign effect of greatly reducing the armies of federal police that we have been amassing in recent years.  As with the prosecutors and defenders, contracts would be the instruments of finance and control.  The federal police would concentrate on auditing the work of their state and local colleagues, both with respect to their effectiveness and their compliance with the rights of citizens who are the objects of searches, seizures, and other unpleasant events associated with effective police work.  Surely, the federal government would need to retain the ability to provide local police with high-tech assistance, managing conventional crime labs, fingerprint files, DNA facilities, and the like.  We would also need to continue the direct federal presence in detecting drug running.  As I have said, interdiction is a genuinely hopeless enterprise, but a policy that cannot be abandoned.

The fourth step would be to transfer some of the federal prisons, together with virtually all the drug offenders, to the states for their management and control.  There is insufficient reason to maintain federal prison beds to deal with substance control enforcement.  In 1980, there were less than 30,000 federal prisoners; today there are about 100,000 and that number will soon double under the weight of the Crime Bill of 1993.  A federal prison bed is enormously expensive.  Federal prisons are not more effective than state prisons. Most federal drug offenders could just as well be incarcerated in state institutions.  That would free federal prison officials for the task of auditing the performance of local jails and state prisons.

None of these steps needs to be taken to the full extent possible.  There may be a few complex drug cases that need to be prosecuted in federal court, some drug crimes such as drug running that require direct federal  investigative work, and an occasional drug offender who needs to be kept in federal custody.  The federal government can and should retain the freedom to respond to such special cases.  But they are rare.  Very little of the enforcement of laws on controlled substances requires direct hands-on involvement of federal officers.

Note also that there is no need to effect all four steps, and no one of them need be done at once.  The down-sizing can be done without laying anyone off.  As federal judges, prosecutors, police and prison personnel  retire or leave, they can be replaced by additional staff in the counterpart state and local offices.  If for any reason, it should appear that this program of defederalization or any part of it was having adverse effects on the effectiveness of  the law, it could be reversed.

This partial defederalization would enable us to divert some of what we now spend on criminal law enforcement into more effective, local educational and socialization programs that address the substance abuse problem in more promising ways, especially the dotoxification of those desiring to be detoxified.  It would place responsibility for the enforcement of drug laws on state and local officials who are much closer to their communities and far more likely to marshall community support for law enforcement efforts.  To be sure, this is no miracle cure.  But it would improve the chances that the criminal justice system would have a benign effect on substance abuse.  And it would have the secondary effect of making our civil liberties more secure.  I see no downside risks associated with partial defederalization other than the disappointment of some federal officers who hoped to be promoted in the ever growing. armies of federal police.

My second proposal is a harder sell.  Its point is that we have mislocated moral responsibility for substance abuse and need to amend our laws to relocate their punitive effects. As I noted earlier, federalization and the mindset of war has made it easier for us to think of drug offenders as distant others, as members of some alien tribe with whom we have no relations and for whom we have no responsibility.  In any case, we now imagine the problem to be centered on a sterotypical transaction in which a dude, probably a black dude, and quite possibly a foreign one, entices a middle class school child or youth to part with his allowance in exchange for a jolt from a controlled substance.  Doubtless there are such transactions every day, and we should do what we can to prevent them and to punish the pushers we can catch.  But the stereotype romanticizes the role of drug pushers and conceals the responsibility of those who create the real market to whom drug merchants respond.

Despicable as pushers are, it is not they who are primarily responsible for our national problem.  In reality, it is not the supply creating the market, but the demand that attracts the supply.  What drives the enormous, illicit, controlled substance industry is not the greed of kingpins and pushers, but the frailties of adult, middle-class citizens who pay whatever price they are required to pay to satisfy their appetites, and of the embezzlers, second-story burglars, and other larcenists who appropriate other peoples� wealth to pay the same high prices to feed their appetites for mind alteration. 

To be sure, addictions formed at an early age contribute to the demand of adults for drugs.  But much less than many of you probably suppose.  Millions of adults have walked away from their drug habits when the chances of life gave them a reason to do so.  The evidence is that it is for most far easier to break the heroin dependency than the tobacco habit, and that alcohol is generally harder to give up than cocaine.  And few people become in any useful sense addicted to marijuana.  Most adults who buy controlled substances do so because they want to, not because they have to.  And we do them no service by supposing otherwise and treating them as helpless victims of pushers.

A few years ago, while waiting for a meeting to begin, I was looking aimlessly out a window into an urban park and observed a young adult black male sitting on a park bench.  While I was looking, an older man appearing by dress and manner to be some sort of executive walked out of the bank across the street and sat on the same bench.  The two exchanged envelopes.  The banker returned to his office, presumably with a cache of cocaine.  His companion left the little park, presumuably with a cache of cash.  Who of the two was the greater malefactor?  Perhaps reasonable minds may differ, but I hold the banker to be the person with the larger share of responsibility for the transaction.  He exposed  his supplier to corruption and serious risks of death at the hands of business rivals, and to imprisonment, whereas his supplier was doing only as many businessmen do, responding to a market demand.  And it was a demand he had done nothing to create.  Yet, if that supplier I observed is still unmurdered, he is likely in prison, while the banker went back to the desk from which he makes loans, and he continues to reward lives of crime resulting in the death or imprisonment of his business associates.  No one, and certainly not the federal government, is making a serious effort to catch that guilty banker.

That is unjust.  If you do not see it that way, you can at least believe that those of  the underclass who bear the burden of the law�s lash do.  There is little moral suasion in law that is so severe in its treatment of the weaker party to the forbidden transaction. Middle class adult consumers are the source of most of the revenue of the outlaw drug industry.  In every city, there are locations where one can observe transactions like the one I describe, with the only difference being that the banker usually remains in an automobile while consummating his deal.  As long as professional entertainers and athletes, and lawyers, doctors, bankers, and Indian chiefs are merely sent to detoxification clinics for rehabilitation if they chance to be caught, while we wage a jihad on the illicit businessmen who supply them, we can hardly expect respect, much less cooperation or restraint on the part of  those underclass persons whom we have declared outlaws.

There is an additional injustice undercutting the moral purpose of  the federal war on drugs.  In important respects, the most destructive substance in use is my own favorite, alcohol, while the most addictive and the most damaging to long-term health is tobacco.  There are, of course, ample reasons to prevent the use of poppy resin, especially in its most powerful form, heroin.  Those reasons are generally applicable as well to the products of the coca leaf.  But we should keep in mind that both have been in widespread recreational use for millenia.  Poppy resin was generally taken in the form of milder morphine or still milder opium, or very mild laudanum until the federal government interceded, causing users to resort to the stronger heroin because it is easier to smuggle.  The case against cannabis in its popular form as marijuana is much, much weaker.  It probably does some lasting harm to the mind and body of users, including possible genetic damage, but even this is not convincingly proven.  And users of cannabis are somewhat more likely to go on to other illicit substances than are non-users, although cause and effect of that relationship are not easily sorted. 

The comparative legal status of these substances with alcohol or tobacco makes little sense to those who are attracted to the illicit alternatives.  Some not unreasonably  suppose that we deal so harshly with the illicit drugs for the very reason that they are produced and vended by the underclass of desperate poor, many of whom are black or Hispanic, whereas alcohol and tobacco are produced and vended by the classy and influential executives of multi-national corporations in which we have invested our retirement accounts.  That interpretation is overborne and is itself unjust, but it contains more truth than we want to acknowledge. A society that keeps saloons open and cigarette vending machines on the streets but imposes capital punishment on those found to possess vendable quantities of poppy resin, coca, or marijuana is not a just society and is asking for a warlike response on the part of  those who by habit or inclination use and sell the latter substances.

I therefore propose that we re-orient our moral judgment about substance abuse.  We should condemn and punish adult users more, and their suppliers less.  And we should bring into a more appropriate relation our treatment of alcohol and tobacco with our treatment of  other ancient mind-altering substances: poppy resin, coca, and cannabis.

Enforcement of the law against users is not easy.  There is no way to do so effectively without invading the privacy of citizens by random drug testing.  Of course, those of us who do not use illicit substances resent the mistrust of us implicit in testing.  And that is nothing to the resentment felt by those users who would be and sometimes are detected.  There is, however, an inescapable choice to be made here between effective law enforcement and privacy.  If we are serious about deterring buyers of illicit substances, as we must be if we are to diminish the market demand, the choice must be to impose testing requirements on many persons.  Such requirements could be imposed by means of moral sanctions as well as legal.  We could begin to despise public officials and officers of corporations who do not voluntarily subject themselves to regular drug-testing.

We know, but we do not act upon the knowledge, that it is the probability of punishment that deters, not its severity.  Severe punishments of users caught by testing are not sensible and or even possible because courts and juries will not impose them.  Administrable sanctions include community service, humiliating bumper stickers, notification of employers, house arrest, and minor jail time for repeat offenders.  I do not belittle or conceal the social costs of effective pursuit of users, but they are the real and necessary costs of any serious effort  to diminish the use of illicit substances by adults.  But widespread drug testing to detect users is the only real weapon against the illicit industry; it would hit that industry where it hurts, on the bottom line.  If we are unwilling to pay the price of using that weapon, then we must conclude that we are not really serious about the just and effective use of law to address the problem of substance abuse, and it is indeed time to think of legalization in some forms. 

President Clinton suggested drug-testing for teenage applicants for drivers� licenses.   If he was seriously trying to be effective, that was not the place to start.  He might better begin by urinating into a bottle and requiring all his cabinet and subcabinet officers to do the same.  We might then extend the circle of mandatory or semi-mandatory, random testees to include others holding significant public offices, officers of publicly-held corporations, entertainment and sports figures, professors and school-teachers, pilots and truck-drivers, and other groups whom you can add to that list.

If we were thus to discourage adult users, we ought at the same time to to lighten up on their suppliers.  Capital punishment and life imprisonment are too severe and underscore the class bias of our present laws.  We can justify substantial punishments on those who stand to profit greatly in  the outlaw industry, but any preventive effect the law can have on their conduct can be achieved by a confiscation of assets and moderate prison sentences with closely supervised parole. 

Lightening up would make the law more just and easier to enforce because it would beget less resistance and more cooperation.  If you are doubtful, compare the moral difference between two situations in which a citizen is aware that a youth in the neighborhood is selling drugs.  In the first, notice to the police will expose the youth to life imprisonment.  In the second, notice to the police would expose him only to intervention, humiliation, and modest punishment.  Which citizen is more likely to call the police?  The more we talk about capital punishment and very long prison terms, the harder we make it to secure citizen support for the enforcement of the law.

My third proposal is still chancier.  Its primary purpose would be to isolate the problem of sales of controlled substances to children.  I will suggest other possible benefits of this proposal, but I would abandon the idea at once if it appeared to have an adverse effect on distributions of illegal substances to young people.  Some, perhaps most of you will reject this idea as legalization.  But I beg you to consider it not as a libertarian scheme to free people from the oppressions of drug laws, a purpose I do not share, but as a communitarian scheme to get public control of an illicit market that we have not the means to eliminate.

My proposal is that state governments be allowed to experiment with public sale of opium, laudanum, cocaine, and marijuana under closely controlled conditions.  In my state of North Carolina, and in a few other states, there are state liquor stores.  The great achievement of  the state liquor store is that it eliminates much of the profit margin in the sale by the bottle of hard liquor, and effectively precludes a black market in that product.  The state store virtually destroyed the moonshine and bootlegging industry.  My aim is to employ that concept to destroy the black market in poppy resin, coca, and cannabis and the outlaw industry that supplies that market.

One condition of state sale of the substances I identified would be to limit purchases to small quantities, no more than one person would be likely to use in a week.  Another condition would be that sales could be made only to residents of the particular zone in which the state store is located, so that each citizen would have one and only one place to which he or she could go to make a purchase, and the frequency of visits could then be restricted.  And, of course, the state would be permitted to sell only to adults.  States could allow local option to exclude state stores from particular towns or townships.

The state would also be forbidden to sell substances not grown in the United States; for that purpose, there would be a licensing scheme authorizing farmers residing on their farms to grow and to sell only to the state small quantities of cannabis, coca, and poppies at a price barely sufficient to induce them to provide the necessary supply.  No profit-seeking agribusiness or manufacturing industry would be allowed to develop in these markets lest supply become a profit center for the rich and powerful.  The state itself would process the substances to put them in usable form.  In this context, the deficiencies of socialism become a virtue because economic efficiency  is not an important aim.  Finally, it would be explicit national policy that the state�s sales would be priced as high as possible consistent with aim of destroying the black market.

The direct effect intended by this program is the destruction of the outlaw industry by wiping out its bottom line.  A state conducting such a program could hope to have very few kingpins or drug lords,  runners or pushers, because there would be no profit in those lines of employment.  If the program succeeded in drying up the outlaw industry, there would be no one having a financial stake in inducing young people to try drugs or in recruiting risk-prone young men to enter such dangerous careers. 

Perfect results would be too much to expect; for example, the outlaw industry might be expected to produce and sell designer drugs and try to survive on products that the state did not provide.  However, one great advantage that the state would have in market competition with outlaws is that it could provide quality control.  A serious risk to users of drugs supplied by the outlaw industry is the absence of quality control.  Outlaws don�t have to worry about regulation or  tort liability, and therefore often sell products that are impure or �cut� in diverse ways.  It is the lack of quality control that accounts for most of the deaths and serious injuries occasionally resulting from the use of heroin and cocaine.  The state government could produce pure materials of even strength and thereby save lives. Sane users would pay more to the state than to outlaws for like quantities of  the same substance.

A secondary effect of the proposal is to provide lawful employment where at present there is unlawful employment.  Young people otherwise headed to a life of crime could be employed in the lawful production and sale of otherwise forbidden substances.

To destroy the outlaw industry would be a formidable achievement.  One guess is that it is presently a seventy billion or so dollar a year industry.  Not only is it unregulated and untaxed, it is a source and a venue for a significant part of the violent crime that mars our social order.  Without it, there would be many fewer drive-by shootings.  And without it, there would be many fewer bribed law enforcement officers and less occasion for midnight police searches and seizures.

I acknowledge uncertainty that this proposal would achieve its aims.  I hold that it would be worth trying in a few states but I also acknowledge that social experiments are harder to conduct than many suppose.  Secondary and tertiary effects are not easily recognized, much less measured,  and spillover influences destroy the laboratory conditions needed to make experimental results reliable.  The latter could be minimized by experimenting in Hawaii or Alaska, two states that would likely be among the first to be willing to try alternative methods of dealing with the issues.

I conclude where I began.  Whatever the flaws of these three proposals, they are surely all better than sending in the National Guard or trying to execute more kingpins.  But when we hear from our leaders ideas such as those, we are getting what we deserve because we have as a nation  blinded ourselves to the absurdities of using the federal government to wage war on drugs, a war, it turns out, that is a war we wage against ourselves.

 

 

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