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Toward a Moral Drug Policy by Richard J. Dennis
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"We, in our search for moral authority,
have taken to worshiping the false idol of
government. We forget that the purpose
of law is to prevent mayhem between
men; the purpose of morality and religion
is to persuade men to change their
behavior voluntarily."
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Cato's Letter #6
TOWARD A MORAL DRUG POLICY
by Richard J. Dennis
Copyright 1991 by the Cato Institute
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Cato's Letters is a series of distinguished essays
on political economy and public policy. The
Cato Institute takes its name from an earlier
series of CATO'S LETTERS, essays on political
liberty written by John Trenchard and Thomas
Gordon in the 18th century, which were widely
read in the American colonies and played a
major role in laying the philosophical foundation
for the American Revolution.
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I'm a retired commodity trader who has turned his interest to politics and
public policy. I traded in commodities futures for nearly 20 years and was
reasonably successful. I'm still a trader at heart. A trader is a skeptic.
Trading has taught me not to take the conventional wisdom for granted. What
money I made in trading is testimony to the fact that the majority is wrong a
lot of the time; the vast majority is wrong even more of the time. I've
learned that markets, which are often just mad crowds, are often irrational;
when emotionally overwrought, they're almost always wrong.
I consider myself a man of reason. Having come from a middle-class background
and earned a college degree in philosophy. I've come to believe strongly that
we are what we know. I believe in facts--getting them, understanding them, and
deducing truth from them. I firmly believe that the truth shall set us free.
That doesn't mean, however, that I'm alienated from the world of the spirit. I
grew up in an Irish-Catholic family on the South Side of Chicago. Mu
institutional values were very strong, if somewhat confused. My holy trinity
consisted of the Catholic church, the Democratic Party, and the Chicago White
Sox. I really thought for a long time that the Pledge of Allegiance was a
Catholic prayer, just like the Our Father that preceded it every school day. I
would describe my early value system as nourishing, if limited. The idea of
illegal drug use would have been silly in that traditional environment.
That doesn't mean the idyllic 1950s were innocent of substance abuse. When my
father took me to Hurley's Tavern, I saw people falling off their bar
stools--about what you'd expect from people who called whiskey "Irish pop."
But throwing those individuals behind bars was the farthest thing from anyone's
mind. There were still blue laws against bowling on Sunday, and things of that
nature, but no one really believed in sending people to jail for crimes without
victims. Fighting alcohol abuse was a job for the family or the parish priest,
not the police commander.
How much of my holy trinity informs me as an adult? In the White Sox I have a
deep and abiding faith, which was nearly rewarded last year. In the Democratic
party I have shallow and fading faith, which is almost never rewarded. In the
church, well,...I fear 16 years of Catholic education left me a skeptic. Or
more truly, I'm proof of the old saw that you can take the man out of the
church but not the church out of the man.
My drug policy views are those of a modern empiricist and humanist who believes
our current policies are based on mistakes of fact and illogical theories. In
other words, the analyst in me is horrified. But I have to admit it's the
spiritual side of me formed by the moral exhortations of my youth that is most
repulsed by the drug war.
I wonder: why do we hate the drug culture so much? Why do we seek to punish
so severely people who use drugs?
Part of the reason is fear and uninformed opinion. For example, 60 percent of
Americans believe marijuana is physically addicting; 57 percent believe it is
at least as addictive as alcohol and cigarettes; and 76 percent believe its use
leads to use of stronger drugs. Fifty-two percent of Americans believe heroin
makes people crazy, violent, and psychotic. All those beliefs are unsupported.
But more central to our hostility than mere ignorance is the erosion of
traditional authority and belief. The decline of religious influence and
personal morality has paralleled the rise of drug use and permissiveness. The
drug culture has come to symbolize upheaval and sickness of the soul. Drug use
expresses the meaninglessness and dissatisfaction of many of our lives. The
law has become the means by which we try to censor the meaning of the drug
culture. We're attempting to kill the messenger who bears the bad news.
I believe that we, in our search for moral authority, have taken to worshiping
the false idol of government. We forget that the purpose of law is to prevent
mayhem between men; the purpose of morality and religion is to persuade men to
change their behavior voluntarily.
I know there are some revisionists who reject the quintessentially American
principle of minimal government. They descend philosophically from Plato
through Hegel and believe in the inculcation of morality by the state. They
are the people Karl Popper rightly calls "the enemies of an open society."
They have a point of view both reprehensibly intrusive and stunningly na?ve
about the ability of government to mandate a strengthening of the social
fabric. One would think a government that efficient might have balanced its
budget or procured its weapons rationally long before now.
Drug use is at last partly the result of the angst of our times. In many cases
it is a futile attempt to distract ourselves from the difficulties of finding
peace of mind. It's a bad form of self-medication intended to give short-term
relief. In that respect it's much like alcohol, pornography, political
fanaticism, and mystical cults. Like those other vices, drug use is not
particularly harmful in moderation--certainly not for the great majority who
indulge in soft drugs. Hard drugs are morally more problematic. Those whose
drug-use pattern is clearly self-destructive are committing a great wrong but,
I believe, not a legally punishable act. Drug use is a classic victimless
crime.
Someone wiser than I will have to find a solution to existential man, alone and
afraid in a world he never made. But however humanity deals with its
metaphysical conundrums, the solution should not be coercive. The resounding
failure of Marxism demonstrates the bankruptcy of that approach. Instead,
let's have enough confidence to confront what we believe to be evil and truly
endeavor to cast it out of hearts and minds instead of merely casting bodies
into jail.
The cultural deviance represented by drug use needs to be confronted, not
suppressed. Legal repression is something we don't consider for practices at
least as bad as drug use--with good reason. Racists or Satanists may face
ostracism, but not prison. We've wisely determined in this country that ethics
must be separate from the law. That allows Americans the widest possible
choice in personal morality. We believe in free competition in the marketplace
of ideas, and, as long as they don't clearly and directly injure others, we
allow bad personal practices to be followed, revealed for what they are, and
countered. That's why we have Communists teaching at universities and David
Duke running for U.S. Senate. The most effective way to defeat a moral evil is
to allow it, debate it, and discredit it. Repression allows moral evils to be
romanticized and strengthened. Our goal should be to encourage a learning
process that enables individuals to draw their own conclusions. We shouldn't
use compulsion to short-circuit that process by stifling immoral thought or
practice. Those who wonder if decriminalization sends the wrong signal to kids
about drugs ought to worry more about the signal we send to them when we
pretend morality flows from the barrel of a gun.
When we eliminate all the abstractions, the drug war is one group of people
deciding that other members of society should be threatened with jail for their
arguably bad and sinful habits. All claims about the social harm of drug use
are rationalizations for one of society's nastiest tendencies--punishing what
it doesn't like rather than expressing disapproval humanely. Drug laws are a
barbarous relic of an idea we rejected a long time ago--that people don't have
an inherent right to do what they want with their own lives as long as it
doesn't directly harm another person. Our drug laws reflect an almost medieval
tribalism more appropriate in Tehran or Baghdad than in Washington. In sum,
the war on drugs is fundamentally uncompassionate, irreligious, and immoral.
Most arguments for laws prohibiting drug use fall into one of four general
categories--all wrongheaded. First, some people offer as a rationale for
anti-drug laws the prevention of self-injury. That rationale is absurd on its
face. It's nothing short of totalitarianism to put people in jail t prevent
them from harming themselves. Looking out for others may be a laudable goal,
but you can't be your brother's jailer. The self-injury rationale shows the
danger of leaving on the books antiquated laws against victimless crimes such
as suicide, consensual adult sexual behavior, and shopping on Sunday. Someday,
some czar will take them seriously.
A second erroneous rationale for drug prohibition is that harsh laws are
necessary to prevent driving under the influence of drugs, the committing of
violent crimes while on drugs, and the sale of such drugs to minors. All of
those acts are proscribed under current law; their criminality wouldn't change
if drugs were legalized. If an act is illegal under the influence of alcohol,
it would remain illegal under the influence of legal drugs. The possibility of
performing dangerous activities under the influence of a psychoactive substance
is no reason for banning the substance. Most Americans wouldn't consider
prohibiting the sale of alcohol to prevent instances of drunk driving. So why
should we ban drugs to prevent similar misuse?
I would describe the third faulty rationale for laws against drugs as
poachingly paternalistic. That argument implies that, since drug use hurts
family and friends, it ought to be outlawed. The premise of the argument may
be true enough; drug use can have deleterious effects on those close to the
user. Again, ameliorating such wrongs used to be a job for clergy and
counselors. If laws can be passed against poor social behavior, why not have
jail terms for those who are cruel or selfish or practice other hurtful
behavior toward friends and family? We could never find enough jail space to
hold the offenders, since we're all guilty at times of being far less than
perfect.
I would classify the final rationale for outlawing drugs as stiflingly statist.
It is an argument based on the economic consequences of drug use, such as a
lower GNP, a diminished tax base, and health and welfare costs. But many
things besides drug use can affect one's economic performance, including
laziness, obesity, and even marital status. The premise of this argument is
fundamentally repulsive, because it reduces the measure of human worth to a
person's productive capacity. It says we exist to serve the state and maximize
the GNP, and all "unproductive" behavior should be subject to regulation. Or
that receiving public charity consigns one to less than full citizenship. The
Soviet gulag represents the logical extension of the argument. No American
should want to move in that direction.
The fact is that drug use is as harmless for the 90 percent of users who are
not addicts as alcohol use is for the 90 percent of the drinking public who are
not alcoholics. For the addict, just as the alcoholic, there is great
potential for self-harm and anti-social and immoral behavior. That drugs do
considerable harm cannot obscure the fact that their use is a victimless crime.
All claims to the contrary are sophistic.
In addition, the illegality of drugs gives rise to serious harms that are the
consequence of prohibition, not consumption. They include the theft and
violent crime associated with the high cost of illegal drugs, the enpowerment
of organized crime, and the consequent ruin of neighborhoods. All sumptuary
laws are fundamentally flawed, because they raise the reward for dealing in
contraband. A war on any contraband that is as deeply embedded in our culture
as are illegal drugs just multiplies the cost of using the wrong method to
solve a perceived social problem. After all, more people in this country have
tried pot than are Roman Catholics. And more Americans used cocaine last year
than are Jewish.
Even if the war on drugs were able to end drug use, it would be at tremendous
cost to our values and liberties. The path the drug warriors would have us
follow is a slippery slope, threatening irreparable harm to our fundamental
rights and constitutional protections. Fourth Amendment protections against
unreasonable search and seizure have already been weakened significantly. In
the interest of fighting the drug war, our courts are reducing the standards
for demonstrating probable cause, allowing the admission of illegally obtained
evidence, and sanctioning confiscation of property without due process. Long
prison sentences for possession offenses are the embodiment of cruel and
unusual punishment. And the right to privacy--a fundamental American
concept--has been placed in jeopardy by rulings that allow surveillance by
helicopter and policies that encourage children to report on their parents. If
we win the war on drugs, we may well lose the Bill of Rights. Is that a trade
worth making?
Unfortunately, for a majority of Americans the answer may be yes. The drug
warriors and the media largely have ruled out any serious discussion of more
sensible alternatives to current policy. And Americans understand intuitively
that conventional law enforcement and court procedures stand no chance of
retarding drug use. In the absence of serious debate about the merits of
legalization, the only recourse they can see is to militarization. For
example, a poll that I commissioned last year found that only 23 percent of
Americans would fully protect the civil rights of all AMericans in the effort
to fight the drug problem, and 71 percent would grant police power to the
military to fight drugs in their neighborhoods. We can all be grateful for the
wisdom of our nation's Founding Fathers who required supermajorities to enact
constitutional changes.
Americans are willing to countenance an assault on their rights because they
fear drug-dealing gangs and foreign narcoterrorists. Ironically, legalization
would instantly disempower those elements without sacrificing our fundamental
freedoms. Virtually overnight, crime and corruption would be reduced. The
drug cartels would be shattered. Public resources could be diverted to
meaningful education and treatment programs.
Legalization would require us to make some critical distinctions among drugs
and drug users. The drug warriors approach the problem as a seamless web--all
drugs are equally abhorrent. But in fact crack and heroin are harmful in ways
the marijuana is not. The failure to distinguish among different drugs and
their consequences serves only to discredit the anti-drug effort, especially
among young people. It also disperses law enforcement efforts, rendering them
hopelessly ineffective. Instead of investing immense resources in a vain
attempt to control the behavior of adults, we should put out money where the
crisis is. Why spend even a penny to prosecute pot users when the focus should
be on the crack pusher in the grade school?
The appropriate standard for deciding if a drug should be made legal for adults
ought to be whether it is more likely than alcohol to cause direct harm to an
innocent bystander. If not, banning it cannot be justified while alcohol
remains legal. A sensible legalization plan would allow users of marijuana to
buy it legally. Small dealers could sell it legally but would be regulated, as
beer dealers are now. Their suppliers would be licensed and regulated.
Selling marijuana to minors would be penalized.
Users of cocaine should be able to but it in shops akin to liquor stores
(though we should have more restrictive zoning than we do for liquor stores).
It's critical to remove the black-market profit from cocaine in order to
destabilize organized crime and impoverish pushers. Selling cocaine to minors
would be criminal, as it is now, and infractions could be more readily detected
if police efforts were better concentrated.
The advent of methadone clinics shows that society has realized that some
heroin addicts require maintenance. But there is little practical difference
between methadone and heroin, and methadone clinics don't get people off
methadone. Heroin addicts should be able to get what they need at market
prices, so they don't have to steal to support their habit. That would make
heroin unprofitable for its pushers. And allowing users access to uninfected
needles would help stop the spread of AIDS and might help coax addicts into
treatment centers.
If the war on drugs is exacerbating rather than solving the problem, how do we
reverse the policy? Much as the veterans themselves helped stop the Vietnam
War, those on the front lines of the drug war are in the best position to
question its effectiveness and lend credibility to peaceful alternatives.
First among the front-line groups are members of the law enforcement community,
who are burdened with enforcing a hopeless policy. The tremendous sums of cash
reaped by drug dealers provide a ready means for sowing corruption. Those
funds also make possible the purchase of arsenals of weapons that far exceed
anything available to police departments. Furthermore, laws can provide little
or no deterrent to the dealers. A recent RAND Corporation study of drug
dealers in Washington, D.C., found that, for each day they did so, street
dealers who sold drugs more than one day a week stood more than a 1-in-5 chance
of being imprisoned for each year they sold drugs, more than a 1-in-14 chance
of being seriously injured, and more than a 1-in-70 chance of being killed--a
fatality rate 100 time greater than that for the general work force. When
dealers aren't discouraged by the prospect of doing time or being executed,
those charged with enforcing the drug laws become extremely vulnerable.
A second group that could help redirect our drug policies are the judges and
court officers buried beneath an avalanche of drug prosecutions. Many of the
cases crowding the dockets involve mere possession. As the wheels of our
criminal justice system grind to a halt, the chief beneficiaries are violent
criminals who are doing harm to others. Researcher James Ostrowski has reported
that 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. To prove their toughness on drugs and crime, legislators pass
more draconian laws and seek to limit the discretion of judges. One federal
judge recently resigned from the bench, complaining that the laws mandating
sentences had removed his ability to render proper judgment. Many judges are
called on to impose harsh sentences that are grossly disproportionate to the
harm caused by a victimless crime. We can't build jail cells or courtrooms
fast enough to handle all those who've been caught in the drug czar's "user
accountability" dragnet--and we shouldn't try to.
A third group that could draw attention to the destructiveness of the drug war
are the health care professionals who must minister to its victims. Trauma
centers and morgues are packed with the combatants of drug turf wars, not to
mention innocent victims literally caught in the crossfire. Billions of tax
dollars are spent in a futile effort to end drug use by force of arms, while
addicts seeking to kick their habit are turned away from underfunded treatment
centers.
The medical community is also victimized by obscene drug policies that prohibit
the medicinal use of drugs arbitrarily classified as illicit. Smoking marijuana
alleviates pain in some victims of multiple sclerosis, effectively reduces the
nausea that accompanies chemotherapy, and is helpful in treating glaucoma.
Heroin has helped patients to deal with severe pain, and it is legally
prescribed for that purpose in Great Britain and Canada. Yet current U.S. drug
policies make it virtually impossible to provide those drugs to patients who
would benefit. (Public attitudes toward those users of drugs are more humane
than current policy. In the nationwide poll that I commissioned, 76 percent of
respondents would allow physicians to prescribe heroin as a painkiller for
terminally ill cancer patients, and 69 percent would allow glaucoma sufferers
to use marijuana.)
A fourth group that could help end the debilitating war on drugs are the
clergy, whose moral leadership in the effort might well be decisive. Black
ministers, in particular, could help put a stop to the travesty of current
policy, which has a tremendously debilitating impact on the African-American
community. The politicians and drug warriors justify their actions by claiming
that drug use is immoral, but their own policies obviously lack compassion.
While members of the clergy may be as patriotic as other Americans, their first
allegiance is to a Higher Power. They have a unique ability to directly
challenge immorality in government. They can attempt to keep the government
honest by insisting that its laws be proportional. Even thinking about handing
down prison terms for possession of small amounts of drugs for personal use is
a threat to human rights and a moral outrage.
Why should the clergy actively oppose the war on drugs? I can think of five
good reasons firmly anchored in the Judeo-Christian ethic. First, it does more
harm than the evil it aims to remove, this failing the test of St. Augustine's
just war theory. The major argument against legalization--repeated like a
mantra--is that there would be a concomitant increase in the use of legal drugs
and consequent addiction. But a cost-benefit analysis that I performed, which
appeared in the November 1990 ATLANTIC, revealed that the benefits of drug
peace would be large enough to offset the economic consequences of at least a
doubling of the number of addicts. Moreover, no one has documented that
legalization leads to increased use. Former drug czar William Bennett and
other insist that under legalization use would skyrocket. But the poll that I
commissioned showed that the fear of increased addiction is exaggerated to
serve the interests of the drug warriors. Less than 4 percent of respondents
said they would be very likely to try legal marijuana, and less than 1 percent
would be very likely to try legal cocaine. Making drugs cheaper may mean that
certain individuals will use more. What is equally true, but less understood,
is that there is no economic incentive for dealers to push dirt-cheap drugs.
Thus, legalization may lead to less drug use instead of more--particularly by
children and teenagers.
Second, the drug war ignores the proverb, "He that troubleth his own house
shall inherit the wind." Unlike the Vietnam War, the drug war is a war at
home. It is being waged against a people whose main fault--in addition to lack
of personal discipline--is their lack of bourgeois sensibility. The casualties
of this war can't be shuttled off and hidden in a Veterans Administration
hospital. And the innocent victims of this war aren't the peasants of My Lai
but infants and schoolchildren shot down in our ghettos. The drug war does
have on important parallel with Vietnam (besides the proverbial light at the
end of the tunnel): we're blithely destroying our inner cities in a vain
attempt to save them.
Third, the clergy should help society to heed the biblical injunction, "Render
therefore unto Caesar the things which are Caesar's; and unto God the things
that are God's." Drug use may be a very bad idea, but like other bad ideas it
can only be combated through persuasion. A caesar or czar who acts as a censor
usurps the role of moral arbiter. Shouldn't we defend the right to sin while
encouraging voluntary repentance rather than crush moral freedom under a
jackboot? Government's invasion of a sphere more properly reserved for clergy
and counselors risks upsetting the delicate balance between God's world and
Caesar's.
Fourth, drug warriors violate a central Christian ethic by hating the sinner
instead of the sin. "User accountability" is a not-so-subtle code phrase for a
reign of terror over ordinary people. The national drug czar wants to behead
dealers; the Los Angeles police chief proposes to line up and shoot users. The
politicians and drug warriors get lots of mileage from demonizing drug dealers.
BUt most dealers are simply pursuing the American Dream in the absence of more
legitimate opportunities. Like other Americans, they measure success by
material wealth. Our current drug laws present an extraordinary opportunity
for enrichment. Legalization would remove the lure of easy money that entices
people to become dealers and greatly reduce the power of the drug-financed
gangs that control domestic distribution. A decent society shouldn't tempt
desperate people with the windfall profits that are the result of keeping drugs
illegal.
Fifth, the drug war violates the Golden Rule of doing unto others as you would
have them do unto you. None of us is free of vice or temptation. Religion
rests on the idea that individuals can recognize their moral failings and
choose to seek guidance and absolution. Does any one of us really want to be
jailed for our moral shortcomings? If our teenaged child is arrested for drug
possession--a distinct possibility, since 54 percent of teenagers admit trying
illicit drugs--do we really want him or her sent to prison for falling victim
to the curiosity of youth? Whatever happened to the ideal of a compassionate
society? Bill Bennett clearly believes in a "muscular Christianity." It's
easy to find the muscle, but where is the Christianity?
There are three important audiences to whom the clergy should address their
efforts to halt the drug war.
First, the clergy must remind society at large that government is not the
greater power that will save us from ourselves. Salvation is an individual
enterprise, not a group one. Governments that have tried the collective
approach to salvation have been perpetrators of mankind's greatest evils.
Government as Big Brother usurps the role of clergy. In the history of
civilization religion has held more sway than other institutions over moral
thought and action. Yet today a strong, centralized government has become our
most authoritative institution. In an Age of Disbelief, our values are up for
grabs. But religious leaders won't prevail by quietly acquiescing as the
government usurps their moral authority.
Second, the clergy must remind those in government that the grotesque
disproportionality of sentences for infractions of the drug laws threatens to
undermine our government's claim to legitimacy. Members of the clergy are de
facto watchdogs over the morality of government. Even democratic governments
don't possess automatic moral legitimacy. It's incumbent upon the clergy to
point out our government's moral failings, such as suggesting summary execution
of violators of drug laws. Few, if any, politicians or journalists have the
stomach to make this case. Only religious and civic philosophers will raise the
salient questions about the gap between any notion of decency and present
government rhetoric.
Finally, the clergy must remind their flock of the crucial difference between
vice and crime. To collapse that distinction is to threaten all personal
freedoms. If vice is allowed to equal crime, then we come perilously close to
legislating religion. The question then becomes, whose values will be
enforced? George Bush's? Jesse Helms's? Saddam Husseins's?
Current drug policy is as far from solving the drug problem as it could
possibly be--despite its acceptance by an intolerant public. To develop a drug
policy that works, we'll have to answer many political and philosophical
questions correctly. Among them are: What is the proper role of government?
What does our commitment to constitutionalism mean? What should be the balance
between individualism and communitarianism? Do the rights of citizenship entail
responsibilities? No question will be more crucial than that of the role of
religion and free choice in personal morality.
The search for meaning and satisfaction in life isn't getting any easier as we
approach the 21st century. Still, don't we have enough empathy to resist
putting those who take refuge in the extract of plants in penal colonies?
Don't we have enough sense to reverse the course of social self-destruction
upon which we have embarked by ignoring the realities of economics and human
nature? And haven't we learned that government is too blunt a tool to use in
the delicate quest to maximize human freedom?
Certainly, drug use is a pardonable sin. It is our drug laws that are
unpardonable. Eventually, the harsh excesses of the war on drugs may cause us
to echo atom-bomb creator J. Robert Oppenheimer's lament about another possible
holocaust: "In some sort of crude sense which no vulgarity, no humor, no
overstatement can quite extinguish, [we] have known sin; and this is a
knowledge which [we] cannot lose." I think it far better for us to remember
"Blessed are the peacemakers."
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Richard J. Dennis is a commodities trader, president of NEW PERSPECTIVES
QUARTERLY, chairman of the advisory board of the Drug Policy Foundation, and a
member of the Board of Directors of the Cato Institute. This article was
originally delivered as a speech at a conference entitled "Reason, Compassion,
and the Drug War: Clergy Conference on Enlightened Drug Policies," sponsored by
the Religious Coalition for a Moral Drug Policy.
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