The writer Dan Baum has a fascinating piece in Harper’s entitled “Legalize It All.” This piece comes twenty years after Baum published a book in which he made the case that as a policy experiment, the war on drugs had been a catastrophic failure. The intervening two decades have done little to diminish that impression. Baum traces the origins of the modern, systematized war on drugs to the Nixon administration—or more precisely, Nixon’s presidential campaign. In the article, he cites an extraordinary quote from Nixon adviser (and convicted Watergate conspirator) John Ehrlichman, who told Baum:
You want to know what this is really about? The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.
Even if you stipulate that the motives of all drug warriors have probably not been so impure, Baum points out that the war has been a failure: after decades (and hundreds of billions of dollars) devoted to prohibition, interdiction, criminalization, and the rise of an unprecedented and racially invidious prison state, what do we have to show? The availability, use, and abuse of drugs have not diminished to any meaningful degree.
The availability, use, and abuse of drugs have not diminished to any meaningful degree.
Still, there have been signs in recent years that the public, and some parts of the political establishment, might be ready to concede that failure isn’t working. Nearly half the states have legalized medical marijuana, and Colorado, Washington, Oregon, Alaska, and Washington, D.C. have legalized recreational cannabis as well. It seems certain that in coming election cycles, other states will adopt similar measures. Similar changes are unfolding in other countries, driven, in some cases, by an acknowledgment by U.S. officials that it would be too baldly hypocritical for American leaders to urge other nations to adhere to prohibition when, at least in the case of pot, we are giving up on it ourselves. Baum notes a bracing moment of candor from Bill Brownfield, the top counter-drug official at the State Department, who said in 2014, “How could I, a representative of the United States of America, be intolerant of a government that permits any experimentation with legalization of marijuana if two of the fifty states of the United States of America have chosen to walk down that road?”
Portugal has gone further than any country in the world toward complete drug legalization—but not far enough, Baum maintains. Technically, Portugal merely decriminalized drug use, but the trafficking and sale of large quantities of drugs remains a serious crime there. With marijuana, which can be cultivated easily in Portugal, that sort of half measure might work, but with a drug like cocaine, which originates only in a handful of Andean countries, it gets more complicated. We have clearly reached an inflection point on this issue, and a moment of opportunity. “Few in public life appear eager to defend the status quo,” Baum points out. As popular opinion and political leaders appear ready, for the first time in decades, to contemplate a radical departure in our approach to narcotics, Baum advocates going beyond marijuana to legalize cocaine, heroin, and methamphetamine, as well. He considers the experience of Portugal, which decriminalized the use of all drugs in 2001 without catastrophic results: drug use did not skyrocket, Portugal was not mobbed with “drug tourists” from other less permissive parts of the world. Because prohibition is so expensive, Portugal was able to channel new resources into drug treatment, a much more cost-effective means of curbing drug abuse.
Baum’s solution is to pursue the kind of legalization that has been pioneered in Washington and Colorado, in which production and sale (and by extension, presumably importation) of narcotics are legalized, taxed, and regulated. This sort of scheme raises a host of tricky questions about the mechanics of implementation. (I explored some of these questions in an article for the New Yorker about the creation of a legal pot economy in Washington.) Baum observes that even as you legalize hard drugs, you would want to take steps to discourage consumption, as well as limiting advertising and promotion. Price is always tricky to calibrate because you want it to be high enough to discourage consumption (and generate tax revenue to pay for this new regulatory system) but not so high that it will drive consumers back to a persisting black market. In theory, at least, Baum suggests, the most effective way for the government to control prices would be a “government monopoly” on drugs.
But of course, this whole exercise is theoretical. Baum points out that even when it comes to the hardest drugs—heroin, cocaine, and methamphetamine—only a tiny percentage of users become addicted. But there is no rational accounting when it comes to fear, and the power of fear to drive public policy. Statistically, terrorism kills very few Americans relative to drunk driving or mass shootings, but we treat terrorism as a policy problem of the first order and alcoholism or guns as a lamentable fact of American life. The current spate of deaths related to heroin (and opioid) addiction is real, and sufficiently terrifying that while some political leaders have been willing to advocate a more humane approach to addiction, it seems highly unlikely that any public figures will be advocating the legalization of heroin in the near term.
This touches on one of the most fascinating questions raised in Baum’s piece: the counterfactual. Current rates of drug addiction relative to drug use may be low for prohibited drugs in America, but who is to say that under full legalization they would not go up? You can look at the experience of Portugal, of course, where there was not a spike in abuse, and to the degree that there might have been one, it was offset by new treatment programs. But Portugal has a smaller population than the state of Ohio, and there has always been something in the American character that is peculiarly susceptible to abusive consumption. Mark Kleiman, a drug policy scholar at New York University, raises questions about whether under full legalization, use and abuse of addictive drugs like heroin or meth might not skyrocket. After all, alcohol is legal, and also highly addictive, and as Baum points out, some seventeen million Americans are alcoholics.
Kleiman’s prediction of a big increase in post-legalization addiction rates seems intuitively correct. Common sense and decency dictate that any plan for legalizing drugs ought to make provisions for a rise in dependence. Millions of addicts already go untreated in the United States, though this may itself be, at least in part, a symptom of prohibition—the stigma and illegality of drug addiction probably do not help when it comes to getting addicts into treatment.
Millions of addicts already go untreated in the United States, though this may itself be, at least in part, a symptom of prohibition—the stigma and illegality of drug addiction probably do not help when it comes to getting addicts into treatment.
Given the calamitous consequences of the war on drugs, it is tempting to think in terms of panacea solutions, but as Kleiman has argued for years, legalizing alcohol may have been the right thing to do, but when we repealed prohibition back in 1933, there were a lot of ways in which we got it wrong: to take one example, many legalization advocates would want to curb dramatically the ability of legal purveyors of pot or cocaine to market their products in the aggressive manner that alcohol producers do. Baum makes clear that as we gradually reorient our posture toward narcotics in the coming years and decades, the devil will be in the details of implementation. And in that respect, while the kind of incremental, state-based change that we are likely to get will fall short of the sweeping transformation experienced by Portugal, it may allow for the kind of patient, technical deliberation that will allow us to get it right.
Cover Photo: Flickr, Plaubel Makina.