Last week I noted that our Constitution protects liberty indirectly, by placing restrictions on police procedures. I suggested that if we could only articulate the full ideal of liberty that the Constitution means to protect, and protect it directly, then we could dispense with many of these restrictions. That full ideal of liberty, I claimed, is just John Stuart Mill's principle of liberty, "that the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others."
If Mill's concept of liberty was to become the standard of constitutional liberty, the main effect would be to decriminalize sex and drugs. While criminalization of sex is not a big issue in terms of numbers of prosecutions, drug criminalization is a gigantic enterprise, so I will focus on that.
One might object that drug use does cause "harm to others", and this is certainly true. If no one bought illegal drugs there would be none of the illegal drug trade that spawns terroristic levels of violence in every American city. But little of this harm would exist if it drugs were not illegal. It is the criminalization of drugs that is responsible for the lucrative black market that is creating all the violence.
Mill's principle requires, as does constitutional law when constitutional protections are at stake, that a law must be necessary to stop harms from occuring. Drug criminalization cannot be called necessary for stopping drug violence when it is the cause of most drug violence.
Of course, drug dealers are not the only one's committing drug related crimes. Addicts commit crimes against persons and property to support their drug habits, and they impose a variety of dollar costs on society when they get caught up with the law, become wards of the state, contribute to the degradation of our cities, etcetera. These are "harms" in the strict Millian sense because they attack taxpayer's pocketbooks, which is a "security interest". But here again, criminalization does not meet the necessity test for stopping these harms.
The way to stop addicts from supporting their habits by commiting crimes against property is to throw them in jail for commiting crimes against property. As it is, the "war on drugs" has absorbed so much manpower that burglery is now classified by the police as "forget it crime". Again, the criminalization of drugs is grossly counterproductive to its stated goal.
As for the dollar costs of drug use, these costs cannot justify criminalization because they can be neutralized without criminalization, by taxing drugs to cover the full cost of their use. By this standard, government prices for drugs would probably be as high as current black market prices, and for some drugs much higher. For drugs that are very damaging, such as PCP -- a horse tranquilizer that causes significant brain damage with limited use -- internalizing social costs could realistically justify taxes of a thousand dollars a dose.
Should the government even sell such an addictive drug as "crack" cocaine? Sure. Just charge five times as much as for powdered cocaine, to account the extra social costs. No one would buy it. People who want crack would buy powdered cocaine and make their own. The steep social costs of crack use would then have to be factored in to the price for powdered cocaine, according to the estimated fraction of powdered cocaine that gets turned into crack. Too bad for snorters -- as if the social costs of snorting are not enough to pay for -- but that is what Mill's principle calls for, since purchases cannot be differentiated. The necessity test met.
Without drug cases to prosecute, as much as 50% of police and judicial resources would be freed up in most jurisdictions. Combine this with the relaxation of restrictions on crime control that direct protection of liberty would allow, and anyone who commits crimes to support an expensive drug habit will quickly end up in jail. Self destruction by cocaine addiction will be affordable only to the better off.
To cover the medical costs dumped on society by nicotine addiction, the price of cigarettes would have to quadruple, and alcohol prices would at least double to cover the carnage caused by drinking. Taxes would be by alcohol content so the cheap alcohol high would become a thing of the past and even many winos would be forced to sober up. Anyone who thinks drug legalization would mean some kind of drug-fest has another thing coming.
As for those who think it is the business of the state to go beyond what is necessary to stop harm to others, who want to force adults to live by an official view of what is best for them, I say: "America; love it or leave it."
Drug use and Minors
The rhetoric of anti-drug crusaders has rightly centered on reducing drug use by minors. Yet the criminalization of drug use for adults may be the greatest impediment to this goal. Black markets drug sales to adults readily diversify into black market sales to minors. If the host market could be eliminated by government competition and prosecution, the subsidiary youth market should wither on the vine. At the least, the appendage would become managable without the torso.
Older minors often have friends who are old enough to buy for them, and this will still be a problem. This crime should be punished diligently perhaps, but not harshly. A major part of the toll of drug use is careers held back by the stigma of criminal convictions. We should not lightly thrust this burden on those who are more likely than us to regard their friends as capable of making their own decisions. Steep penalties for making a profit on such transactions would keep any secondary market from developing, and that is the important thing.
One often hears the argument that legalizing drugs would conflict with the message many parents want to send that drug use is wrong. This fear is unfounded, so long as we are also planning on teaching our children the principles on which this nation is founded. None is more basic than the fundamental principle of pluralism: that the fact that one disapproves of something is not sufficient grounds for outlawing it.
It seems to me that the legality of drinking and smoking, together with anti-drinking and smoking advertising campaigns, does not send an ambiguous message, but a very clear one: that in this country adults are responsible for their own actions and becoming an adult means preparing for that responsibility. It is paternalism that sends the ambiguous message; that we embrace the rhetoric of individual responsibility but don't believe in it.
The fact is that to keep drugs out of the hands of adults we have been willing to accept the progressive spread of black market drug sales to children of younger and younger ages. I only wonder, in the midst of so much muddle, how many cowards are against legalization because they don't want to face the temptation of legal drug use themelves. Whatever the case, we are selling our children down the river in order to betray our inherited values of individual responsibility.
(Alexander Rawls is pursuing a Ph.D. in economics.)
Next article in the Reframing series: Junk the Fourth Amendment
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