ANALYSIS OF THE DRUG PROBLEM

PAUL BIRCH

48 Cliff Road, Cowes, IOW, PO31 8BN, England

paul@paulbirch.net and http://www.paulbirch.net

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— THE PROBLEM —

Chapter 1. Introduction

A major world problem

Who can doubt that the world faces a major problem with the illicit use of drugs? Many would call it a drug crisis, even, for it is no longer restricted to the margins of society, if indeed it ever was. It touches all our lives and few can claim to have been unaffected by it. We have learned of drug abuse among our friends and acquaintances, within our own families and in our own neighbourhoods. Most of us have personal knowledge of individuals who have died through drug abuse, and we all know people who have suffered because of it. Of the crime that comes in its wake we hear daily.

Three Approaches

There are basically three approaches to dealing with the drug problem: "try harder", "get tough", and "get soft". The first proposes continuing with more-or-less the present system of restricting the use of "controlled substances" by a confusing combination of education, medical provision, miscellaneous taxation, and occasional criminal sanctions for unauthorised distribution and use. Despite repeated failures, it is believed (or hoped) that improvements in the system can yet be made and the problem at least contained.

The second proposes "cracking down" on drugs, eliminating the problem "once and for all". The rhetoric (though not the practice) of the so-called "war on drugs" falls in this camp. Greater police powers and tougher sentencing, it is claimed, will put all the dealers behind bars and save our children from the menace of illicit drugs.

The third proposes legalising the sale of drugs across the board, in the belief that this will make the problem go away. It's not the drugs that's the menace, it's the laws against them. If we didn't have the laws, we wouldn't have a problem.

The sensitive reader will already have detected a degree of cynicism in my description of these three approaches. Their apologists (or so it seems to me) seldom attempt any honest evaluation of the situation, or of the merits of other options, or of the demerits of their own position. Instead they argue as dogmatists, emotionally tied to a single point of view: "liberal democracy good", so carry on regardless; "drugs bad", so declare a moral war; "freedom good", so legalise everything.

Many pointless discussions

Discussions of the drug problem almost invariably leave me infuriated with all sides. Indeed, I have never heard any such debate or discussion on the radio or television that even begins to address the full complexity of the issues. Most of what is written on the subject is little better. Many of the most knowledgeable and intelligent writers, whom one might have expected to have provided thoughtful arguments and careful analysis, turn out in retrospect to have been unduly wedded to one or other of the extreme dogmatic positions; others provide little more than derivative propaganda. Naturally, I contend that, unlike practically everyone else, I am fully capable of providing a calm, rational and unbiased analysis of the entire problem and all possible solutions. In this essay I attempt to do just that. The reader may judge the extent to which I succeed.

Working through to the answers

Since my conclusions will be controversial and upset almost everyone, I won't tell you yet what they are. You'll see how they come about as we work through the analysis. You might be tempted to skip ahead to the last chapters, to find out what I'm going to say. I advise against it. If the drug problem had an easy answer, it would not have shown itself so obdurate to date. Once you have followed my lead through the complex byways of this topic, and reached the centre of the maze, I hope you will agree that my answers have a certain elegance; but until that point is reached they are likely to prove difficult to understand and hard to accept.

Nomenclature

You may not like my usage of words like drug, user, addict, habit, pusher and dealer; please bear with me; there is no entirely satisfactory nomenclature available. For the most part, I use the word drug to refer to a substance, compound or preparation, often but not necessarily controlled by law, used for recreational but not medicinal or nutritional purposes. By recreational purposes I mean that people take it to be sociable, or to feel good, or to stop feeling bad; and that there was in general no medical reason for them to start taking it. From time to time I shall also refer to the legitimate medical use of drugs and the crossover problem of iatrogenic addiction. The word user refers to anyone who takes a drug — not necessarily an addict. An addict is someone who is addicted to a drug. The meaning of the word addiction is in dispute; it is often taken to imply physical or psychological dependence on the addicting drug, perhaps associated with physical symptoms or cravings upon withdrawal. Here I employ an economic meaning, defined by an empirically measurable low user elasticity of demand; we'll look at this in some detail later on, but, roughly speaking, you maintain a habit at least for a short while even if the price goes up a bit, whereas you maintain an addiction for a long while even if the price goes up a lot. A dealer is one who deals or traffics, not necessarily dishonestly; a pusher is one who deliberately encourages addiction. Unfortunately, it will not always be possible for me to use these and other terms in a totally unambiguous and consistent way. However, I will attempt to make my meaning sufficiently clear in context.

One problem or many?

In talking of the drug problem I may seem to be begging the question. Is there a drug problem? Or is it only a drug-law problem, as many of the proponents of legalisation would contend? Slightly less pedantically, aren't we inviting oversimplification by conflating many different drug problems into one? Not all drugs are alike. Not all the problems are alike. Alcohol abuse should not be confounded with heroin addiction. Marijuana is not on a par with cocaine. Yet if I were to attempt to describe the history, geography, pharmacology, psychology, sociology and economics of the use and misuse of each and every habit-forming or psychoactive compound I should overflow an encyclopaedia — and still miss my thesis. For it is what these have in common that describes what we all intuitively recognise as the drug problem; we are looking for essential principles and generic answers, not restricted instances or redundant detail.

Unreliable literature

You will find no references or footnotes in this essay; this is deliberate, since wherever possible I wish readers to be able to confirm my conclusions by direct reasoning from general knowledge. Publications on the drug problem need to be treated with considerable scepticism; many of them are so biased as to be worthless, or worse, and the general reader has no way of knowing which to trust. Reinforcing my statements by reference to other authorities would thus be of little value. Besides, I'm lazy. Readers who wish to delve more deeply will be best advised to search the literature for themselves.

Chapter 2. The Way We Were

Once upon a time

Once upon a time there were no drugs and no drug problems and all God's children were happy. Or . . . once upon a time there were no drug laws and no drug problems and all Nature's children were happy. Or . . . once upon a time everybody obeyed the law and there was no drug problem and every citizen was happy. Choose one according to ideology.

Or consider instead just how things really were. There were always drugs, but they were never so available, so affordable, so varied and so potent as they are now. There have always been drug problems, but they were seldom if ever so menacing before. And there have been diverse laws and exhortations against the misuse of drugs since the beginning of civilisation, but there have never been so many laws and regulations as there are today. There was never a golden age of pure substance innocence; yet we did at least enjoy a sheltered childhood, to which we can never return. The genie, to switch metaphors, is out of the bottle.

Alcohol becomes cheaper

In Britain, in earlier times, the only readily available intoxicant was alcohol; and ordinary people could afford only weak ale or small beer. It was hard work even getting drunk on this; alcoholism, as we understand it today, was unknown. Improvements in the techniques of fermentation brought stronger drinks and more drunks, but it was the arrival of distilled spirits that turned drunkenness into a social problem, not merely a personal one. At first, prices were high enough to deter most would-be drinkers, but as wages rose and cheaper spirits became available (most notoriously gin) the problem escalated. True alcoholism, with its attendant poverty, crime, and moral depravity, made its appearance.

Alcohol taxed

Fortunately (and fortuitously) a solution was found — excise duty. This tax, levied principally, one assumes, for the sake of the revenue, held the price of strong drink at a level high enough to keep the alcohol problem within bounds (we shall consider what the removal of this tax might mean for alcohol consumption and for society in general later). Even today, alcoholism tends to be a bigger problem in countries where the tax on alcohol is low relative to wages, that is, where alcohol is more affordable.

It was not only price that acted to deter excessive drinking; moral, religious and social sanctions also applied. In medieval times almost everyone went to church, but the Church's deprecation was muted by the use of Latin, which the common people didn't understand. The Renaissance brought the vulgar tongue into play: sermons were long, yet considered high entertainment; congregations were huge. Think of the dozens of two-thousand seater churches Sir Christopher Wren built in the City of London alone. At this time, drunkenness was openly condemned from the pulpit, and everyone heard the message. But it didn't stop people drinking. Later, during the Industrial Revolution, church attendance began to drop off, especially among the lower classes. This was the time of the moral dominance of the temperance movement. Yet alcoholism among the poor remained a major scourge. Until very recently women were powerfully discouraged from drinking by the disdain in which a drunken woman was held, whether as an upper class lush or a lower class sloven. Yet among the gin-addicts of the Victorian poor the wives were often the worst.

New drugs appear on the scene

Exploration and trade brought new plants, new products, new drugs to Britain. There was tobacco. Then there was hemp. Then opium. Then coca. There was also tea and coffee. Each was initially expensive, available only to the wealthy in small amounts of poor quality and low potency. The dangers were seldom understood; tea, for example, was initially believed more hazardous than opium. Consumption of such intoxicants was generally recognised as a vice, but so long as it was confined to a small group — like opium smoking to chinamen — its seriousness was not perceived. Even when a practice became widespread, as with the use of tobacco, the dangers were not always obvious.

With time, these products became more affordable and the quality improved. Superior strains of plant, containing more of the active principle, were developed (tea that didn't come up to scratch was dumped in the Thames in an ultimately successful attempt to force foreign growers to improve the quality of their merchandise, though there seems to have been an unanticipated side-effect in the shape of the American Revolution). More potent derivatives appeared; bhang and hemp-seed were followed by hashish and quat, then marijuana and cannabis resin; raw opium was supplemented first by morphine, then heroin; coca leaves were replaced by cocaine, then crack. More convenient preparations also appeared; tincture of opium, which could be drunk "for medicinal purposes" without any of the paraphernalia of the opium den; cigarettes and cigars, which were much less of a hassle than pipe tobacco and made much less mess than snuff or chewing tobacco. Inevitably, consumption rose with each "improvement", and concern about the drug problem rose with it; the temperance movement and societies for the suppression of vice also flourished.

Similar tales could be told of most other countries. The main restraint on consumption was the fact that the most dangerous intoxicants were too costly for ordinary people to buy, a restraint sometimes strengthened by taxation (for example, bhang, a cannabis-based beverage, was heavily taxed in India, even before the days of the British Raj). Outright prohibition was rare, but not unknown (Islamic countries in particular often banned alcohol — a fact that paradoxically may have encouraged the use of hashish and opium as alternatives). Social sanctions against excess no doubt played a part; but although it is hard to quantify their effectiveness, they do not appear to have been especially successful. However, we should note that taxation has not always been set high enough to discourage consumption significantly; duty on tobacco in particular has usually been treated more as a means of raising revenue than as a means of limiting smoking.

Drug addiction becomes a problem

It was during the nineteenth century, a period of rapidly increasing prosperity, that drug addiction started to become a major social problem both in this country and in America. The proliferation of patent medicines and opiate nostrums like laudanum and paregoric, and an amazingly complacent and liberal approach to the prescribing of morphine by the new medical profession, brought addiction to the masses and the opium drunkard to the attention of both newspaper columnists and social reformers. The pendulum swung back. New regulations reduced the availability of the opiates, and of cocaine, and induced a greater degree of responsibility among doctors and pharmacists. This was instrumental in curing the immediate epidemic and in keeping the lid on the problem until after the Second World War.

Finally, in the twentieth century, as rising prosperity introduced ever more potent preparations to a wider market, artificial drugs like PCP and LSD began to be manufactured and distributed among whole new categories of users. The so-called designer drugs are their inevitable successors; although many are no more than fads, others may prove highly dangerous. There is no obvious limit to the availability and potency of such substances; they might be engineered to be (almost) harmlessly pleasurable or else instantly and irreversibly addictive.

Any solution must cope with change

Any alleged solution to the drug problem that fails to take into account this historical process is likely to be overtaken by events, as the future brings forth an ever-expanding range of inexpensive designer drugs and novel techniques for the production of traditional ones — such as opiates from genetically engineered yeast or hallucinogenic milk from modified cows. Other forms of addiction may also arise — such as addiction to the direct electrical stimulation of the pleasure centres of the brain (indeed it is a little hard to see why this commonplace of science-fiction has not already become popular). Not only is it impossible to return to the "simple" days of the eighteenth or nineteenth centuries, as some of the more naive proponents of legalisation suggest, it will doubtless prove impossible even to keep things the way they are.

Chapter 3. The Way We Are

A deteriorating situation

Readers are no doubt familiar enough with the situation today. Drug abuse has never been a more serious problem. The raft of laws meant to deal with it is widely flouted. Vast profits are made by traffickers in illicit drugs, profits that come ultimately from the purses of honest citizens. Drug addiction has multiplied, and crime has multiplied with it. Epidemics of heroin addiction, cocaine addiction, amphetamine abuse, barbiturate abuse, even glue-sniffing come and go, but the trend is always upward. Drug abuse has become endemic; and the problem is getting worse.

How serious is the problem? It is hard to be sure. Still, the United Kingdom registered around 10,000 new addicts a year in the nineteen nineties, up from under a thousand in the early seventies and around two and a half thousand in the early eighties. The total number of registered addicts is thus on the order of 100,000 (perhaps 0.2% of the population). This does not include those who are addicted, but who fail to register for treatment or maintenance. Nor does it include the millions of young people who use (or who are alleged to use) drugs like Ecstasy or marijuana. Nor does it include the abuse of prescription drugs such as sedatives and amphetamines. Nor does it include alcohol and tobacco. Yet the UK is one of the places least affected by the world-wide growth of the illicit drug trade.

Perhaps the most alarming feature of the problem is not its current magnitude but the fact that the situation is deteriorating. We should not however be misled by temporary reductions in the crime figures, or the numbers of registered addicts, into believing that we are finally getting the better of this mischief; by the very nature of the phenomenon we must expect year-to-year fluctuations to be large. The historical trend is apparent.

Attempts to control drug abuse

Most of the time, governments wish to restrict, control or eradicate the abuse of drugs within their own territories. How do they attempt to do this? The answer varies from country to country; some are strict, some are less strict; some are sympathetic to users, some less so; some are more consistent, some less. In the Third World especially, corruption is rife. In Europe, actual corruption is comparatively rare; but inadequate enforcement of existing law is common. In the Netherlands, for instance, laxness to the point of an almost complete failure to prosecute has become official policy — what is misleadingly known as decriminalisation. By contrast, the face of the Orient is stern; on the Pacific rim, the penalty prescribed for drug trafficking is often death, though performance seldom matches the promise. In America, law enforcement practice ranges unpredictably from draconian cruelty, with the abandonment of the rule of law and the provisions of the constitution, to downright ineffectiveness and inaction. Perhaps the best example of a country with a moderate, civilised and occasionally consistent policy on drug control is the United Kingdom — and perhaps that is why the problem is less pressing here than elsewhere.

Specifically then, how have successive British governments attempted to deal with the drug problem? Partly by taxation or excise duty (in the case of alcohol and tobacco); partly by regulation (in the case of prescription drugs); partly by criminalisation (in the case of illicit drugs including marijuana); partly by medical treatment (especially for opiate and cocaine addiction — and of course for alcoholism); and partly by education and propaganda (both in the schools and in the media).

It would be unfair to accuse government of dogmatic adherence to a single strategy, since official policy has been characterised by a pragmatic willingness to try a little of everything; but at the same time it is arguable that this plethora of approaches has itself contributed to the scale of the problem and the difficulty of solution. Perhaps it has not been a total failure, but it has certainly not proved a complete success.

Anti-drug legislation

In the legislative field, a wide range of statutes and regulations has been employed, from the Pharmacy Act of 1868 to the Dangerous Drugs Act of 1920 and the Drug Trafficking Offences Act of 1986. These are similar but not identical to legislation elsewhere in the Commonwealth, such as the Misuse of Drugs Act (Singapore), or in the United States, such as the Harrison Act of 1914 and the Controlled Substances Act of 1970. Just to make things interesting, these different laws sometimes go by the same name; for example, Britain also has a Misuse of Drugs Act.

It would not be helpful to examine these laws in detail here. For one thing, nobody considers them wholly satisfactory; for another it is not their wording but the implications of the underlying policies that is at issue; furthermore, laws, regulations and policies are changing all the time, and much of what I describe is sure to be out of date by the time you read it. However, one point should be noted: anti-drug laws have not arisen out of common or equity law; they are universally of the nature of arbitrary or statute law.

Now statute law is not necessarily bad, nor is it always in conflict with the common law, which it may sometimes attempt to codify; nor is judge-made case law necessarily the same as common law, legalists' definitions notwithstanding, for judges are all too often arbitrary or politically motivated, whereas the true common law is the law of natural justice. Nevertheless, it is largely because drug laws are statutes or regulations imposed by governments that they tend to be unreliable in their adherence to the principles of justice. The relevance of this point will become apparent later on.

Under these laws, various forms of criminal sanction have been employed against dealers, traffickers, smugglers, pushers and users, as well as those who launder the proceeds or who are otherwise associated with the drug trade (or who are believed to be so associated): these include fines, the garnishing of bank accounts and the confiscation of assets; but the principal punishment is normally imprisonment, albeit weakened by the likelihood of remission or suspended sentences. However, capture and conviction rates have generally been considered disappointingly low.

Action at source

Attempts have also been made to contain the evil (as it has been characterised) at source, in the producing countries of Latin America and the Far East. Methods employed have included diplomatic and economic pressure, assistance with eradication programmes, secondment of police consultants or military advisers, and, with or without the permission of the governments directly concerned, the occasional direct military intervention. However, such active or pre-emptive involvement more accurately depicts the stance of the United States than of the United Kingdom.

It has not helped matters that governments have also at times become involved in the drug trade; it has proved too convenient an economic and political weapon to be relinquished. The funding for terrorists, freedom fighters, rebels and resistance movements alike has often been provided through the sale of illicit drugs. Intelligence assets have been paid off in opium. Drug trafficking Mafiosi have been used for covert operations. Enemy personnel have been compromised by drug addiction; conspiracies have abounded. Such practices go back at least to the Second World War.

Inadequacy of existing policies

It is apparent that on the one hand the availability of legally-prescribed drugs on the NHS has been insufficient to undercut the black market, while on the other hand the likelihood and severity of punishment has been insufficient to deter illegal distribution and use. Customs inspections have failed to stem the flow of illicit drugs into the country, and the police have been unable to prevent them from subsequently reaching the market. Similarly, taxes have been insufficient to restrict smoking; and regulation has been insufficient to prevent widespread abuse of prescription drugs. Medical treatment has produced a dearth of cures and a ubiquity of backsliding. Education, once the great white hope of liberals, has proved ineffective, not least because of a lack of belief in the integrity of the educators.

As we proceed with the analysis, we shall hope to understand more of the complexities of the drug problem and the way we are today. Why is the problem so intractable? Why have none of these policies worked? Why are the prospects for the future so bleak? Why does it seem that we have no answers? What's wrong with the ideas of the radicals or the reactionaries? What's the matter with legalisation, or the War on Drugs? Why are the solutions that are proposed inadequate? And why is it so difficult to create a just and effective legislative framework for the control of recreational drugs?

Chapter 4. Alcohol And Tobacco Are Drugs Too

A mythical problem?

We often hear that the drug problem is a myth, because alcohol and tobacco cause far more deaths than heroin, cocaine, LSD and all the rest combined. Well, so they do, but alcohol and tobacco are drugs too. They are addictive and dangerous and lead to crime; they impose immense burdens upon society and the economy. They just happen to be taxed and legal. Indeed (libertarians note!) they are such a major problem precisely because they are legal.

Alcohol

First, consider alcohol: the vice of drunkenness has been known since ancient times, indeed it has often been implicated, perhaps exaggeratedly, in the collapse of civilisations; it has certainly played a part in the downfall of many a human being and the destruction of many human lives. As noted above, the nature of alcohol abuse has changed over time as the potency of available liquors has increased; nowadays, persistent drunkenness easily becomes alcoholism, which must surely be treated as a classic example of drug addiction, involving as it does the phenomena of tolerance, withdrawal, physical and psychological dependence, behavioural change and the possibility of death from overdosing. It is hard to find any reason, beyond that of social acceptability, not to consider alcohol an addictive drug.

However, it is clear that in normal use alcohol is only weakly addicting; moderate, responsible drinkers are in the majority, alcoholics very much in the minority. Later we shall see how alcohol's high user elasticity of demand defines it as a "soft" drug; paradoxically, this may make it exceptionally dangerous in a free market, more so even than "hard" drugs like heroin and cocaine. As we all know, drinking to excess is dangerous not only to the drinker, but also to other people, especially those imperilled by drunk driving; hooliganism and vagrancy are other all-too-frequent results.

Tea and coffee

Another weakly addicting substance, often labelled the world's most popular drug, is the caffeine in tea or coffee. It is almost impossible to become addicted to tea, and not much easier to become addicted to coffee. Indeed, although some people may overdo the coffee drinking and appear to become excessively irritable as a result, it is doubtful whether any of them are truly addicted; if the price of coffee went up, they'd cut down. It seems more likely that they are irritable because of the pressure they're under that leads them to drink a lot of coffee than because of the coffee itself. I shall not be considering coffee as an addictive drug. This is not because caffeine isn't addictive. It is — but only when taken in a concentrated form such as a pill. There simply isn't enough caffeine in coffee or other beverages to lead to addiction. Or to put it another way — it's just not practicable to drink enough coffee to become addicted.

Tobacco

Tobacco is clearly a drug on any reasonable definition (though its active principle nicotine may not be the only addictive component). Its users display tolerance, withdrawal, psychological dependence, and (weak) behavioural shifts. They also have a very low user elasticity of demand; even major price hikes lead them to economise on tobacco only very slightly. In short, tobacco users display all the signs of drug addiction.

One way in which tobacco differs from most psychoactive drugs, including alcohol, and the probable reason for its social acceptability, is the absence of any major behavioural effect on the user, so long as he is not deprived of his daily dose. The regular smoker can get on with his normal life, drive a car in safety, concentrate on his work, perform a thousand and one tasks, all the while acting in a socially unexceptional fashion. The heroin addict, LSD freak or habitual drunkard is not so fortunate.

Nevertheless, tobacco is a hard drug and a deadly one. Indeed it is one of the hardest or most addictive drugs we know, certainly the hardest in common use. It is an uncomfortable fact that practically all smokers, getting on for half the adult population, are addicted. They do not often admit their addiction, pretending instead that they smoke because they like it, although the euphoria or "buzz" the first few cigarettes gave them is long gone. This pretence is the behaviour pattern known as "denial", especially familiar to those whose work is with alcoholics.

No one likes to acknowledge, even to himself, that he is such a feeble, weak and worthless creature that a mere non-living chemical can destroy his freedom of will and turn him into a hapless slave. Yet acknowledge it we must. I'm not suggesting that any of us is truly worthless — of course we're not — for even the hardened addict is much more than a slave and retains a great deal of his free will; but the human frame is weak, and there but for the grace of God go you or I.

Chapter 5. All Drugs Are Dangerous

Marijuana isn't safe

We often hear that marijuana should be legalised because it's harmless. Nobody ever died from smoking pot, we're told, and anyway it's obviously much safer than tobacco. There's a lot of truth in that. There's also a lot of falsehood.

It is true that, compared to tobacco, less of the hemp weed needs to be smoked to maintain a habit, so some of the health hazards may also be correspondingly less; but to be safer than something that will kill around 20% of the population is hardly a recommendation.

It is also true that no one drops dead from smoking a reefer — overdosing on marijuana is all but impossible — but then no one drops dead from smoking a cigarette either. That doesn't make tobacco safe. And it doesn't make marijuana safe.

Long term risks

Even with drugs like heroin, where overdosing is common, the death rate is likely to be dominated by the long-term damage resulting from repeated use — just as with tobacco. The difficulty here is that it is very hard reliably to associate long-term medical or psychological problems with the antecedent drug use. It took centuries of widespread use and the collection of immense amounts of data before the dangers of tobacco smoking were recognised and quantified. Comparable data for illegal drugs does not even begin to exist; and there is no mechanism by which it could be gathered; in a regime in which the use of such drugs is banned, large-scale adequately controlled experiments or surveys are impracticable.

It is certainly true that many of the presently observed risks of drug-taking are simply the result of the activity's illegality. There can be no guarantee of purity, strength, consistency, quality or safety of products bought on the black market. Potentially dangerous impurities and uncertain doses are the rule, not the exception. Add to that the appalling circumstances in which addicts "shoot up" and their understandable unwillingness to seek help for any resulting medical problems and we can see the force of the argument for legalisation. But we ought also to realise that there are similar if lesser risks intrinsic to the activity itself; even if heroin is legalised there will still be overdose deaths, as with barbiturates today.

We simply do not know how dangerous in the long run recreational drugs (other than alcohol and tobacco) may be; short of full legalisation and a highly addicted population we are unlikely to find out for sure. That a tiny proportion of young people suffers a fatal reaction to their first experiment with Ecstasy is unfortunate yet (except to those immediately involved) insignificant; but the possibility that millions may suffer from irreversible brain damage is alarming. Even if on this occasion the claim proves unfounded, what about the next fashionable drug, or the one after that? Sooner or later we are bound to draw the short straw.

By the very nature of the problem, the dangers are frightening and unknown — and may indeed prove catastrophic. It is true that the introduction of new drugs in medicine faces much the same difficulties; but here there are clear benefits to offset the risks, and usage can be more easily controlled and monitored.

Drugs have side effects

Objection: If we can't demonstrate the existence of long-term health hazards, why assume there are any? Aren't we behaving like the health nuts who keep telling us to stop eating bread, butter, sugar, meat, eggs, cheese, sweets, chocolates, potatoes and anything else more appetising than raw carrots, nuts and lettuce, or drinking coffee, tea, milk, or toothrotting soft drinks? Not really. There's a difference. The human body needs food; it doesn't need drugs (not so long as it's healthy, anyhow). It's designed to take sustenance; it's not designed to take intoxicants. Indeed, the very word intoxicant means poison.

For a century or more doctors, medical researchers and pharmaceutical companies have dedicated millions of man-years and billions of pounds to the search for medicines that are beneficial, effective, yet free from harmful side effects. They have failed. In all that time, not one completely harmless drug has been found. Even the common aspirin will eventually ruin your stomach lining and kill you, if you take it in quantity every day.

I don't wish to imply that medicine isn't useful — of course it is — but as a necessary evil rather than a positive good. The advantages of medicinal drugs often outweigh the disadvantages; yet we must accept that there are always drawbacks, which become worrying whenever a course of treatment is unduly prolonged. Some people (such as diabetics) may actually need a particular medicine in order to survive: this is their misfortune; it in no way alters the general fact that drugs are dangerous.

There's a reason why active drugs always have side effects. It's this: the human metabolism is a complex of intricately-tangled interactions; every molecular species naturally present does umpteen different jobs; any artificially supplied drug will similarly find itself altering the natural metabolism at umpteen different points. Side effects are thus inevitable — one can only hope they won't be too deleterious.

So wouldn't it be an absolutely astonishing coincidence — nay, a miracle! — if of all the pharmacologically active substances ever investigated, only the illicit recreational drugs were actually free from harmful long-term side effects?

Drugs about as harmful as tobacco

Still, even if all drugs are harmful, some may be more harmful than others. We have already remarked that marijuana may be less harmful than tobacco. What of other drugs, like amphetamines or hallucinogens — are they more harmful or less? Who knows? The data just aren't good enough. Might we steer consumption away from the more harmful drugs in favour of the less harmful? Doubtful. Even if we knew which was which, some of the more harmful drugs would probably turn out to be more attractive too — or simply more addictive. Then can we get any handle at all on how harmful addictive drugs in general are likely to be, after legalisation? Surprisingly, despite our lack of detailed knowledge, we can. Typically, addictive drugs are likely to be just about as harmful as tobacco (though some might still give us a nasty surprise and prove considerably more dangerous).

Now why should drugs come out roughly as harmful as tobacco? For this reason: in a regime of full legalisation the delivery method of choice will probably be the doped cigarette. By comparison with most other methods it is cheap, convenient, efficient, reliable, profitable, popular, safe and socially acceptable; by safe I mean that the possibilities of overdosing and infection are effectively ruled out; by socially acceptable I mean that whereas the smoker is sometimes disapproved of, he is seldom if ever despised the way other addicts are; indeed, in many circles, smoking is considered cool. Although health hazards could no doubt be reduced considerably if drug intake were instead effected through the use of inhalers, like those provided to asthmatics, it is hard to see consumers accepting their rather wimpish image. Furthermore, the doped cigarette could make use of the industrial plant, distribution networks and commercial enterprises already in place.

Doped cigarettes

I can foresee tobacconists and corner newsagents stocking a range of opium, cannabis and cocaine enhanced brands at a ten or twenty percent premium above ordinary tobacco. Indeed, if drugs are ever legalised, it is hard not to see this as the inevitable outcome. Although not everyone would buy his drugs this way (some might still snort coke just as a few still sniff snuff), doped cigarettes seem likely to account for by far the greatest volume of sales. Moreover, for the convenience of manufacturers and consumers, we might expect potencies to be adjusted to yield typically the same twenty-a-day habit across the range. Whichever drug he chooses, the consumer will end up smoking just about the same number of cigarettes a day. Thus the overall long-term health hazards are likely to be much the same as for ordinary tobacco smokers at present.

To sum up this chapter: the extreme claims of certain activists, that recreational drugs like marijuana, or even heroin and cocaine, are not particularly dangerous, or would not be dangerous if only they were legally available, must be rejected; moreover, we must accept that the presence or absence of acute health hazards is not a reliable guide to the long-term risks, which we can normally expect to be considerably greater, typically leading, as with tobacco, to the premature deaths of on the order of fifty per cent of chronic users.

Chapter 6. Drugs Can Harm Other People

Is drug taking victimless?

We are often told that drug-taking is a victimless crime and therefore ought not to be a crime at all. This has a certain plausibility. If we ignore the fact that the drug user makes a victim of himself, or at any rate argue that this is irrelevant in law if not in morality, we may be led into too hasty an acceptance of the argument for legalisation. For drug-taking can harm other people. It is not always victimless.

Harm to others

Rowdy drunks in the street, if not an outright menace to society, are at least a decided nuisance. Drunks behind the wheel of a car are unquestionably a menace. Smokers polluting the air that others have to breath are a nuisance at best, a health hazard at worst (though here I must make it clear that the recent passive-smoking scare goes way over the top — the risks cannot be anything like the 20,000 UK deaths a year now being bandied around).

Almost any psychoactive drug is likely to interfere with one's ability to carry out everyday tasks: to drive a car in safety, to operate industrial machinery, or to perform brain surgery — to select only a few examples out of many. In the modern world, in which all of us have to rely upon the capability of other people to do their jobs and fulfil their obligations in an effective and responsible manner, the dangers of untoward drug use are considerable. In the modern world, we need our wits about us. There are few positions in which one would be willing to trust a drunkard; much the same must be true for any other mind-altering drug.

We should not take the debunking of the "dope fiend" myths that used to be so widely disseminated as an excuse for falling into the opposite error. These drugs do indeed cause behavioural shifts, which can often have alarming consequences. True, only a tiny percentage of cocaine users will turn into raving lunatics — but those that do may be quite a bother. Not all psychedelics will lose touch with reality — but some of them assuredly will. Perhaps not every user will be a public danger or a public nuisance, just as not every drunk litters the sidewalk or sings in the street, but it can hardly be doubted that, one way or another, drug addicts will have difficulty filling the role of the normal citizen.

Public health problems also arise, especially where the sale of drugs is banned; the spread of AIDS and other diseases through shared needles is an obvious example. Less obvious is the tendency of drug addicts to be more prone to infection and thus more apt to pass infections on to other people with whom they come in contact; a population higher in drug users will thus have a higher disease endemicity and a lower resistance to epidemics. People who don't take drugs themselves will suffer and even die as a result.

Then there are the crimes that are committed by drug users under the influence of drugs — crimes many of which would otherwise never have been committed. Again, we need not accept the caricature of drug users as malevolent and maniacal fiends to realise that the problem exists. Few people doubt that drinking can encourage crime; what is true of alcohol is also true, in varying degrees, of other recreational and even medicinal drugs.

Drug users must pay

Drug users, it is clear, place innocent people at risk through their actions. It does not follow from this that drug use ought to be banned. It does however follow, I believe, that drug users, or the drug trade, must bear the full costs of such additional imposed risks; for it is blatantly unjust that anyone else should have to bear them instead.

Nevertheless, we must not forget that if we criminalise drug use, this also harms other people — most especially the victims of the crimes that addicts commit to fund their costly habits. It seems clear that the harm done to other people per addict is greater by far if drugs are illegal (and expensive), than if they are legal (and cheap), as is the damage done to the individual addict himself. Even so, criminalisation may be appropriate if the number of addicts is thereby reduced sufficiently that the total harm to innocents is also reduced.

Against that we may set the argument that where drugs are legal it may be practicable to make users pay for any harm they inflict on others. A harmfulness tax, for example, might be levied on the sale of drugs, like today's excise duty on alcohol and tobacco; this would be calculated on the basis of the full social harm consequent upon the use of that drug.

Furthermore, where the use of drugs brings a heightened risk of liability, as in driving a car or practising as a hairdresser, the drug user might expect to have to pay a correspondingly higher insurance premium; failure to take out adequate third-party insurance would then be an offence, for which the miscreant could expect to be punished. And where any tort or crime is committed under the influence of drugs, civil or criminal proceedings can be expected to follow.

Thus, in a regime of legal drug use, innocent people can be protected and drug users obliged to carry full responsibility for their actions. But where drugs are illegal it is likely that society as a whole will have to carry most of the burden.

Chapter 7. Passive Smoking Is An Assault

Smokers pollute the air

The anti-smoking lobby has recently been making a lot of mileage out of the issue of passive smoking, and we do not have to buy the whole package to accept that there is a genuine problem here. At the very least, it is apparent that smokers polluting the air that others have to breath are committing a public nuisance. And even if tobacco smoke were not dangerous, deliberately blowing smoke into a non-smoker's face would still be violating his rights and committing an assault, albeit not an especially serious one. Smoking at someone is an unpleasantness broadly equivalent to spitting at them. Such assaults and nuisances should certainly be prosecuted.

The hazard from passive smoking not great

However, it is all too easy to exaggerate the problem. Passive smoking is hardly the scourge it is now portrayed as being. If tobacco is killing off smokers at a rate of 100,000 a year in the UK, by far the greater part of that hazard must be the result of active smoking — that is, sucking the poison directly from the cigarette into the lungs. Although the unfiltered smoke from the cigarette end is more dangerous, most of it disperses harmlessly in the air, only a small fraction ever being rebreathed. If smokers do most of their smoking indoors, we might plausibly be able to attribute up to 20,000 deaths a year to passive smoking; but these are smokers' deaths, already included in the 100,000.

So how many non-smokers will die of passive smoking? The figure has to be a lot smaller. First, even where non-smokers are working in the same room, the air will be thicker in the immediate vicinity of the smokers; typically the non-smokers will take up only about half as much ambient smoke as the smokers themselves. Second, birds of a feather flock together. In other words, smokers tend to work with other smokers, and smokers tend to marry other smokers. The tendency of non-smokers to avoid smokers is even greater. This separation is enhanced by the correlation between smoking and socio-economic class (working class people are more likely to smoke than middle class people), and the corresponding separation of work and home environments. Third, smokers and non-smokers alike often live or work alone, or spend much of their time apart from other people (for example, in the cab of a lorry, or in a private office); thus much smoking takes place in circumstances in which passive smoking is effectively ruled out. Fourth, non-smokers often will not permit smoking in their presence; even where they have no formal authority, they may be able to apply sufficient social pressure to shame the smokers into compliance. Thus, traditionally, before feminists turned women on to smoking, housewives commonly refused to allow their husbands to smoke in the house, driving them out into the backyard instead.

Putting all of this together, it is hard to see how passive smoking could kill more than say 2000 non-smokers a year. Even that is probably pushing it. A figure of around 1000 a year is perhaps more defensible. Of these, few can be considered a violation of the victim's rights. Nobody forces you to marry a smoker. Nobody forces you to work with smokers (or not as a general rule). Probably the only serious consequence of passive smoking is the effect on children brought up in smoking households. There we do have a problem; possibly six hundred such children a year may die as a result (not necessarily or even usually in childhood). Whether this justifies any form of legal sanction against smokers with children is debatable; but it is hard to see how it could ever justify any blanket ban on the sale of tobacco, on tobacco advertising and sponsorship, or on smoking in public places (though such a ban might conceivably be justified on other grounds).

Legislation unnecessary

There is little need for special legislation on passive smoking. On private property, smoking can legitimately be controlled by the owner, who has the power either to permit it or forbid it. For example — and leaving aside the question of children — you are entitled to smoke tobacco in your own home, or allow your visitors to smoke; if anyone doesn't like it, they needn't come in. Equally, you are entitled to prevent people smoking there; again, if they don't like it, they can leave.

In the workplace, an employer may designate certain areas for smoking and others as non-smoking. Or he may bar all smoking on the premises or on company business. So long as he and his employees abide by the terms of their contracts, there is no problem. If you don't like the conditions of employment, you don't take the job.

As for public places, there seems insufficient basis for penalising smoking in the open air (except in such unusual cases as qualify as assault); only in confined spaces is there any significant nuisance. Hospitals, libraries and the like can normally be relied upon to restrict smoking appropriately on their own authority. Restaurants and shops — the focus of much proposed and actual anti-passive-smoking legislation — are public only in the sense of being open to all comers. The recognition of private property rights in most of these so-called public places readily solves the apparent dilemmas of passive smoking.

Thus, if a restaurateur states clearly on the menu board outside that smoking is (or is not) permitted, no one has any cause for complaint. If the railway company decides to provide both smoking and non-smoking carriages, there is no difficulty (unless passengers in non-smoking compartments are subjected to smoke drifting in from elsewhere, when they have a case for damages against the company, or passengers violate the terms upon which the company has agreed to convey them, by lighting up in a non-smoker, when they themselves are rendered liable to a fine).

If these issues had not been so distorted by false arguments and blatant propaganda on behalf of the so-called public interest I should not have felt it necessary to go into such detail; as it is it seems important to set the record straight. Smoking should not be permitted in a police station, or a court of law, or a prison, or any other place that non-smokers may be forced to attend, nor in any building to which they have an unconditional right of access, nor in any place where they have been contractually guaranteed a smoke-free environment. Otherwise the mere existence of passive smoking risks cannot justify any further statutory intervention.

Children

The problem of the children is more difficult. Parents who smoke certainly do put their children at risk, though the risk is not particularly great — a death rate of perhaps 1 in 300. A not entirely satisfactory solution would be for such children to sue the parents for the expected loss due to ill health and loss of amenity, in all perhaps a year's average income; alternatively they might sue for divorce or leave home. However, I would argue that the dangers are by no means great enough to justify direct intervention, so long as we are willing to respect the rights both of children who want protection and of those who don't want it.

A model for other drugs

As previously noted, if drugs are legalised the doped cigarette is likely to become commonplace. Although this complicates the passive smoking issue somewhat, it does not compromise the underlying principles (so now you know what this chapter is doing in an treatise on the drug problem). In most cases, the simple enforcement of property rights will prevent involuntary passive drug abuse. Property owners will have to specify what kinds of cigarettes or what other forms of drug use will be permissible on their property; users and abstainers will then have to choose how to travel, who to visit, and where to eat, shop, work and relax. Passive smoking can thus serve as a model for dealing with the varied harms that drug users may inflict upon other people.

Chapter 8. Drugs Cause Crime

Categories of drug related crime

It is frequently and correctly pointed out by opponents of the present system that a large percentage of today's crimes are drug-related. Opinion (or dogma) is divided upon whether such crimes are principally caused by the drugs or by the drug laws. We may usefully categorise drug-related crimes as follows:

1) Offences against the drug laws themselves.
2) Offences committed by drug dealers to secure their spoils.
3) Offences committed by drug users to support their drug habits.
4) Offences committed by drug users under the influence of drugs.

Offences against drug laws

Offences against the drug laws are clearly artefacts of the legal regime and would cease to exist as and when those laws were repealed. Given that the investigation and prosecution of such offences relating to the production, smuggling, distribution, vending, possession and personal use of illicit drugs accounts for a sizeable fraction of law-and-order expenditure, not to mention police manpower, court time and prison places, it is apparent that the elimination of this whole category would be highly beneficial.

Offences by drug dealers

The second category describes the "rent-seeking" behaviour of undoubted criminals. Here we have gang warfare, double-crosses, murders, enslavements, robberies, threats, thuggery, blackmail, bribery, corruption and all the rest. It should not be necessary for me to go into further detail. Whatever the theoretical merits of a free market in psychoactive substances, as matters stand today the suppliers of black market drugs are not unreasonably to be characterised as "scum". Although we may not care very much what these criminals do to each other, we cannot be indifferent to the fate of innocent bystanders who "see too much" or are "caught in the crossfire". Legalisation, it is claimed, would eliminate this category of crimes by undercutting the basis of the illicit drug trade. We need to be cautious about accepting this claim. Although some drug traffickers will no doubt retire or turn honest, most will seek to expand into any still-banned sectors (eg. sales to minors), obtain control of the new legitimate market (which they will see as a prize), or diversify into other profitable criminal endeavours. In the short term, at least, "organised" crime might even increase.

Offences by drug users

The third category is currently the most worrying, since it is clearly on an upward trend and may already account for as much as a half of all crime. Its existence is clearly the result of the high street-price of drugs consequent on their illegality. Maintaining a habit is more than most users can afford, especially since their addiction usually reduces their earning capacity also. Since the free-market price of these drugs would be lower by at least a factor of ten (and most probably by a factor of a hundred) it is clear that legalisation would have an enormous impact; individually, addicts would be overwhelmingly better off, and all but the very poorest would be able to fund their habit without resorting to crime. Unless the number of addicts increased hugely, this category of offence would all but disappear.

Offences under the influence

The fourth category should be understood to embrace not only criminal acts committed under the influence of drugs but also civil wrongs (including those associated with passive smoking) and various damages not currently addressed under the legal system (such as acting as a disease carrier, perhaps), but not harms that violate no rights (for example, the distress of family and friends). It is a category often ignored, possibly in reaction to the absurd "reefer madness" propaganda of former decades. Except in relation to alcohol, it is not a major factor in drug crime today. Nevertheless, such offences do exist. They would become important if plummeting prices on legalisation led to the large increase in total demand that economic theory would predict. We should note that even though alcohol prices are kept artificially high by taxation, and alcohol consumption thereby kept down, crimes committed under the influence of alcohol have become a serious social problem; similar problems might be expected to arise with the legalisation of other drugs.

Chapter 9. Drug Crimes Are Victimless

No complainant

It may seem strange if I now argue that drug crimes are victimless. Haven't I just finished proving that they have many victims? Nevertheless, there is an important technical sense in which drug crimes are indeed victimless, because nobody brings any complaint.

Let me clarify that. We're talking here about category 1, most of category 2, and some of categories 3 and 4 above. When an addict (or anyone else) mugs you for your wallet, there is no question but that a crime has been committed and that you are the victim; you immediately complain to the police. But when a dealer sells drugs to a user, complaining to the police is the last thing on their minds; the transaction is private, and meant to stay that way. So how are the police to know that that particular offence ever took place? When a parcel of drugs is smuggled into the country, no outraged victim calls the cops. When one gang of drug dealers sets upon another, the victims, being criminals themselves, are in no position to complain. As far as the law is concerned, there is no complainant, thus no victim. This causes substantial difficulties and raises the spectre of corruption.

Ideals of common law

Consider an ideal common law regime. When one individual violates the person or property of another an offence is committed. The victim may then bring suit against, or prosecute, the person he accuses of committing the offence. If the case is proven, the defendant is obliged to make restitution. Overall, an offender's expected penalty should equal the victim's expected loss plus costs. The function of the court is to render judgement and enforce it against the party at fault, but it has no direct interest in the outcome (although it has an indirect interest if it makes good the victim's loss, as in justice it should, whether or not a conviction is actually obtained in any particular case). Indeed, if the parties can reach an out-of-court settlement of their dispute, there is in general no necessity for the court to become involved at all. Without a complainant there is no complaint.

Yet there are some offences for which this common-law ideal seems impracticable: namely, offences against the rule of law itself — treason, terrorism, oppression, corruption. Here the offence is not merely against some identifiable person, but against civil society as a whole. A terrorist's bomb may destroy a merchant's shop (and for this damage the terrorist ought to pay under the common law), but this is the least of his crime; for his purpose is to terrorise and oppress not only that particular merchant, but all similar merchants actual and potential, and all their actual and potential customers. There is no way we can gather together or even identify all his victims, still less determine the magnitude of the loss each has hypothetically suffered. Therefore the state must take it upon itself to prosecute and punish, on behalf of all its citizens. The just and proportional penalty is incalculable, but it is surely large, for what act could do more evil than the destruction of the rule of law itself? Hence the traditional sentence of death for treason.

Other offences may not be aimed specifically against the rule of law, but nevertheless lack identifiable and particular victims, and the state will be obliged to act in these cases too. Many drug offences fall under this heading. Unfortunately, the state now chooses to prosecute ordinary criminal cases in the name of the people or the sovereign, as if there were no identifiable victim under common law; this unnecessarily blurs a real distinction. Where the state is a party to the action, the legal system cannot be entirely impartial; there is undoubted scope for corruption. When the number of cases is small, yet the severity of the offence large — as with treason — this scope is limited. So too where there are actual victims to complain. But where "victimless" offences comprise a large fraction of the caseload, we are asking for trouble.

Chapter 10. the Corrupting Effect Of Anti-Drug Laws

No victim to complain

The civil rights implications of drug-law enforcement are well known. But perhaps I should outline some of the more serious problems. For each of these, the ideal solution, where practicable, would attempt to identify specific victims in such a way that each prosecutable offence could be brought under the aegis of common law; and if no such victim can be found consideration should be given to abolishing the offence in question.

Because there is no victim to complain, it is easy for dishonest officers to get away with taking bribes, and for drug traffickers to get away with bribing the police — not to mention the judges, juries, witnesses and anyone else whose perjured testimony or corrupt assistance might come in handy. After bribery, of course, comes blackmail — whether the police blackmailing the traffickers or vice versa. A climate of corruption arises in which it is very hard for anyone to retain his integrity; "everybody does it", so if you want to be one of the boys you've got to do it too. Although this is far less of a problem in Britain than in America, there are no grounds for complacency.

Because there is no victim to complain, police officers are tempted to act as agents provocateurs, soliciting the very crime for which they subsequently make an arrest. Entrapment becomes the norm. The police break the law, in order to catch "criminals" who otherwise might not have committed any offence at all. The police are then praised for their crimes, not punished, whilst their victims, the people they deliberately led into error, are vilified and cast down. Talk about Alice-in-Wonderland!

Because there is no victim to complain, police officers demand and receive extraordinary powers of search and seizure. The merest suspicion of involvement in a drug-related offence, perhaps no more than a telephoned tip-off, is considered "probable cause" for a warrant, which may not even be applied for until after the fact; illegal search-and-seizure becomes commonplace. Due process flies out of the window. Any property, not just contraband, that might conceivably have been used by some person at some time for something even peripherally associated with drugs may be confiscated, to be held in defiance of constitutional or other guarantees until the courts get around to holding a trial. Even when a defendant is acquitted, sequestrated property will not always be returned, and in the meantime a legitimate business may have been destroyed; compensation for such losses would be most unusual.

Laundering

Closely related is the tendency, now enshrined in American if not quite yet in British law, to look upon all property associated with known traffickers as tainted, even that which is bought and sold in an entirely legitimate fashion. This taint is believed to be contagious; thus if you ever received a cheque for decorating the house of a man who subsequently turned out to be a drug dealer, all the money in your bank account — defined as a "money-laundering" account — could be seized. Theoretically, so too could the assets of your elderly mother, to whom you once made a small but tainted gift. This is, of course, absurd, but seemingly not too absurd for the war against drugs.

The keys to this injustice are twofold. First, a reliance upon the saw "give a dog a bad name". If a criminal gets some of his money from drug dealing, all of it must be suspect — never mind trivialities like proof or even evidence. Second, a failure of proportionality, a failure to "make the punishment fit the crime", the point of the Old Testament rule of "an eye for an eye", which forbids excessive punishment. There is also the danger that even the confiscation of the trafficker's own property may be treated less as a punishment than as an excuse for grabbing everything the state, or the enforcing agency, can lay its hands on.

This is not to say that the confiscation of a criminal's property or assets is of itself unreasonable or unjust. On the contrary, in the context of a fine, whereby a prison sentence might be reduced by say one year for every £40,000 confiscated, it would be entirely appropriate. Nor would it violate the rule of law if for certain serious offences all assets of the convicted felon were forfeit (perhaps up to some specified maximum), any lesser penalty being adjudged too lenient.

Is the cure worse than the disease?

None of this need be taken to imply that the anti-drug laws are in the nature of a statist conspiracy to destroy the rule of law and the principles of common justice, in order to replace them with a totalitarian or bureaucratic police state. Such conspiracies may exist. But it seems more likely that these evils and injustices are here largely but not wholly the unfortunate and almost inevitable result of well-meaning attempts at bringing under control a very real and difficult problem. Nevertheless, we might reasonably ask whether the cure may not be worse than the disease.

Chapter 11. The War On Drugs Isn't

A declaration of war

The failure of the so-called "war on drugs" is widely seen as discrediting the hard-line approach to drug control. In reality it does nothing of the sort. The reason is simple: the war on drugs is a phoney war. It is a war we have not yet begun to fight.

Forget the rhetoric. Forget the politics. Forget, for the time being, any question of right or wrong. What would a real war on drugs entail? Here's the scenario:

The passage through Parliament of a Defence of the Realm against Dangerous Drugs (Temporary Provisions) Act sets aside the civil authority of customs and excise, the courts and the police; this is tantamount to a declaration of war. Habeus corpus is suspended. Jurisdiction devolves onto the military, which is ordered to crush the drug trade by whatever means it deems tactically and strategically sound. D-notices ensure that the press prints only what it's told to print. Parliament must now toe the government line.

At home, the army performs spot checks of vehicles and passengers entering the country; all smugglers are summarily executed. However, the army's major effort is directed against the street-level pushers; these are soft targets, easy to detect and capture; after interrogation and torture they face the firing squad. Intelligence on those higher up the chain is thus not difficult to secure. Information gathered this way allows commando raids to be launched against the traffickers' warehouses, distribution centres and headquarters. Some of the drug lords may attempt to put up a fight, but against the firepower of a modern army they haven't a chance. So they're holed up in a house with a dozen hostages? Slam an anti-tank missile through the window. So they've set up a strong-point protected by nests of machine-guns? Napalm the block. So their shoulder-launched anti-aircraft missiles are threatening our helicopter gunships? Call in an artillery strike from twenty miles away.

In the overseas theatre, our commanders take the view that the producer countries are harbouring the enemy. They demand that the export of drugs be stopped, on pain of massive military retaliation: If the Colombian people and army do not destroy the cocaine cartels, they say, we will destroy Medellin, then Cartegena, then Bogata, and so on, until the menace is ended or the country has been bombed back into the stone age. In the meantime, the Navy will blockade the seaports and interdict air traffic. Warplanes flying from naval carriers or bases in the Caribbean will carry out raids into enemy territory: napalm and defoliants against the coca plantations, cluster bombs against the villages.

Rather than allow themselves to be nuked into oblivion, we may assume that the Colombians will end the export of cocaine — whatever the strength of the drug lords and the cost to their economy and internal liberties. We may also assume that once Colombia has fallen into line — or been made an example of — the rest of the producing countries will follow suit.

Lack of will

All right. Enough fantasy. It should be obvious enough that in an all-out war the drug traffickers would be exterminated and the drug trade eliminated. What hinders us here is not lack of ability but lack of political will. We hope that the words will stand in for the real thing. We want the results, but are unwilling to pay the price. Perhaps indeed the price is not worth paying; perhaps indeed a war is unnecessary or unjustified; but if that is what we believe, we should say so without undue pretence.

Let me point out one serious danger. If the drug problem keeps getting worse, sooner or later we'll have to call in the army to deal with it. If we treat them the way the Americans treated their military in Vietnam, by subjecting them to rules of engagement that prevent them from going out and winning, we will corrupt the armed forces in the same way that the police and courts are being corrupted today. It may then prove impossible to win the war, much as, without a pitiless external threat, it would even now prove difficult or impossible for corrupt third-world armies to eradicate the drug problem in their own countries. For the drug lords would already "own" many of the units intended for use against them; and unless the army backed off the result would be chaos and civil war. In such an event there might then be little alternative but to admit defeat and accept a move to legalise all drugs across the board — if indeed the drug lords and their bought politicians would even then permit it — for it is a paradox of our topsy-turvy world that the dealers in illicit drugs are the very last people to want the trade legalised.

A war on drugs is a drastic option. However, it need not be quite so drastic as in the scenario above; carrying the war to the producing countries is unnecessary and unwise — not to mention ethically dubious — and politically and militarily dangerous. Moreover, since most if not all drugs could if necessary be grown or manufactured locally, destroying the existing producers would not of itself solve the problem. Self-evidently, the most vulnerable aspect of drug trafficking is at the point of sale; therefore this is the point against which an attack would be most logical. If the distribution network within this country can be destroyed, and if trying to buy or sell drugs here gets you killed, the prevalence of drug production elsewhere in the world will be of little significance.

It is abundantly clear that, despite the rhetoric, we do not at this time have anything approaching a war on drugs. Thus to argue that the war on drugs doesn't work is to miss the point. It is an error on the same level as the common practice of blaming free-market capitalism for ills that are actually the result of government intervention.

It is also clear that, at present, there is no political will for a genuine war on drugs. To argue in favour of one at this time is either disingenuous or unrealistic. Nevertheless, it remains an option, a viable option, that might in some circumstances prove acceptable or even unavoidable.

...

— COMPLEXITIES —

Chapter 12. Prohibition Can Work

Half hearted prohibition

We are often told that anti-drug laws are futile because history shows that "prohibition cannot work". The failure of Prohibition in America is cited as proof. There can be little doubt that it was a failure. The experience of the United States with the Volstead Act and the gangsterism of Al Capone was sobering. Or rather, it wasn't! But the lesson drawn is invariably the wrong one.

Prohibition in America failed because it was half-hearted. Most of the people didn't want it. The politicians wanted it only for other people. So the law was never adequately enforced. The proliferation of speakeasies in which the consumption of illegal liquor was permitted with scarcely any official restraint was notorious. The law was clear — they should have been closed down. But even the President regularly flouted the law. And not just the law — the very constitution he was sworn to uphold!

Let me make it clear that my criticism of the inadequacies of federal enforcement of the Volstead Act is not to be taken as implying my approval of Prohibition in principle. To be blunt, I do not approve of the prohibition of alcohol; I consider it an unnecessary and unconscionable interference with the liberty of the individual. Nor should anything I say here be taken as defining any particular stance on the much more difficult question of the prohibition of addictive drugs. What is being discussed is not so much the morality as the practicality of prohibition. In ethics we learn that "ought implies can"; there is little point in attempting to decide what we should do until we understand what we can do.

Prohibition in America

Pressure towards the prohibition of intoxicating liquors built up in America after the civil war. There is disagreement as to the driving force behind the temperance movement; some accuse the movement of being anti-Catholic, others of being racially motivated; still others point to the Puritan strain present in colonial society from the outset and most noticeable today in the so-called religious right. However, the parallel growth of the temperance movement in Britain would seem to point rather to the newly-awakened liberal concern with poverty; for the squalor and destitution in which the poor were so often seen to live — and which so shocked the middle-class Victorians — was blamed largely on the evils of drink. Indeed, no one who reads the records of the time can be in any doubt as to the validity of the link. People were poor because they drank, and drank because they were poor, in a vicious cycle of degradation.

Whatever the underlying reasons for the strength of the temperance movement, the results are clear. By the end of the nineteenth century more than half of the states of America were "dry". True, there were loopholes — until 1913 liquor could be imported by mail order from the remaining wet states — but gradually the prohibitionists were getting their way. And they were succeeding! Alcohol consumption was down and so it seemed were rowdiness and poverty. The problems later associated with Prohibition, such as organised crime and political corruption, did not arise — or not to any worrying degree. The Demon Drink was on the way out. Indeed, if the statistics are to be believed, the temperance movement was so successful that even today only around 70% of Americans drink, compared with well over 90% in the UK (frankly, I find that 70% figure hard to swallow; if true, it may be down to the fact that more Americans are church-goers; but perhaps all it means is that 30% are under the astonishingly high drinking age of twenty-one).

The Eighteenth Amendment to the Constitution was ratified in 1919 and came into operation in 1920, making the manufacture, sale and transportation of intoxicating liquors for "beverage purposes" illegal everywhere in the US. The Volstead Act then defined "intoxicating liquor" as anything with an alcohol content of more than half a percent; this came as a nasty shock to many of the amendment's own supporters, who thought they were prohibiting distilled spirits, not beer and wine. Alcohol for "medicinal purposes" was exempt — more on this later.

Problems with Prohibition

The problems that arose with Federal Prohibition have relevance to the wider question of drug control. These problems include: organised crime, corruption of politics, the police and the courts, contempt for the law, criminalisation of ordinary citizens, damage to health, destruction of livelihoods, and the extraordinary cost to the economy. Prohibition also failed in its primary purpose, that of eliminating the widespread abuse of alcohol.

At the risk of raking over too familiar ground, let me spell out what Prohibition meant. It did not create the phenomenon of organised crime, but it certainly gave it a boost into the big league. Al Capone and his minions took on the aura of Robin Hood and his merry men — perceived as public benefactors rather than criminals. In the public eye, the buccaneering myth masked the reality of bloodshed, threats and violence. Yet whatever the excuse, and however attractive the legend, Robin Hood himself was no saint; strip away the pretence and we find a gangster. Like Al Capone. One of the greatest dangers of bad laws is the way they make heroes out of villains; or, which is worse, make heroism out of villainy. Another danger is that contempt for the bad law spills over into contempt for the good. By making ordinary people criminals, Prohibition encouraged the commission of wrongful acts they would otherwise never have entertained. This was especially true for those whose livelihood depended on drink; brewers, distillers, wine-makers, grape-growers, bar-owners, hoteliers; the list seems endless.

The organised gangsters did not stick to rum-running and shooting each other. They were also into corruption. They bought judges, juries, policemen, politicians, prosecutors and witnesses. They even bought elections. Where they couldn't buy, they threatened or blackmailed or murdered. Although Prohibition did not create political corruption in America, it undoubtedly gave it free rein and encouraged its spread. Ultimately it was the American taxpayer who paid. No one knows how much he paid. But it was a lot.

Much of the damage to health came from the fact that bootleg liquor was often adulterated with wood alcohol, which causes blindness. Deaths from methanol poisoning may have exceeded a thousand a year. Perhaps more important, if less dramatic, was the shift away from unwieldy beers and wines towards concentrated spirits, which were more easily bootlegged — but which, being more potent, also led more easily to alcoholism. This factor may have caused additional deaths in the tens of thousands a year. Moreover, since drinking was illegal, few would admit to having a drinking problem, and so the medical treatment of alcoholism was further undermined.

It has been suggested that alcohol consumption actually rose during Prohibition. This seems improbable. The only evidence for an increase is anecdotal — no statistically significant comparison of the legal with the illegal regimes is now or ever would have been possible. Estimates of the consumption of bootleg liquor must inevitably have been tainted by political expediency — depending upon whether one wanted to prove that Prohibition was, or was not, working, or that this department, or that, should receive a higher budget.

However, we can get a handle on the likely change in alcohol consumption by looking at the effect of Prohibition on prices. This was probably not great. Certainly we would not expect there to have been any net fall in price, even though the bootleg trade was able to cut costs by evading taxes; otherwise the black market would already have taken over. At the same time, the facility with which home brewing, wine making and "moonshining" could be undertaken, and the legal availability of medicinal alcohol, would have prevented the price from reaching exorbitant levels. On balance, the effect was probably a modest price increase. Because alcohol demand is elastic, this will have led to a similarly modest reduction in consumption (but an increase in the anti-social nature of that consumption). Since the period was one of rising prosperity, this reduction must be offset against the rise in demand induced by the increased affordability of drink at a given price; but this increase would have occurred anyway, unless taxes had also been increased in proportion. The bottom line is that, although the precise effect of Prohibition is unknown, any reduction in alcohol consumption was surely slight — far short of the goals of the prohibitionists.

Analogy with fight against drugs

It is clear that Prohibition and the fight against drugs have much in common; it is for this reason that I have discussed it here at such length. For if Prohibition was ill-conceived (as surely it was) then the same could evidently be said of today's so-called war on drugs. However, before we agitate for the abolition of this modern Prohibition, let us note one uncomfortable fact. The evils of Prohibition were not eliminated by the repeal of the Eighteenth Amendment; organised crime did not go away, the corruption of politics, police and courts if anything became worse, respect for the law was not renewed, damage to the economy was not reversed, government spending did not fall, and excessive and anti-social drinking continued.

Making prohibition work

None of this was inevitable. Prohibition could have worked. Let's look at how. The Eighteenth Amendment made bootlegging a crime against the constitution. Bootleggers and their customers were not merely criminals; they were traitors; the conspiracy of organised crime and the smuggling and distribution of illicit liquor by armed gangsters was insurrection; the whisky-guzzling senators and presidents were committing treason. Under the War Powers provision of the American Constitution (suspending the writ of habeus corpus in time of invasion or rebellion) they would all have been liable to summary execution.

Had the political will existed — it didn't, of course — the trade in bootleg liquor could have been squashed almost before it got started. Take the speakeasies. How long would they have lasted if as soon as the authorities got to hear of one it was raided by armed troops who immediately lined everyone up against a wall and shot them? How long would Al Capone have lasted after army snipers were tasked to take him out?

Back off a peg. Suppose we stick to the civilian regime. We could still introduce the death penalty for bootlegging and racketeering. But suppose we don't. Suppose we stick to the Volstead Act as promulgated. It was obviously politically viable — it passed. Was it ever workable? Certainly it was — or would have been had the determination to enforce it not been lacking. Take the speakeasies again. How long would they have lasted if as soon as the authorities got to hear of one it was raided by armed police who immediately carted everyone — and I mean everyone — off to the lockup, there to stay until convicted by a court of law and sentenced to a long spell up the river?

Am I flogging a dead horse here? Isn't it already obvious that Prohibition would have been effective if enforced with sufficient ruthlessness or honesty? I'm not saying that every last drop of alcohol would have been eliminated. But surely the excess that plagued the nation would have been overcome.

Prohibition in other countries

I've discussed the experience of the United States at considerable, perhaps inordinate, length. But prohibition was not unique to America; for instance, Iceland had it for almost thirty years. We don't hear very much about prohibition in other countries, possibly because, for the most part, where it was enforced it worked. Good news is no news. We only hear about the failures. Even in America there must have been millions who stopped drinking as a result of Prohibition, but how often are they even mentioned?

In Islamic countries Prohibition has been traditional for over a thousand years. They are not renowned for the presence of the Italian Mafia. They also provide evidence for my claim that what counts is whether the law is enforced whole-heartedly or not; Islamic states in which it is not well enforced display the social ills of drunkenness, alcoholism and corruption; those in which it is enforced by and large do not. The severity and certainty of sentencing is sufficient to deter.

Chapter 13. Medicinal Use Under A Regime Of Prohibition

Leakage from medicine to illicit use

When an intoxicant has legitimate medical uses prohibition creates considerable difficulties. If ordinary commercial distribution is banned, what happens on the medical side? Either doctors will be prevented from prescribing it, or there will be a leakage from the legitimate medical sphere into the illicit "recreational" sphere. One might try to differentiate the products (thus morphine is used in medicine, whilst heroin is sold on the streets) or discourage the medicinal use of certain preparations (thus cannabis itself cannot as yet normally be prescribed, though THC and other constituent cannabinoids may be); but this is of limited effectiveness (since morphine is also used by addicts, when they can get it); usually, the medicinal form is more potent and thus more desirable. Moreover, where the street product is of uncertain strength, and liable to be cut with unknown and sometimes dangerous fillers, the medicinal product is pure and reliable. An illicit market in legitimate medicinal preparations is therefore almost inevitable.

Outright theft of medicines from pharmacies, doctors' bags and doctors' surgeries is the most obvious but not the most serious problem here. It is a crime on the same level as other drug-related crime, where addicts rob and steal to buy black market drugs, and will attract similar penalties. If we can deal with the one we can deal with the other. A minor ethical difficulty (minor from the point of view of society) is whether doctors should go armed to protect themselves from robbers; if they do, Hippocrates lies uneasy in his grave; if they do not, home visits by general practitioners, especially at night, may have to be curtailed.

Dishonest doctors

There's a bigger problem. The honesty of doctors and pharmacists is not unlimited. The temptation to supply illicit drugs or prescriptions for cash will be enormous. The profits are likely to be even greater than for regular drug dealers and the risks comparatively slight.

If medicinal drugs are sold to addicts in an openly illegal manner, offenders can simply be prosecuted and the trade stopped (or at least reduced to manageable proportions). The difficulty lies in drawing the line; when is a sale justified on medical grounds and when is it not? Is a prescription real — or is it phoney? This problem becomes increasingly serious the more earnestly drug abuse is combated, and the greater the penalties that accrue to illegal supply and use.

Defining medical use

Even defining legitimate use in law is far from easy. There are basically three possibilities. In the first, we define legitimate medicinal use as that which the patient's doctor considers legitimate. It makes sense, since he is obviously the person in the best position to judge, but it is so open to abuse as to be unworkable. In the second, we define legitimate medicinal use as that which a reasonable man would consider legitimate. This leaves the doctor in the unenviable position of never knowing where he stands; for how could he ever be sure that a lay jury would accept his medical judgement? Shall he supply painkillers to this sick person or not? Shall he try to help this addict or not? He's in a quandary. The third possibility involves trying to specify each and every situation in which a particular drug may or may not be administered. This pharisaic approach is hopelessly impracticable. No one could ever lay down such detailed rules, and even if they could, no doctor could possibly remember them.

Existing law is an unsatisfactory compromise of all three definitions. From the first we take the requirement that these medicines be obtainable only by doctor's prescription from a registered pharmacist. The doctor is then placed under the authority of his medical peers, who can suspend his license on proof of malpractice; only in exceptional circumstances will he face an ordinary court of law. A number of specific rules, some of which have legal force, are added for guidance; thus in the UK heroin and methadone are only to be prescribed to registered addicts.

The medical monopoly

A seemingly minor but potentially deadly side-effect of the present system is the way it perpetuates the doctors' and pharmacists' professional monopolies. On some calculations they are responsible for hundreds of thousands of excess deaths a year in Britain alone. It is a fact of human nature that doctors do not always act in the interests of their patients; like the rest of mankind, they appreciate wealth and status. The medical monopoly, created in the mid-nineteenth century to boost the income of doctors and pharmacists by restricting competition, led inevitably to poorer services and higher prices. In this respect it is no different from state monopolies in transport, in industry, in the utilities and services, in broadcasting, in education, in welfare and in a host of other fields. Remove the discipline of the free market from any endeavour and it deteriorates. Fortunately, both the damaging effect and the underlying injustice of state subsidy and protection are at last beginning to be recognised; many, though by no means all, of these erstwhile monopolies have now been opened to competition.

The medical monopoly is seldom questioned; yet as a direct result, medicine today is less effective, more expensive — and in shorter supply. To put it bluntly: it is killing people; just as not so long ago surgeons killed countless young mothers by refusing to wash their hands between patients, until the white-coated ritual of sterile procedure was invented to wean them away from a bloodier hieromancy. This is not the occasion to discuss these issues in depth; I mention them mainly because of the constraints that eliminating the monopoly would place on the treatment of the drug problem. If we allow almost anyone to set up as a physician or pharmacist and dispense illicit drugs, that will blow a hole in the side of Prohibition, a hole we will not find it easy to patch. This may be taken as an argument against lifting the monopoly, desirable though that would be on other grounds.

Full legalisation best

Prohibition in the United States, you will recall, made an exception of alcohol for medicinal purposes. The results might have been expected: a proliferation of quack remedies, an enormous increase in the number and sales of alcohol-based patent medicines, and a corruption of those sectors of the medical profession that pandered to the demand. It might have been worse: had Prohibition been adequately enforced the pressure upon doctors and druggists would have been even greater.

From the perspective of legitimate medicine, if not necessarily of the medical profession, it would be best if all drugs were legalised; for then no impediment would exist to legitimate medicinal use. This is not to say that drug use would be uncontrolled; in a free market under common law, in which property rights in developments were both recognised and well-enforced, pharmaceutical companies, wishing to manage and preserve their assets, would determine the conditions under which they would permit their trademarked and patented products to be dispensed. The widespread misuse of antibiotics, which has created so many resistant bacterial strains, would probably never have occurred. After all, drug companies don't want their drugs to become worthless.

Yet even if drugs are not all legalised, we cannot reasonably ask doctors to give up the legitimate use of all substances that might also be abused; to do so would be to deprive them of all sleeping potions, nostrums, narcotics, tranquillisers, painkillers, anaesthetics, antidepressants, antihistamines, stimulants, surgical spirits — perhaps even coffee.

A way must be found to combine legitimate medical use with any method of control of non-medical or recreational use that may be deemed socially necessary. Obviously, this is most readily achieved under a regime of full legalisation.

Chapter 14. Partial Legalisation Is Not Enough

Decriminalisation

It is sometimes held that either the decriminalisation or else the partial legalisation of various drugs is an appropriate response to a growing problem. Glowing but misleading reports of the situation in the Netherlands, where small quantities of marijuana can be bought quasi-legally in coffee shops, are commonly presented as evidence. American writers similarly cite the United Kingdom's experience with the provision of heroin and other drugs on the NHS as a success story. Evidently, observation of the drug problem obeys the inverse square law; distance lends enchantment. The ground truth is less appealing.

Decriminalisation is the word used when the law stays the same, but the police and courts turn a blind eye to certain classes of offence. This is considered less radical than actual legalisation. It appeals to politicians and bureaucrats because it can be introduced without all the broo-hah-hah of pushing through potentially unpopular Acts of Parliament. In the Netherlands, for instance, the importation, distribution and sale of marijuana is still a serious crime, but individual users are mostly left unhassled and the speakeasies it's sold in are left unmolested, so long as the right palms are kept greased.

Speakeasies? They don't call them that, so far as I'm aware, but that's what they are all the same. The parallels between decriminalisation and Prohibition are too close for comfort. In the short term decriminalisation may seem to work, but it's a dangerous game. Because marijuana is still illegal, it sells in the coffee shops at far above the free-market price. This keeps demand within bounds. Whether consumption has actually risen or fallen is hard to say. It is certain that customers are thereby attracted into the Netherlands from neighbouring countries and that this is imposing strains on relations within the European Union.

This is not the first experiment with decriminalisation. Some years ago Switzerland tried it with heroin. The idea was to stem the spread of AIDS by providing heroin addicts with clean needles, which would only work if the addicts weren't prosecuted. So in Zurich's Platzspitz park what can only be described as a drug ghetto was created, in which the rule was "anything goes". The result was disastrous. Whether there was any beneficial effect on the spread of AIDS is doubtful, but the upsurge in open drug abuse was so marked that the policy had to be abandoned.

Although decriminalisation is usually considered appropriate only for soft drugs like marijuana, I find myself bound to urge against its application to any drug or indeed to any other illegal or quasi-legal activity (such as prostitution). Thus far in this treatise I have for the most part tried to avoid moral issues in favour of getting the facts straight first, but here I must take a stance and say: decriminalisation is wrong in principle. It implies that it's all right to break the law, so long as you don't break it too much, or you don't get caught, or you're not important enough to catch, or you know the right people to bribe.

Enough preaching. Decriminalisation is not only corrupt — it's stupid. It brings the law into contempt, creates a climate of graft and dishonesty, and positively begs the drug lords to buy and blackmail police officers, politicians, officers of the court, bureaucrats, anyone in a position to sweep their crimes under the carpet. Decriminalisation grants officials discretion over when to uphold the law and when to ignore it. This is arbitrary power — not the rule of law. No one knows the rules — because there aren't any. To follow this path is to abandon the gains of civil society for the venality of a third-world dictatorship. Laws should be upheld. Laws should be clear. Discretion makes bad law. Decriminalisation destroys law.

In addition we must note that even at its best decriminalisation solves little; most of the problems associated with drug abuse remain; most of the crime; most of the hazards; most of the social harm; and on top of these we add the burden of hypocrisy.

Legalisation

Hereafter, then, let us assume that liberalisation means legalisation, in which the law is enforced in good faith, but certain statutes concerning drug use are abolished or amended. Such legalisation can be full or partial, universal or particular. For example, we can permit sales to grown-ups, but not to minors (this is how the law stands on alcohol today). Or we can permit sales of marijuana, but not heroin. There need be nothing dishonest or unprincipled about such partial or particular laws, though it is arguably best to avoid them where we can, because they require us to draw a line whose position is always somewhat arbitrary. Why eighteen years of age rather than eighteen years minus a week? And if heroin's bad and marijuana's okay, where do we put pipe opium or peyote?

Partial legalisation

However, the major difficulty with partial legalisation is rather different: it won't solve the drug problem. Suppose we allow sales to persons above the age of twenty-one; these, we say, are old enough to know their own minds; if they want to use drugs, that's their funeral. The price of drugs falls; the crime associated with drug use by over-twenty-one-year-olds disappears. What do the criminal drug dealers do now? Give up and go home? Well, yes, some of them will do just that. Others will observe that sales to under-twenty-one-year-olds are still illegal and thus still offer rich black-market pickings. They drop their smuggling operations (unless the drugs are heavily taxed) and buy wholesale at market prices. Then they concentrate their drug-pushing efforts on the 18-21 year age bracket.

Since drugs will be available to anyone who is (or successfully pretends to be) over 21, the black-market price will be far lower than at present, but still sufficiently higher than the free-market price to support handsome profits. The greater the number of young addicts the higher those profits will be, so the suppliers will go all out to win new customers. The degree of violence and criminality in this new market may be less than now, but the scale may be even greater; the number of "illegal" addicts may actually increase. Over time, the upward trend of drug-abuse and drug-related crime is likely to resume; the problem hasn't been solved.

So we legalise sales to eighteen-year-olds. Does that work? Hardly. The drug pushers simply start selling more to minors. The story goes on. As we progressively reduce the legal doping age, younger and younger children are dragged into the net. The fact is, criminals don't care who they sell to. They'll rob babies in the crib or turn toddlers into junkies if there's even half a chance it will make them a buck. And children as young as four or five can steal or beg considerable sums to maintain a drug habit. It happens even today; not often; but enough.

Well-meaning attempts to legalise drug use for part of the population will only redirect the activities of the criminals to those excluded, however reasonable those exclusions may be; few of us want to see young children buying coke (unless it comes in cans!), but the drug pushers don't see it that way. Partial legalisation will only make the problem more horrifying.

The British Solution

Can we get around this difficulty by making drugs legally available only to registered addicts? Not entirely. This has been a key element of UK policy for many years. It is clear that it has failed to eliminate the drug problem. It has even failed to stop it getting worse. There seem to be several ways of handling such a scheme, each with a built-in failure mechanism.

The first error is to make it difficult or disadvantageous for individuals to register as addicts; indeed, since registration is an admission of lawbreaking it is hard to see how this can be entirely avoided without falling into the trap of turning a blind eye to crime (the perils of which we have already discussed above). If addicts find the demands of registration too onerous they will refuse to play along and will continue to purchase their drugs on the black market.

The second error is to allow the addicts too little of the drug to satisfy them (or to fob them off with an alternative like methadone instead of the "real thing"); a variant upon this is to dispense only a small quantity at a time, forcing users to come back to the clinic for every single fix — possibly several times a day. The black market will serve these addicts as a supplementary supply.

The third error is to allow the addicts more than they need; then they will take the surplus and sell it on the streets. Since only the addict himself knows the "right" dose, with the best will in the world doctors cannot systematically avoid both Scylla and Charybdis. To make matters worse, many doctors believe they have a responsibility to wean such addicts away from the drug that is destroying their lives; even though full maintenance of a habit may be lawful, conscientious doctors may be unwilling to prescribe more than a steadily declining dose; less honourable suppliers will then make up the shortfall.

The practice of dispensing controlled drugs to registered addicts, sometimes called the "British Solution", is unfortunately no solution at all. At best it ameliorates the suffering of existing users and softens the impact of drug-related crime. For it to be completely successful it would be necessary to make registration painlessly simple for everyone, including juveniles, and to be willing to supply each drug on demand in unlimited quantities, either without charge or at no more than the free-market rate. But this would be equivalent almost to full legalisation; after going this far we might as well take the final step.

Particular legalisation

Now consider particular legalisation; suppose we legalise marijuana but not heroin. Marijuana users can get all they need at affordable prices; according to the theory of legalisation this eliminates the marijuana problem (later we shall question this assertion, but for the moment we accept its validity). But what do the heroin addicts do? The legal and ready availability of one drug does not prevent people from becoming or remaining addicted to an another one; otherwise there would be no heroin problem today, because everyone would get drunk instead. The legalisation of marijuana will not stop people taking heroin either. So what do the criminal drug dealers do? They abandon the marijuana trade and concentrate their drug-pushing efforts on the remaining illegal drugs, including heroin. The drug problem persists. Probably it gets worse; assuming that it is the soft drugs, or the ones deemed least dangerous, that are legalised, the black market must now deal almost exclusively in the hard drugs, or the ones deemed most dangerous.

Suppose the scope of legalisation is extended further, to other previously-controlled substances. The drug pushers move on again. Even when all the current crop of drugs has been legalised and their illegal market has evaporated, they will not meekly surrender. Instead they will turn to the creators of designer drugs for new and more alluring products; engineered with enhanced addictivity, these will induce powerful highs of novel and more varied kinds, begetting further generations of addicts.

A more effective variant of particular legalisation might be one that permits the sale of the less potent forms of the principal drugs, while banning the more potent forms that create the most serious problems. Thus we might permit opium, but not heroin; coca leaves but not cocaine; marijuana but not cannabis resin; peyote and magic mushrooms but not LSD. The idea here is that since anyone who wants the effects of any of the major drug groups — narcotics, euphorics, hallucinogens, etc. — could obtain an appropriate low-cost preparation legally, there would be little demand for illegal and highly-expensive alternatives. However, this is unlikely to offer a complete solution; addicts of the more potent drugs like heroin or crack are seldom satisfied with the weaker highs of less potent preparations. Moreover, this will not prevent drug traffickers moving on to greener pastures, unless relatively harmless versions of each new drug can be placed on the market the moment they come into fashion — an improbable scenario.

On balance it would appear that neither partial nor particular legalisation — still less, decriminalisation — can be expected to prove effective. At best, such measures may provide a stopgap, or mitigate some of the ill effects of the growing problem. If we decide to go this radical route, full legalisation would seem to be essential for ultimate success. Particular legalisation of a single drug family might reasonably be employed as an experimental test of the social and economic effects of legalisation; but it is unlikely to find a useful role in long-term policy, except perhaps in the case of alcohol, tobacco and possibly marijuana.

Chapter 15. The Question Of Minors

Age of consent

Even those persons who are most addicted to individual freedom are almost always prepared to accept that the protection of young children may sometimes take precedence, or at least that it is not always appropriate to allow such children the full range of adult privileges. It takes time to learn responsibility. Thus, even in libertarian circles, there is little objection to the principle of additional constraints on minors, such as the imposition of an "age of consent" for various activities. If a child is as yet too young or too untutored to give informed consent, it cannot reasonably be held responsible for the unfortunate effects of doing drugs, or drinking, or having sex, or voting, or crossing the road. Surely not even the most extreme anarchist would condemn a father as a tyrant for forcibly preventing his toddler from toddling into the path of an oncoming bus?

Yet as we have just seen, there are grave difficulties in attempting to restrict access to drugs only to those above a certain age; it may well make matters worse. There seems to be no entirely satisfactory answer. For what are the alternatives? To permit unrestricted legal access, thereby placing all supervisory responsibility onto frequently irresponsible parents, may leave many children inadequately protected. Yet to deny legitimate access to adults, merely because children may inadvertently be harmed, is even more unjust.

Enforcement of age restrictions

Current practice is to regulate sales of alcohol and tobacco in such a way as to deny ready access to young persons. The specific age-limits and the details of the regulations vary. How does this work out? Not very well. Young people today smoke and drink almost as much as adults, even if it is illegal. Many of them actually smoke and drink because it's illegal.

We often hear politicians and pressure groups calling for a crackdown on retailers. This is unreasonable. It can be hard enough telling a fourteen-year-old from a man in his twenties, let alone a tall fifteen-year-old from a short sixteen-year-old, so it's quite unrealistic to suppose that a harried shopkeeper can infallibly spot the difference. I know I couldn't. Either we discriminate against young-looking grown-ups or in favour of grown-up-looking youngsters. This dilemma could be avoided only by a totalitarian policy of identity cards.

Even if youngsters could be stopped from buying booze in the pubs and shops, there's no way of preventing adults (or youngsters just over the age limit) from passing it on to them. Unscrupulous persons would undoubtedly take advantage of the situation to turn an illicit profit.

That underage drinking is a bad thing is rarely disputed (though perhaps we ought only to deprecate underage drinking to excess) but whether there is much mileage in banning it is another matter. It should be clear that, whatever the original intentions, existing licensing laws have proved signal failures; they do not prevent, or even seriously impede, underage drinking. Children as young as ten or eleven have little difficulty in getting hold of alcohol. One does not have to approve of underage drinking to believe that these laws serve no useful purpose and should be abolished.

Abolition of age restrictions

If the drinking age were merely lowered, say to thirteen or fourteen, the problem would simply be shifted down a peg. Shopkeepers and publicans would face the same old difficulties; and ever younger children would think it clever to imbibe. All the arguments against partial legalisation apply. But what would happen if the drinking age were lowered all the way to zero? What would happen if there were no restrictions on the purchase of alcohol by minors?

Probably not a lot. After all, most young people who want to drink are drinkers already. Admittedly, in the immediate term demand would go up, with the previously underage taking advantage of their new freedom. But once the novelty had worn off consumption would be more likely to go down at least a little. For the most part, teenagers drink because it's the grown-up thing to do — it must be grown-up, or why aren't children allowed to do it? Once disabused of that notion, they might decide that since alcohol actually tastes rather horrid they'd prefer a soft drink instead. They might even ask for milk!

But will alcohol always be an "acquired taste"? The latest bugbear of the temperance lobby is "alcopop", which is certainly more attractive to children than beer or wine: but don't panic, it won't make that much difference; underage drinkers have been mixing vodka and orange juice for years.

One promising possibility is that if children can be introduced to alcohol by degrees, they may be less prone to excessive drinking — to drunkenness and alcoholism — when they are grown up.

None of this addresses the issue of excise duties — of whether alcohol prices should be artificially raised by taxation to reduce consumption overall — only whether the laws for children should be the same as the laws for adults; my conclusion here is that they should be the same, whether for alcohol, tobacco or any other drugs. Either ban them for all, or allow them for all. A halfway house will fall down. We should not attempt to protect our children by invoking laws that cannot be enforced; misplaced sentimentality must not be permitted to confound the rule of law.

Chapter 16. Tougher Sentencing Is Not Enough

Putting dealers behind bars

If legalisation will not solve the drug problem (and we have seen that partial and particular legalisation, which is about as far as political reality will stretch at the moment, certainly will not), what about getting tough on the drug traffickers instead? We're not talking about an all-out war on drugs here, just tougher sentencing. Let's put more of the drug dealers behind bars — and for longer.

Is this practicable? Certainly it is. It would also be politically popular — something that cannot be said of the radical alternative of legalisation. But would it work? Unfortunately not. Oh, it wouldn't be completely ineffective — it would deter some criminals — but it wouldn't solve the problem. Let's find out why.

Rational criminals

Imagine that you're a burglar. You expect to get caught and convicted say once out of every sixty burglaries, and get sent to prison for say five years; that's a month a burglary. If the average burglary nets you more than a month's honest work you make a profit. So you keep committing crimes. Now suppose the penalty is increased; either the sentences are twice as steep or the police catch you twice as often. Now your burglary no longer pays; you get say six week's money for two months inside. You pack it in and go straight. Only a few of your mates can still make a living on the higher tariff — only the most skilful burglars remain in business. Of course, real criminals aren't so rational and economically sophisticated, but the same principle applies: increase the effective penalty and you reduce the attractiveness of crime; fewer crimes will then be committed.

Thus with most crimes, as we increase the expected penalty, the crime rate falls rapidly. But with drugs, increasing the penalty merely increases the costs of doing business, raising street prices accordingly. If street prices rise, addicts have to commit even more crimes to support their habit; roughly speaking, this will tend to increase the number of these crimes by about as much as the long-term reduction in the number of addicts that results from the higher price (we'll look into this more later). In other words, things stay more-or-less the same; in the short term they actually get worse.

Even the rise in price may be temporary. If costs go up an alternative to raising prices is to do more business; in such circumstances legitimate companies run advertising campaigns or engage in predatory price-cutting. Drug traffickers may do the same; they're in business just as much as butchers or bakers or candlestick makers.

The cost of crime to criminals

At this point it may be helpful to get a feel for how much current sentencing policy adds to the costs of doing business in drugs or committing crime. The answer is: not very much. Very roughly, crime costs us honest citizens around £10 to £20 billion a year in the UK, not including expenditures on the police, courts and prison services, nor the harm done to the users of illicit drugs. To the dealers, the drug trade is probably worth about £5 billion a year. Prison sentences probably impose a perceived equivalent cost of around £20,000 a year on the average felon, so for a prison population of 50,000 the total effective penalty comes to about £1 billion a year; we might double that to £2 billion a year to take account of other forms of penalty, such as fines or the recovery of stolen loot. The cost to the drug trade is maybe £1 billion a year.

From this admittedly crude estimate it is apparent that criminals typically pay only 10% to 20% of the cost of their crimes. Punishment is light, so crime is rampant. If instead criminals were penalised to the full measure of their crimes, that is, if average sentences were increased five or ten fold, we might expect crime rates to fall to only 1% to 4% of their present values. However, such dramatic changes are not at all likely in today's political climate.

The immediate burden of the law thus accounts for possibly 20% of the street price of drugs at the present time. So where does the rest of the price come from? Can it all be profit, operating costs and penalties overseas? It seems unlikely; there's a discrepancy here which I confess I do not fully understand. Still, even if we doubled sentences across the board the price would only rise by about 20% — or not at all if 20% more addicts can be found to make up for the extra cost. Since drug abuse is growing at something like 10% to 20% a year this gives us no more than one or two years' grace; and since existing addicts would have to commit more crimes to pay the higher costs it probably doesn't even give us that much. Even to begin to get to grips with the problem we'd need to multiply sentences ten or twenty fold — and that's not yet on the cards.

Improving conviction rates

Rather than increase the actual sentences handed down by the courts, we might find it jurisprudentially more effective, and politically less controversial, to concentrate on improving our capture and conviction rates. Although in theory a rational career criminal should be indifferent between a 50% chance of a one-year sentence and a 25% chance of a two-year sentence, in practice criminals are less-than-rational optimists; they don't believe it can happen to them. Increasing the probability of punishment can have a disproportionately large effect on the perceived penalty. By the same token, a punishment that is unlikely to be inflicted has comparatively little deterrent effect, however severe the maximum penalty may be.

In most countries suffering from rising crime, the problem is not so much leniency of sentencing as infrequency of punishment; most crimes go unsolved or even unreported; most offenders go uncaught, at least until they have committed a large number of offences; most defendants go free, or get away with probation or suspended sentences; and most prisoners get paroled. The United Kingdom is no exception. The challenge is therefore not so much to increase the severity of available sentences, as to ensure that a far larger proportion of offences lead to the offenders being sentenced, and serving out their full sentences in prison.

Although a great deal along these lines could undoubtedly be accomplished by a determined administration, it must be understood that this would run counter to all the allegedly liberal trends of twentieth century politics and jurisprudence. Today there are few real incentives to improved performance. Indeed, such incentives as do exist are often perverse. The police, whom we might expect to spearhead such a drive, cannot avoid the realisation that more crime means a bigger budget, more manpower, and greater political clout. For judges and lawyers, of course, it means more money. Politicians too find crime a convenient peg on which to hang their careers.

Profits that rise with penalties

However, even if we succeed in bringing most offenders to justice, this will not of itself solve the drug problem. The profits of drug trafficking are so huge that even the near certainty of conviction would be insufficient to deter all traffickers, or drive organised crime out of the business. The total number of drug dealers would probably go down, at least for a time, and the street price of drugs would probably go up; but although the total profits of the drug trade might fall, the profit on individual deals would soar even higher; plenty of people would still be willing to take the risk. The higher stakes could also be expected to lead to higher levels of violence among both traffickers and users.

The difficulty here is that there is no specific sentence severe enough and certain enough to make the illicit drug trade unprofitable. There is no such sentence, bar one, because the higher the price, the higher the rewards; any increased penalty is matched by a similar increase in incentive. The exception, of course, is the death penalty (though in a later chapter we shall examine a method of linking penalty to rewards in such a way that no net profit can be achieved and a death penalty need not always be imposed). No gain, however great, can compensate a self-centred businessman for the ineluctability of his imminent demise. Drug pushers don't want to die.

The death penalty

So why doesn't the death penalty seem to work? Singapore, Malaysia, Burma, Iran — they've all tried it, and they all have a major drug problem still. The answer's simple. It's not enough just to have the death penalty on the books, or to put on a few show trials and a few public executions; death must be the regular and all-but-inescapable penalty for the crimes it is meant to halt.

Why are there 25,000 murders a year in the United States, even though the death penalty has been reintroduced in many states? Because there are only about a dozen judicial executions a year. If you commit a murder, the risk of being executed is only 1 in 2000. How many potential murderers will that deter? Practically none. But hang fifty percent of all killers and the murder rate will plummet. Since the subject of this treatise is the drug problem, not crime in general, I won't pursue this topic further here. The key point is that the same thing applies to drug dealing. Only the near certainty of execution will have the desired deterrent effect; the number of executions in the countries named has been far too few to be effective.

Lack of political will

As a matter of practical politics, we should note that at present, even if it were possible to sentence drug traffickers to death (and this would certainly qualify as tougher sentencing!) it is unlikely that anywhere near enough of them would actually be executed to bring the drug problem under control. The problems that attach to the death penalty for murder in America would also apply to the death penalty for drug trafficking.

To put the magnitude of the sentencing problem into perspective: nobody knows exactly how many people are criminally involved in the drug trade, but in Britain alone the figure must be somewhere in the tens of thousands. That's not including the users. We're not ready to kill them all; are we even ready to gaol them for life?

Short of the change of political will that would make an all-out war on drugs possible, there is no obvious way in which tougher sentencing could solve the drug problem. In some ways, it would even make it worse.

Chapter 17. Drug Addiction Is Not A Freely Chosen Life Style

The right to live one's own life

It is often claimed that all drugs should be legalised as a matter of principle, because every individual has a fundamental right to live his own life the way he wants, so long as he does not interfere with the similar rights of other people. Subject to that proviso, he has the right to decide the disposition of his own property. It's his body; so he has the right to fill it with whatever drugs he chooses, however stupid that may be; and nobody has any right to stop him or interfere with his freely chosen lifestyle.

This is the position commonly held by libertarians, classical liberals and many liberal democrats. If we believe in liberty we must accept the strength of this position; we do not have the right to interfere with any individual's freedom of choice, merely because we disapprove of the nature of that choice. If people choose to take drugs, it's nobody's business but their own.

Or is it? We have already seen that drug use can often harm other people too; it is our business to protect these other people. If banning drugs were the only way we could protect them and their liberties, it would not be improper. However, this is not the argument here. We have previously noted that a combination of taxes, mandatory insurance and court action may be capable of forcing the drug user to pay for any damage he causes. The rights of others thereby having been protected, we have no further right to thwart the user's own free choice.

Do drug users choose?

We have to conclude that if drug users really do choose to take drugs, if drug use really is their freely chosen lifestyle, then we must allow them this free choice and move to legalise all drugs.

But it's not so. Drug addiction is not a freely chosen lifestyle.

Consider this point. Ask yourself whether anyone actually ever sat down and said, "I know that if I take this drug it will make me feel bad more than it makes me feel good. I know it will addict me. I know I will be unable to give it up. I know I will become dependent. I know that the craving will haunt me all the days of my life. I know that those days themselves will be miserably shortened. Yet I freely chose to become an addict. I chose to become a slave to this drug. I chose misery and degradation. I chose sickness and anguish and poverty. Leave me be; by mine own will I destroy myself."

Come on! Nobody ever said that. Nobody would say that. Not unless they were utterly insane and quite incapable of rational choice.

Let's be clear on this matter. We don't hear people saying things like this before they start taking drugs. Afterwards, of course, as active drug users, it is commonplace for them to attempt to rationalise their actions in just such a way. At least, they usually claim that they're not actually addicted; they can give it up at any time; they can take it or leave it; they use drugs only because they like the feeling. Drivel! They're lying — to us and to the world and most especially to themselves.

The blunder that leads to addiction

In reality, people seldom if ever genuinely choose to become drug addicts, or even drug users. What happens is usually something more like this: in a moment of weakness they allow themselves to be persuaded by their with-it friends to try out some recreational drug; in the recollection of the euphoria induced by the drug and the approbation of their peers they repeat the experiment, suppressing any thought of consequence; all too