February/march 1993 | Volume 44, Issue 1
The better title for this article, let me suggest at the outset, would be (“Drug Prohibition: Con.” Most opponents of “drug legalization” assume that it would involve making cocaine and heroin available the way alcohol and tobacco are today. But most legalization supporters favor nothing of the kind] in fact, we disagree widely as to which drugs should be legalized, how they should be controlled, and what the consequences are likely to be. Where drug-policy reformers do agree is in our critique of the drug-prohibition system that has evolved in the United States—a system, we contend, that has proved ineffective, costly, counterproductive, and immoral.
Efforts to reverse drug prohibition face formidable obstacles. Americans have grown accustomed to the status quo. Alcohol prohibition was overturned before most citizens had forgotten what a legal alcohol policy was like, but who today can recall a time before drug prohibition? Moreover, the United States has succeeded in promoting its drug-prohibition system throughout the world. Opponents of alcohol prohibition could look to successful foreign alcohol-control systems, in Canada and much of Europe, but contemporary drug anti-prohibitionists must look further—to history.
The principal evidence, not surprisingly, is Prohibition. The dry years offer many useful analogies, but their most important lesson is the need to distinguish between the harms that stem from drugs and the harms that arise from outlawing them. The Americans who voted in 1933 to repeal Prohibition differed greatly in their reasons for overturning the system. They almost all agreed, however, that the evils of alcohol consumption had been surpassed by those of trying to surpress it.
Some pointed to Al Capone and rising crime, violence, and corruption; others to the overflowing courts, jails, and prisons, the labeling of tens of millions of Americans as criminals and the consequent broadening disrespect for the law, the dangerous expansions of federal police powers and encroachments on individual liberties, the hundreds of thousands of Americans blinded, paralyzed, and killed by poisonous moonshine and industrial alcohol, and the increasing government expenditure devoted to enforcing the Prohibition laws and the billions in forgone tax revenues. Supporters of Prohibition blamed the consumers, and some went so far as to argue that those who violated the laws deserved whatever ills befell them. But by 1933 most Americans blamed Prohibition.
If there is a single message that contemporary anti-prohibitionists seek to drive home, it is that drug prohibition is responsible for much of what Americans identify today as the “drug problem.” It is not merely a matter of the direct costs—twenty billion dollars spent this year on arresting, prosecuting, and incarcerating drug-law violators. Choked courts and prisons, an incarceration rate higher than that of any other nation in the world, tax dollars diverted from education and health care, law-enforcement resources diverted from investigating everything from auto theft to savings-and-loan scams—all these are just a few of the costs our current prohibition imposes.
Consider also Capone’s successors—the drug kingpins of Asia, Latin America, and the United States. Consider as well all the murders and assaults perpetrated by young drug dealers not just against one another but against police, witnesses, and bystanders. Consider the tremendous economic and social incentives generated by the illegality of the drug market—temptations so overwhelming that even “good kids” cannot resist them. Consider the violent drug dealers becoming the heroes of boys and young men, from Harlem to Medellin. And consider tens of millions of Americans being labeled criminals for doing nothing more than smoking a marijuana cigarette. In all these respects the consequences of drug prohibition imitate—and often exceed—those of alcohol prohibition.
Prohibition reminds us, too, of the health costs of drug prohibition. Sixty years ago some fifty thousand Americans were paralyzed after consuming an adulterated Jamaica ginger extract known as “jake.” Today we have marijuana made more dangerous by government-sprayed paraquat and the chemicals added by drug dealers, heroin adulterated with poisonous powders, and assorted pills and capsules containing everything from antihistamines to strychnine. Indeed, virtually every illicit drug purchased at the retail level contains adulterants, at least some of which are far more dangerous than the drug itself. And restrictions on the sale of drug paraphernalia has, by encouraging intravenous drug addicts to share their equipment, severely handicapped efforts to stem the transmission of AIDS. As during Prohibition, many Americans view these ills as necessary and even desirable, but others, like their forebears sixty years ago, reject as perverse a system that degrades and destroys the very people it was designed to protect.
Prohibition’s lessons extend in other directions as well. The current revisionist twist on that “Great Experiment” now claims that “Prohibition worked,” by reducing alcohol consumption and alcohol-related ills ranging from cirrhosis to public drunkenness and employee absenteeism. There is some truth to this claim. But in fact, the most dramatic decline in American alcohol consumption occurred not between 1920 and 1933, while the Eighteenth Amendment was in effect, but rather between 1916 and 1922. During those years the temperance movement was highly active and successful in publicizing the dangers of alcohol. The First World War’s spirit of self-sacrifice extended to temperance as a means of grain conservation, and there arose, as the historian David Kyvig puts it, “an atmosphere of hostility toward all things German, not the least of which was beer.” In short, a great variety of factors coalesced in this brief time to substantially reduce alcohol consumption and its ills.
The very evidence on which pro-prohibition historians rely provides further proof of the importance of factors other than prohibition laws. One of these historians, John Burnham, has noted that the admission rate for alcohol psychoses to New York hospitals shrank from 10 percent between 1909 and 1912 to 1.9 percent in 1920—a decline that occurred largely before national prohibition and in a state that had not enacted its own prohibition law.
At best one can argue that Prohibition was most effective in its first years, when temperance norms remained strong and illicit sources of production had yet to be firmly established. By all accounts, alcohol consumption rose after those first years—despite increased resources devoted to enforcement. The pre-Prohibition decline in consumption, like the recent decline in cigarette consumption, had less to do with laws than with changing norms and the imposition of non-criminal-justice measures.
Perhaps the most telling indictment of Prohibition is provided by the British experience with alcohol control during a similar period. In the United States the death rate from cirrhosis of the liver dropped from as high as 15 per 100,000 population between 1910 and 1914 to 7 during the twenties only to climb back to pre-1910 levels by the 1960s, while in Britain the death rate from cirrhosis dropped from 10 in 1914 to 5 in 1920 and then gradually declined to a low of 2 in the 1940s before rising by a mere point by 1963. Other indicators of alcohol consumption and misuse dropped by similar magnitudes, even though the United Kingdom never enacted prohibition. Instead wartime Britain restricted the amount of alcohol available, taxed it, and drastically reduced the hours of sale. At war’s end the government dropped restrictions on quantity but made taxes even higher and set hours of sale at only half the pre-war norm.
Britain thus not only reduced the negative consequences of alcohol consumption more effectively than did the United States, but did so in a manner that raised substantial government revenues. The British experience— as well as Australia’s and most of continental Europe’s —strongly suggests not only that our Prohibition was unsuccessful but that more effective post-Repeal controls might have prevented the return to high consumption levels.
But no matter how powerful the analogies between alcohol prohibition and contemporary drug prohibition, most Americans still balk at drawing the parallels. Alcohol, they insist, is fundamentally different from everything else. They are right, of course, insofar as their claims rest not on health or scientific grounds but are limited to political and cultural arguments. By most measures, alcohol is more dangerous to human health than any of the drugs now prohibited by law. No drug is as associated with violence in American culture—and even in illicit-drug-using subcultures—as is alcohol. One would be hard pressed to argue that its role in many Native American and other aboriginal communities has been any less destructive than that of illicit drugs in America’s ghettos.
The dangers of all drugs vary greatly, of course, depending not just on their pharmacological properties and how they are consumed but also on the attitudes and beliefs of their users and the settings in which they use them. Alcohol by and large plays a benign role in Jewish and Asian-American cultures but a devastating one in some Native American societies, and by the same token the impact of cocaine among Yuppies during the early 1980s was relatively benign compared with its impact a few years later in impoverished ghettos.
The culture helps determine the setting of drug use, but so do the laws. Prohibitions enhance the dangers not just of drugs but of the settings in which they are used. The relationship between prohibition and dangerous adulterations is clear. So too is its impact on the potency and forms of drugs. For instance, Prohibition caused a striking drop in the production and sale of beer, while that of hard liquor increased as bootleggers from Al Capone on down sought to maximize their profits and minimize the risks of detection. Similarly, following the Second World War, the enactment of anti-opium laws in many parts of Asia in which opium use was traditional—India, Hong Kong, Thailand, Laos, Iran—effectively suppressed the availability of opium at the cost of stimulating the creation of domestic heroin industries and substantial increases in heroin use. The same transition had occurred in the United States following Congress’s ban on opium imports in 1909. And when during the 1980s the U.S. government’s domestic drug-enforcement efforts significantly reduced the availability and raised the price of marijuana, they provided decisive incentives to producers, distributors, and consumers to switch to cocaine. In each case, prohibition forced switches from drugs that were bulky and relatively benign to drugs that were more compact, more lucrative, more potent, and more dangerous.
In the 1980s the retail purity of heroin and cocaine increased, and highly potent crack became cheaply available in American cities. At the same time, the average potency of most legal psychoactive substances declined: Americans began switching from hard liquor to beer and wine, from high-tar-and-nicotine to lower-tar-and-nicotine cigarettes, and even from caffeinated to decaffeinated coffee and soda. The relationship between prohibition and drug potency was, if not indisputable, still readily apparent.
In turn-of-the-century America, opium, morphine, heroin, cocaine, and marijuana were subject to few restrictions. Popular tonics such as Vin Mariani and Coca-Cola and its competitors were laced with cocaine, and hundreds of medicines—Mrs. Winslow’s Soothing Syrup may have been the most famous—contained psychoactive drugs. Millions, perhaps tens of millions of Americans, took opiates and cocaine. David Courtwright estimates that during the 1890s as many as one-third of a million Americans were opiate addicts, but most of them were ordinary people who would today be described as occasional users.
Careful analysis of that era—when the very drugs that we most fear were widely and cheaply available throughout the country—provides a telling antidote to our nightmare legalization scenarios. For one thing, despite the virtual absence of any controls on availability, the proportion of Americans addicted to opiates was only two or three times greater than today. For another, the typical addict was not a young black ghetto resident but a middle-aged white Southern woman or a West Coast Chinese immigrant. The violence, death, disease, and crime that we today associate with drug use barely existed, and many medical authorities regarded opiate addiction as far less destructive than alcoholism (some doctors even prescribed the former as treatment for the latter). Many opiate addicts, perhaps most, managed to lead relatively normal lives and kept their addictions secret even from close friends and relatives. That they were able to do so was largely a function of the legal status of their drug use.
But even more reassuring is the fact that the major causes of opiate addiction then simply do not exist now. Late-nineteenth-century Americans became addicts principally at the hands of physicians who lacked modern medicines and were unaware of the addictive potential of the drugs they prescribed. Doctors in the 1860s and 1870s saw morphine injections as a virtual panacea, and many Americans turned to opiates to alleviate their aches and pains without going through doctors at all. But as medicine advanced, the levels of both doctor- and self-induced addiction declined markedly.
In 1906 the first Federal Pure Food and Drug Act required over-the-counter drug producers to disclose whether their products contained any opiates, cocaine, cannabis, alcohol, or other psychoactive ingredients. Sales of patent medicines containing opiates and cocaine decreased significantly thereafter—in good part because fewer Americans were interested in purchasing products that they now knew to contain those drugs.
Consider the lesson here. Ethical debates aside, the principal objection to all drug legalization proposals is that they invite higher levels of drug use and misuse by making drugs not just legal but more available and less expensive. Yet the late-nineteenth-century experience suggests the opposite: that in a legal market most consumers will prefer lower-potency coca and opiate products to the far more powerful concoctions that have virtually monopolized the market under prohibition. This reminds us that opiate addiction per se was not necessarily a serious problem so long as addicts had ready access to modestly priced opiates of reliable quality—indeed, that the opiate addicts of late-nineteenth-century America differed in no significant respects from the cigarette-addicted consumers of today. And it reassures us that the principal cause of addiction to opiates was not the desire to get high but rather ignorance—ignorance of their addictive qualities, ignorance of the alternative analgesics, and ignorance of what exactly patent medicines contained. The antidote to addiction in late-nineteenth-century America, the historical record shows, consisted primarily of education and regulation—not prohibition, drug wars, and jail.
Why, then, was drug prohibition instituted? And why did it quickly evolve into a fierce and highly punitive set of policies rather than follow the more modest and humane path pursued by the British? In part, the passage of the federal Harrison Narcotic Act, in 1914, and of state and local bans before and after that, reflected a belated response to the recognition that people could easily become addicted to opiates and cocaine. But it also was closely intertwined with the increasingly vigorous efforts of doctors and pharmacists to professionalize their disciplines and to monopolize the public’s access to medicinal drugs. Most of all, though, the institution of drug prohibition reflected the changing nature of the opiate- and cocaine-using population. By 1914 the number of middle-class Americans blithely consuming narcotics had fallen sharply. At the same time, however, opiate and cocaine use had become increasingly popular among the lower classes and racial minorities. The total number of consumers did not approach that of earlier decades, but where popular opinion had once shied from the notion of criminalizing the habits of elderly white women, few such inhibitions impeded it where urban gamblers, prostitutes, and delinquents were concerned.
The first anti-opium laws were passed in California in the 187Os and directed at the Chinese immigrants and their opium dens, in which, it was feared, young white women were being seduced. A generation later reports of rising cocaine use among young black men in the South—who were said to rape white women while under the influence- prompted similar legislation. During the 1930s marijuana prohibitions were directed in good part at Mexican and Chicano workers who had lost their jobs in the Depression. And fifty years later draconian penalties were imposed for the possession of tiny amounts of crack cocaine—a drug associated principally with young Latino and African-Americans.
But more than racist fears was at work during the early years of drug prohibition. In the aftermath of World War I, many Americans, stunned by the triumph of Bolshevism in Russia and fearful of domestic subversion, turned their backs on the liberalizing reforms of the preceding era. In such an atmosphere the very notion of tolerating drug use or maintaining addicts in the clinics that had arisen after 1914 struck most citizens as both immoral and unpatriotic. In 1919 the mayor of New York created the Committee on Public Safety to investigate two ostensibly related problems: revolutionary bombings and heroin use among youth. And in Washington that same year, the Supreme Court effectively foreclosed any possibility of a more humane policy toward drug addicts when it held, in Webb et al. v. U.S. , that doctors could not legally prescribe maintenance supplies of narcotics to addicts.
But perhaps most important, the imposition of drug prohibition cannot be understood without recalling that it occurred almost simultaneously with the advent of alcohol prohibition. Contemporary Americans tend to regard Prohibition as a strange quirk in American history—and drug prohibition as entirely natural and beneficial. Yet the prohibition against alcohol, like that against other drugs, was motivated in no small part by its association with feared and despised ethnic minorities, especially the masses of Eastern and Southern European immigrants.
Why was Prohibition repealed after just thirteen years while drug prohibition has lasted for more than seventy-five? Look at whom each disadvantaged. Alcohol prohibition struck directly at tens of millions of Americans of all ages, including many of society’s most powerful members. Drug prohibition threatened far fewer Americans, and they had relatively little influence in the halls of power. Only the prohibition of marijuana, which some sixty million Americans have violated since 1965, has come close to approximating the Prohibition experience, but marijuana smokers consist mostly of young and relatively powerless Americans. In the final analysis alcohol prohibition was repealed, and opiate, cocaine, and marijuana prohibition retained, not because scientists had concluded that alcohol was the least dangerous of the various psychoactive drugs but because of the prejudices and preferences of most Americans.
There was, of course, one other important reason why Prohibition was repealed when it was. With the country four years into the Depression, Prohibition increasingly appeared not just foolish but costly. Fewer and fewer Americans were keen on paying the rising costs of enforcing its laws, and more and more recalled the substantial tax revenues that the legal alcohol business had generated. The potential analogy to the current recession is unfortunate but apt. During the late 1980s the cost of building and maintaining prisons emerged as the fastest-growing item in many state budgets, while other costs of the war on drugs also rose dramatically. One cannot help wondering how much longer Americans will be eager to foot the bills for all this.
Throughout history the legal and moral status of psychoactive drugs has kept changing. During the seventeenth century the sale and consumption of tobacco were punished by as much as death in much of Europe, Russia, China, and Japan. For centuries many of the same Muslim domains that forbade the sale and consumption of alcohol simultaneously tolerated and even regulated the sale of opium and cannabis.
Drug-related moralities have always been malleable, and their evolution can in no way be described as moral progress. Just as our moral perceptions of particular drugs have changed in the past, so will they in the future, and people will continue to circumvent the legal and moral barriers that remain. My confidence in this prediction stems from one other lesson of civilized human history. From the dawn of time humans have nearly universally shown a desire to alter their states of consciousness with psychoactive substances, and it is this fact that gives the lie to the declared objective of creating a “drug-free society” in the United States.
Another thing common to all societies, as the social theorist Thomas Szasz argued some years ago, is that they require scapegoats to embody their fears and take blame for whatever ails them. Today the role of bogeyman is applied to drug producers, dealers, and users. Just as anti-Communist propagandists once feared Moscow far beyond its actual influence and appeal, so today anti-drug proselytizers indict marijuana, cocaine, heroin, and assorted hallucinogens far beyond their actual psychoactive effects and psychological appeal. Never mind that the vast majority of Americans have expressed—in one public-opinion poll after another—little interest in trying these substances, even if they were legal, and never mind that most of those who have tried them have suffered few, if any, ill effects. The evidence of history and of science is drowned out by today’s bogeymen. No rhetoric is too harsh, no penalty too severe.
Lest I be accused of exaggerating, consider the following. On June 27, 1991, the Supreme Court upheld, by a vote of five to four, a Michigan statute that imposed a mandatory sentence of life without possibility of parole for anyone convicted of possession of more than 650 grams (about 1.5 pounds) of cocaine. In other words, an activity that was entirely legal at the turn of the century, and that poses a danger to society roughly comparable to that posed by the sale of alcohol and tobacco, is today treated the same as first-degree murder.
The cumulative result of our prohibitionist war is that roughly 20 to 25 percent of the more than one million Americans now incarcerated in federal and state prisons and local jails, and almost half of those in federal penitentiaries, are serving time for having engaged in an activity that their great-grandparents could have pursued entirely legally.
Examples of less striking, but sometimes more deadly, penalties also abound. In many states anyone convicted of possession of a single marijuana joint can have his or her driver’s license revoked for six months and be required to participate in a drug-treatment program. In many states anyone caught cultivating a marijuana plant may find all his or her property forfeited to the local police department. And in all but a few cities needle-exchange programs to reduce the transmission of AIDS among drug addicts have been rejected because they would “send the wrong message”—as if the more moral message is that such addicts are better off contracting the deadly virus and spreading it.
Precedents for each of these penalties scarcely exist in American history. The restoration of criminal forfeiture of property—rejected by the Founding Fathers because of its association with the evils of English rule—could not have found its way back into American law but for the popular desire to give substance to the rhetorical war on drugs.
Of course, changes in current policy that make legally available to adult Americans many of the now prohibited psychoactive substances are bound to entail a litany of administrative problems and certain other risks.
During the last years of the Volstead Act, the Rockefeller Foundation commissioned a study by the leading police scholar in the United States, Raymond Fosdick, to evaluate the various alternatives to Prohibition. Its analyses and recommendations ultimately played an important role in constructing post-Prohibition regulatory policies. A comparable study is currently under way at Princeton University, where the Smart Family Foundation has funded a working group of scholars from diverse disciplines to evaluate and recommend alternative drug-control policies. Its report will be completed late in 1993.
History holds one final lesson for those who cannot imagine any future beyond drug prohibition. Until well into the 1920s most Americans regarded Prohibition as a permanent fact of life. As late as 1930 Sen. Morris Shepard of Texas, who had coauthored the Prohibition Amendment, confidently asserted: “There is as much chance of repealing the Eighteenth Amendment as there is for a humming-bird to fly to the planet Mars with the Washington Monument tied to its tail.”
History reminds us that things can and do change, that what seems inconceivable today can seem entirely normal, and even inevitable, a few years hence. So it was with Prohibition, and so it is—and will be—both with drug prohibition and the ever-changing nature of drug use in America.