Positive Liberty

History is full of ideas and practices that seem barbaric by present-day standards. Human sacrifice, witchcraft, slavery, and the treatment of women as chattel all come to mind. Professional historians, though, aren’t supposed to call anything barbaric. Yet it’s not because we’re moral relativists. Quite the contrary: We’re positively obsessed with our own moral judgments. Just look at how opinionated academics are, and you will know that we can’t possibly be moral relativists.

The reason we avoid passing such judgments about the past is simple. It isn’t that we somehow approve of witchcraft trials or slavery; we despise these like everyone else, and anyone who claims that an academic can’t condemn the Holocaust is making a strawman argument. But merely calling something awful does not do much to explain a bad idea’s past appeal, nor can an epithet explain how a given “barbaric” practice actually operated in the times and worldviews that it did. Calling the past barbaric is often the truth, but it’s always an analytical dead end.

What about calling a current practice barbaric? Now there is the very engine of modern political change! To call something in today’s world barbaric is a profound statement about past, present and future, and it takes a lot of guts to make that claim.

Imagine I had to pick one instance where our conventional wisdom is wrong, and about which the future will think us superstitious or worse. My readers probably know that I would choose the way that we now treat same-sex love. I firmly believe that in the future, love and marriage will know no gender lines. So far, so good.

Now suppose that I had to pick another idea about which our present conventional wisdom is also entirely wrong. With only a little more hesitation, I would choose the war on drugs. I believe that the future will consider us utterly ignorant in the way we now treat the so-called crime of drug use. I believe that as little as one hundred years from now, intelligent people will have put the criminalization of drug use up on that same dusty intellectual shelf where we now place apartheid.

I believe that the future will have a far more nuanced view of drugs, treating the recreational and/or spiritual use of cannabis, psilocybin mushrooms, and peyote as a generally safe and often quite valid form of life enrichment. The future may or may not say the same about all non-addictive recreational drugs in general, but these three at least have a long history of safe human use.

I strongly suspect that the future will treat the use of addictive drugs like cocaine and heroin as a grave health problem but not as a crime. The future will look at individuals who spent time in jail for marijuana as victims of a justice system gone awry; it will look at imprisoning a heroin addict much as we now would look at imprisoning someone for alcohol abuse: These people have done something dangerous and unhealthy, but what they really need is a cure, not a supplementary punishment.

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The economic, moral, and legal case for ending the war on drugs is remarkably strong. Organizations and individuals as diverse as the CATO Institute, the Green Party, former governors Jesse Ventura of Minnesota and Gary Johnson of New Mexico, and former Baltimore mayor Kurt Schmoke, have all argued that marijuana ought to be legal and that the entire drug war ought to be radically reconsidered. In 1972, Richard Nixon assembled the Shafer Commission, a panel of drug experts that concluded against prohibition, much to Nixon’s own surprise. His reasons for dismissing them were hardly noble to say the least: He speculated that marijuana was part of a plot by Jews, communists, homosexuals, and Catholics to overthrow the United States. Paranoid? Yes, but it worked.

Nixon began the wholesale demonization of marijuana that lasts to this day; with or without Nixon’s bizarre racist theories, now one can only pass for an expert on drugs by toeing the prohibitionist line. And yet no corner of the political spectrum has a monopoly on the case for legalization; indeed, the extremes tend to agree with one another while the center doesn’t budge. The call for legalization comes from the far left and the far right, from libertarians, multiculturalists, tribalists, and even Christians. I encourage you to read them, but what I want to talk about is the argument for prohibition itself, the one that everyone usually takes for granted.

It began with a panic. The United States first criminalized marijuana as a way to arrest Mexican immigrants, who were virtually the only ones using it in the early 20th century. It was said that marijuana produced a “reefer madness” that could turn people into violent, sex-crazed and irresponsible maniacs; the prohibitionists even claimed it could give people almost superhuman powers: “Under the influence of this weed they have enormous strength… it will take several men to handle one man while under ordinary circumstances one man could handle him with ease.”

Does this sound familiar? It’s virtually the same argument that has been used against every criminalized drug ever since. Take a population that people mistrust already: Mexicans, Asians, hippies, blacks, ravers, homosexuals. Find a substance that some of them like to use: marijuana, opium, LSD, crack, ecstasy, crystal meth. Associate the one with the other as much as you can. Suggest that the drug makes these dangerous people into what they are. The drug is a gateway into a degenerate lifestyle, as we can see by the examples of all of these unfortunate groups. The drug lies waiting for your children, and if you’re not careful, they will grow up to be just like the Mexicans, the Asians, the hippies…

It does not matter that these drugs’ physiological effects are as far removed from one another as aspirin and Prozac. It doesn’t matter that only some of them present serious physical dangers. It does not matter that the initial hype is almost always overblown. Remember when it was said that ecstasy caused brain damage? That, too, has been refuted, as have many myths about the dangers of drugs. But the fear is what matters most. The fear gets big media attention, while the quiet retractions go unnoticed.

The fear outlasts the science, because in every single case–in every single case–the fear of a drug, and the national moral panic that results, is based on a xenophobia. This xenophobia demands not that we seek treatment for drug problems, but that we hide those problems as far away from “normal” society as possible. Usually we do it by imprisoning those who use drugs, and anyone who calls for anything less is automatically on the side of the bad guys.

Of course, not everyone who favors drug criminalization has such prejudices. But what about the irrational fear of those who have used drugs? It seems a lot of the old anxieties have come home to roost in the war on drugs. Don’t most people agree that they are a danger to civilization in themselves? And yet drug users are far more common than we usually think.

Americans ought to know better: Over 70 million of them–nearly one in three–have used marijuana. The real effects of marijuana are the diametric opposites of the horrible properties that first led to prohibition. Marijuana almost always makes people calm, passive, and introspective. Some people say it raises the sex drive, but most say the opposite. Overdose on marijuana is physically impossible; marijuana has only scant addictive potential, certainly far less than nicotine or alcohol. The only way it makes people more Mexican is by making them crave Mexican food.

Despite all that we now know, our policies remain essentially the same as in the days of reefer madness. If anything, they are even harsher. Criminalization serves as the cover that we use to avoid answering the harder questions of how our society ought to engage with the real problems of responsible use and addiction. Rather than look for that distinction, rather than even ask whether some substances should perhaps treated differently from others, we take the easy route of putting everyone in prison.

In 2001, an estimated 723,627 people were arrested for marijuana violations in the United States. In the same year there were 246,100 prisoners in state prisons and 78,501 prisoners in federal prisons solely for nonviolent drug-related offenses. They constituted 55% of the federal prison population and 20% of the state prison population. Our prisons are operating at far beyond their designed capacity, a problem that could be solved overnight by releasing all those who do not belong there in the first place.

It’s hard to consider seriously the proposition that we are now keeping hundreds of thousands in prison for no greater crime than having a health problem. It’s even harder to think that many of them are in prison simply because they like a different kind of fun than the rest of us. We’d much prefer to think that we’ve done it for a reason: We have interrupted hundreds of thousands of lives and broken up just as many families. We have made it difficult or impossible for these people ever to become productive members of society again. We have denied them future employment and even student loans. We must have done it for a reason. But ultimately, to prevent these people from ruining their lives with drugs, we have ruined their lives–with the war on drugs.

Above all, we must consider whether the cost of the drug war is not greater than the benefits we get out of it. Is the drug war worth keeping more than three hundred thousand people in prison? Is it worth at least $31 billion a year? Is it worth the millions of law enforcement hours that could be better spent on murder, robbery, rape, or terrorism?

But surely drug addicts need to spent a short time in prison to learn the errors of their ways, no? Sadly, it doesn’t work that way. Many people think that prison will reform the people who are put there, but the reverse is actually true: Past prison sentences are often the best predictor of future prison sentences. Worse, prison seldom does anything to combat the problem of drug addiction. Slightly fewer than ten percent of prisoners in state prisons get drug treatment, and drug offenders are commonly rearrested for the same “offense.” The Sentencing Project has concluded that “The high number of drug offenders being rearrested for the same charge demonstrates that drug crimes are qualitatively different than property or violent crimes.”

They’re right: Of these three types of crime, only two are real. But there is a monstrous difficulty in admitting that the status quo has drifted into a horrible wrong. Promising efforts are indeed being made toward implementing drug treatment plans within the prison system, but then one must ask: Why do these people need prison in the first place? A far better setting for drug treatment would be at home, among family and community, rather than surrounded by criminals.

Rather than admit the mistake and correct it, by far the easiest course of action is to conclude that we still aren’t trying hard enough to win the war on drugs. And thus every so often, someone calls for a further crackdown. Getting tough is all that mainstream politicians usually want, because getting tough wins elections. It’s simple, direct, and sounds impressively masculine. It doesn’t matter that “getting tough” sometimes means taking medicine away from sick people. Toughness is what we want to hear; it makes us think that all the arrests, all the years spent in prison, all the lives wasted, and all the billions of dollars spent are going to fight a grand, glorious battle for the soul of America itself.

Many government agencies owe their existence to the war on drugs, and these groups have little or no incentive to change the status quo. The legalization of marijuana would call into question the very mentality of prohibition, and this is a step that they cannot permit. Accordingly, they have even acted to suppress information that might lead to better marijuana policies. Agencies like the DEA and the National Institute on Drug Abuse claim to be on the front lines of a vital war; they claim to be saving the American way of life itself. On the basis of these claims, they get attention, sympathy, and plenty of money to ruin hundreds of thousands of lives per year.

It’s time we admit that our resources could be far better spent.

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There was once a time when educated people believed that schizophrenia was a moral failing. The very intelligent people of the sixteenth and seventeenth centuries believed that those whom we now would call schizophrenic were really witches or possessed by demons. Often, the proper punishment was death. Now we know that these people were mentally ill, and our treatment of the mentally ill has become considerably more humane.

The same was once true of alcoholics. Many very educated people once believed that alcoholism was a moral failing, not a disease. We know better now and recognize that alcohol addiction is a physiological condition combined with a set of behaviors that can indeed be modified. Alcoholism is harmful, but treating it as a crime is more harmful still. Instead, we do all that we can to integrate alcoholics back into society.

Marijuana and other soft drugs are safe enough that their use by responsible adults should not be considered a moral failing at all. Their low potential for addiction or overdose means that they present few medical problems of any definable nature; their use should be a crime only when it endangers others. Using hard drugs is far more dangerous to oneself and others. Accordingly, the use of such highly addictive substances as heroin and cocaine ought to be discouraged in general. Still, the proper response to even the hard drugs should be medical, not criminal.

Lastly, we must consider the dealers. In the war on drugs, dealers are made out to be the ultimate fiends, but in reality they are simply meeting a demand as cheaply as possible, just like any other entrepreneur. My proposal for getting rid of them is simple: Make the hard drugs available to addicts by prescription, cheaply and safely, in the context of a program that would allow them to taper off their use if they so desired. Anyone who wanted to could get help, and at the very least they would be guaranteed a safe, clean, and standard dose every time. Even if the users didn’t want to get help, this new force in the drug market would quickly put most non-licensed dealers out of business. Because addicts are the dealers’ best customers, the result would be a small population of addicts keeping themselves on maintenance doses, while the street-corner dealers disappeared for lack of a market. Their absence would guarantee that there would not be a new generation of addicts to follow.

These policies might not solve the drug problem entirely. Ask yourselves, though: Is what we are doing now really any better?

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