The Encyclopedia of Libertarianism

Drug Prohibition

Drug prohibition refers to policies that restrict access to and criminalize the sale and possession of certain mood-altering substances, such as marijuana, cocaine, and heroin. Intoxicants have been used in most societies throughout history, and for most of history, such use has been governed by social custom, rather than legal penalty. In the 20th century, however, Western nations adopted a series of increasingly restrictive policies on the use and sale of certain drugs, restrictions that have become almost universal. Libertarians have opposed such restrictions because of their harmful effects and because they violate individual rights.

The road to prohibition began with medicalization, with both the American and British governments restricting distribution by persons other than medical professionals before banning the substances outright. In 1868, the British Parliament enacted the Pharmacy and Poisons Act, and in 1914, the United States passed the Harrison Narcotic Act. Both restricted the sale of opiates and certain other drugs by anyone other than pharmacists. By the 1920s, America’s Harrison Act, which had limited the consumption of opiates except by physician’s prescription, had become a more general prohibition on their use when the courts interpreted the act to allow prosecution of physicians who prescribed drugs to addicts.

During the same period, America introduced alcohol prohibition. In 1920, the 18th Amendment to the Constitution and its enabling legislation, the Volstead Act, banned the manufacture, transportation, and sale of beverages containing more than 0.5% alcohol. The famed evangelist Rev. Billy Sunday greeted Prohibition ecstatically: “The reign of tears is over. The slums will soon be a memory. We will turn our prisons into factories… . Men will walk upright now, women will smile and children will laugh. Hell will be forever for rent.”

The results of this “noble experiment” did not quite match the Rev. Sunday’s expectations. Violent crime skyrocketed during Prohibition, with the murder rate going up every year from the passage of the Volstead Act until its repeal in 1933, after which the rate declined steadily for 11 years. Prohibition marked the start of the organized crime problem in America. By making alcoholic beverages illegal and turning tens of millions of Americans into scofflaws, the policy handed the trade in liquor over to ruthless groups willing to break the law and settle disputes with violence. The notorious St. Valentine’s Day Massacre—a 1929 gangland slaying orchestrated by Al Capone—was merely one battle in a turf war over alcohol distribution in Chicago, Illinois.

The Volstead Act also demonstrated what one drug policy scholar has termed The Iron Law of Prohibition, which holds that the greater the efforts to disrupt the distribution of a prohibited substance, the more potent that substance becomes. Thus, Prohibition saw a significant increase in the consumption of distilled spirits, which offered “more bang for the buck” to the consumer and less chance of interdiction for the supplier. Smugglers risking jail by bringing alcohol over the Canadian border wanted to minimize that risk by transporting a more compact and potent product— whiskey rather than beer or wine. Accordingly, although prices of all alcoholic beverages increased from 1920 to 1933, the increase in the price of beer was far sharper than that of distilled spirits.

Libertarians have emphasized the parallels between the effects of alcohol prohibition, on the one hand, and of drug prohibition, on the other hand. The drug war has proved as futile as the prohibition of alcohol and for the same reasons. Every effort to restrict supply raises prices, and those higher prices serve as a signal to criminal entrepreneurs that there are enormous profits to be made in the drug trade. For every supplier put out of business, more arise in his place, some as creative as—if far more brutal than—any entrepreneur in the above-ground economy. As with alcohol prohibition, drug prohibition provides dramatic profit opportunities for violent criminal distribution networks. By driving the trade underground, the drug war has given it over to gangs that fight over market share with bullets. The price increases spurred by prohibition also contribute to crime when addicts steal to support a habit whose costs have been artificially inflated.

The Iron Law of Prohibition that shifted consumption from beer and wine to distilled spirits has operated in similar fashion with the narcotics trade. It has led to the prevalence of drugs that are more concentrated, more potent, and less safe. As the drug war intensified in the late 20th century, the bulkiest and least harmful illegal drug, marijuana, was no longer the safest risk for cross-border smuggling to the United States, causing a shift to coca leaves and opium poppies in Latin American cultivation patterns. Prohibition, by raising the price of prohibited substances, also encourages their ingestion in more concentrated forms. Instead of chewing the coca leaf—as farmers in the Andes have done for thousands of years—Westerners under prohibitionist regimes snort or smoke the refined product. Instead of smoking opium, drug users under prohibition inject its derivative, heroin—at far greater risk of disease and overdose. Because of the drug war, proscribed substances have become black market products for which dosage is difficult to determine. In addition, there is an ever-present risk of impurities and dangerous additives in street drugs. When drug users are injured or killed, a products liability lawsuit is hardly an option.

Libertarians have opposed the drug war because of the futility and perverse effects attending drug prohibition. But they also have offered a complementary, rights-based critique of drug laws. This critique proceeds from the principle of self-ownership. If a person owns his own body, the decision about what substances to ingest is ultimately his alone. Drug use is a quintessentially self-regarding act that violates no one’s rights and harms no one except, perhaps, the user. Prosecution of drug users and sellers is aggression, rhetoric about public health and the moral fiber of society notwithstanding.

Disrespect for individual rights in this area has led to the erosion of civil liberties in prohibitionist regimes. In the United States, the metaphorical “war” on drugs has increasingly taken on the aspects of a real war. Starting in the 1980s, the U.S. government passed a series of statutes encouraging the transfer of military equipment to domestic police departments and even the use of U.S. military forces on America’s borders. Increased militarization has repeatedly led to the death of innocents in door-smashing “no-knock” raids gone awry. Protections against unreasonable searches and seizures have weakened to the point that one Supreme Court Justice in 1989 could speak ruefully of an emerging “drug exception” to the Constitution. By 2001, thanks in large part to its vigorous prosecution of drug offenders, the U.S. prison population had reached a record 2 million inmates—equaling Russia’s rate of incarceration.

Despite—or perhaps because of—the drug war’s effect on civil liberties, there has been significant evolution in public attitudes toward drug legalization since the peak of prohibitionist sentiment in the 1980s and early 1990s. During that period, the American drug czar, William Bennett, could talk casually about the possibility of beheading drug dealers. In 1990, legislation that would have allowed the military to shoot down American planes suspected of carrying drugs was almost passed into law. By 2003, several American states had passed initiatives allowing the consumption of marijuana for medical purposes, such as glaucoma or as an anti-nauseant for HIV sufferers and chemotherapy patients. Notwithstanding these laws, the federal government continued to prosecute marijuana users, including some who were desperately ill.

The trend toward liberalization in Western Europe began earlier and has gone further than in the United States. Today, in most of Western Europe, possession of small amounts of narcotics for personal use is not a crime, although drug trafficking remains a serious offense. Whether liberalization will continue to spread remains to be seen, although at the turn of the 21st century, there are reasons for cautious optimism.

 

Further Readings

Duke, Stephen B., and Albert C. Gross. America’s Longest War: Rethinking Our Tragic Crusade against Drugs. Los Angeles: Tarcher Putnam, 1993.

Hamowy, Ronald. Dealing with Drugs: Consequences of Government Control. Lanham, MD: Lexington Books, 1987.

Lynch, Timothy, ed. After Prohibition: An Adult Approach to Drug Policies in the 21st Century. Washington, DC: Cato Institute, 2000.

MacCoun, Robert J., and Peter Reuter. Drug War Heresies: Learning from Other Vices, Times, and Places. Cambridge: Cambridge University Press, 2001.

Sullum, Jacob. Saying Yes: In Defense of Drug Use. New York: Tarcher Putnam, 2003.

Woodiwiss, Michael. Crimes, Crusades, and Corruption: Prohibitions in the United States, 1900–1987. London: Pinter Publishers, 1988.

Originally published .