Jack Marshall has proclaimed yesterday “Remember What Drugs Cost Society Day” in honor of actor and comedian John Belushi, who died of a drug overdose in 1982. It’s worthwhile to remember the dead, and it’s important not to forget that recreational drug use can lead to tragedies. Had Jack left it at that, I wouldn’t have any objection, but Jack can’t leave it at that.

The District of Columbia is poised to completely legalize pot, which will be the most ringing of government endorsements of societally destructive personal conduct, in a malfunctioning culture that should not be placed at further risk.

I find it amazing that Jack thinks that by making something no longer a crime, the government is giving it a ringing endorsement, as if there is no middle ground for conduct that is undesirable but nevertheless tolerated in a free society. One of the most vivid descriptions of the banal evil of totalitarianism is that “everything that is not forbidden is compulsory.” Endorsement is not truly compulsion, but in conflating legalization with endorsement, Jack is nevertheless seeing the world in an oddly totalitarian frame.

One of the errors in Jack’s reasoning is to think that the path from ethics to policy is as simple as “behavior X is bad, therefore we should make behavior X a crime,” without giving due consideration to the costs of doing so. Those costs can be especially high when it’s not just behavior X that is criminalized, but a superset of behavior X and a bunch of other behaviors Y and Z that are thought to be somehow related to behavior X.

John Belushi died of an overdose of heroin and cocaine, but the anti-drug laws don’t just prohibit giving someone an overdose of those drugs. They make it a crime even to use these drugs even in safe quantities. In fact, the mere sale and possession of these drugs is prohibited. And Jack is arguing that Belushi’s heroin and cocaine use is somehow relevant to marijuana law, even though marijuana is a completely different kind of drug. We’ve even gone so far as to criminalize certain cash transactions because they might be used to hide money that might have come from selling illegal drugs. And we allow police to violently invade people’s homes when they are suspected of possessing both drugs and toilets down which to flush those drugs. The people on this page are dead because we’ve followed a policy of outlawing drugs without considering all the consequences.

It also makes me furious that a talent like [John Belushi] gave himself so little time to entertain us, because he killed himself with an insatiable appetite for illegal drugs.

While it’s tragic that John Belushi died, it seems odd to lament the loss of being entertained by him in a post advocating continued drug criminalization. John Belushi wouldn’t have had much time to entertain us if he’d been in prison on drug charges. And let’s be honest, most of the rest of the writers and cast of Saturday Night Live would have been right there with him in the cell block. I’m guessing getting raped in the showers would have killed their sense of humor.

(Yes, if drug cops had thrown John Belushi in prison, he might have lived. But John Belushi is an exception. Most drug users don’t die from it. Most don’t become addicted. How many of them are you willing to imprison against their will to stop a guy like John Belushi from killing himself? I’d have trouble justifying any answer other than zero.)

Jack seems to argue that Belushi owed us some sort of duty of entertainment, and that to ensure that people like him continue to entertain us, we need to be able to lock them in a cage for using drugs. This is kind of a creepy claim on some other person. I’d be willing to dismiss it as just my imagination, except that he also takes a similarly paternal interest in black people:

This overwhelmingly black, poor, educationally-challenged and struggling population needs competent, trustworthy leadership and an injection of values. It is a community, after all, that idolized the late Marion Barry, a mayor who smoked crack on the job, and never apologized for it. It’s not surprising that the adults in the District would tell the young African-Americans that it’s cool to spend their your money to get stupid, to avoid clear thought rather than practice it.

Whereas Jack would rather put the District of Columbia’s young African-Americans in prison, because there’s no way that a five-year stretch in a cage will teach them bad values, impair the quality of their education, or break up families, right?

This isn’t just paternalism, this is the perpetual false argument that we need to punish people “for their own good,” that we ought to punish people for doing things we consider unwise, that some people just can’t handle freedom. It’s no wonder that Jack has trouble understanding why some black people see similarities between the modern incarceration state and slavery. Southern slave owners would have said that Africans are too simple and child-like, that they needed the slave owners to take care of them and see to it that they were good Christians. Drug warriors say that we have to imprison black people so they won’t do drugs. Every oppressive system has an excuse for why some people have to suffer.

“Of all tyrannies, a tyranny sincerely exercised for the good
of its victim may be the most oppressive. It may be better to live
under robber barons than under omnipotent moral busybodies.
The robber baron’s cruelty may sometimes sleep, his cupidity may
at some point be satiated, but those who torment us for our own good
will torment us without end for they do so with the approval
of their own conscience.”

— C. S. Lewis, “God in the Dock” (1948)

For the record, I think C.S. Lewis is wrong about the robber barons. They’re worse, because they don’t have consciences to trouble them, and cannot be encouraged by reason to change their minds, because that would be to oppose their own interests.

But that doesn’t let the moral busybodies off the hook, because it turns out you don’t have to hate people to cause them a lot of harm. The well-meaning can do quite a lot of damage with the best of intentions.

A few days ago, over at Crimlaw, Ken Lammers, whom I admire, had a few things to say about the idea of legalizing drugs. Ken starts by quoting Pope Francis, whom I admire somewhat less. (Hey, what can I say? I was raised a Lutheran, and the First Rule of Lutheran Club is the Catholics are wrong.) When it comes to drugs, the Pope is (no surprise) an old-school anti-drug conservative:

Let me state this in the clearest terms possible: the problem of drug use is not solved with drugs!

No, but that’s not really the point of legalization.

Drug addiction is an evil, and with evil there can be no yielding or compromise.

It appears that His Holiness hasn’t quite passed the word to the rest of the team. The Catholic Church, to its credit, runs rather a lot of addiction rehab facilities, and they take a different view. One of the first addiction recovery services I found, Catholic Charities, Diocese Trenton, has this to say about addiction: “No matter which kind of addiction, it is important to recognize that addiction has nothing to do with one’s morality or strength of character.”

In fact, the overwhelming sentiment toward addicts by the people who treat them is one of compassion. For the Pope to imply that they are evil goes against the basic principles of addiction treatment, including the addiction recovery services offered by his own church.

But perhaps I misunderstand. Perhaps the Pope is distinguishing between the addict and his or her addiction. Perhaps the latter is evil, and the former is only its victim. Hate the sin but love the sinner and all that. Fair enough. But under those terms, those of us who favor legalization are also trying to help the sinner.

To think that harm can be reduced by permitting drug addicts to use narcotics in no way resolves the problem. Attempts, however limited, to legalize so-called “recreational drugs”, are not only highly questionable from a legislative standpoint, but they fail to produce the desired effects.

If the Pope believes that, then the Pope has a limited understanding of the desired effects of drug legalization. If all currently illegal drugs were legalized tomorrow, I wouldn’t use any of them. I want drugs legalized because I want the police to stop sending armed SWAT teams to raid homes and shoot dogs. I want police to stop shackling people and hauling them off to be locked in cages for years. I don’t want legalization because I want drugs. I want legalization because I want the police to stop killing innocent pastors and setting babies on fire. That would be a “desired effect.”

Substitute drugs are not an adequate therapy but rather a veiled means of surrendering to the phenomenon.

I don’t know enough about addiction therapy to say whether methadone and other substitutes are an effective treatment for drug addictions. But I’m pretty sure the Pope’s plan to lock drug users in cages is not therapy either.

Here I would reaffirm what I have stated on another occasion: No to every type of drug use. It is as simple as that. No to any kind of drug use. But to say this “no”, one has to say “yes” to life, “yes” to love, “yes” to others, “yes” to education, “yes” to greater job opportunities. If we say “yes” to all these things, there will be no room for illicit drugs, for alcohol abuse, for other forms of addiction.

On this I personally agree with the Pope. I’ve said “no” to illegal drugs all my life, and I plan to continue to do so. I rarely even drink booze, and that’s legal. Where we differ is that I don’t want to force my lifestyle on other people.

Ken Lammers has some commentary of his own:

…I find this to be a distillation of my personal beliefs about drugs. Legalization is unlikely to do the user much good. It will just switch the dealer from some guy on a corner to some guy behind a 7-11 counter.

Ken apparently doesn’t see any contradiction between those last two sentences. Buying drugs of uncertain origin, purity, and composition from a guy whose real name you don’t know is a dangerous way to get high. A drug user would be much safer buying a carefully manufactured product from a storefront backed by a corporation that wants to preserve the value of its brand and which can be hit with a multimillion dollar class-action lawsuit if the product is defective. I’m guessing that will do drug users a lot of good.

Also, the guy behind the counter at 7-Eleven isn’t going to wrestle him to the ground, throw the cuffs on, and haul him off to jail. That’s also good.

And I doubt that any cocaine producing Columbian cartel could ever match the predatory nature and capabilities of Big Pharma. After all, the Medellin cartel can’t run ads during the super bowl or deliver its product to every single grocery store, pharmacy, and convenience store in America – Proctor & Gamble (pepto bismo) and Bayer (aspirin) already do.

Here we come to a more profound difference between my views and Ken’s (or the Pope’s). I think that having digestion aids and pain medication conveniently available just a few minutes away is one of the advantages of our modern civilization. The Walgreens down the block stocks thousands of items — canned soup, milk, batteries, shampoo, condoms, light bulbs, toys, memory cards, makeup, candy — and it’s open 24 hours, so I can get what I want, when I want it. I think making high-quality recreational drugs available on the same basis is a good thing. It’s certainly better than having the manufacture and distribution of recreational drugs controlled entirely by criminals.

Anyone who believes addiction will decline in such an atmosphere is either naive or choosing to turn a blind eye to reality.

One distinction that seems not to be recognized by the Pope, and maybe Ken Lammers, is that drug use is not the same as drug addiction. People can use drugs without becoming addicted or ruining their lives, and there are far more casual drug users than addicts, even for relatively scary drugs like meth and heroin. When it comes to a less dangerous drug like marijuana, millions of people have proven that safe use is possible. Plenty of marijuana smokers have gone on to have normal, successful lives, including the current President of the United States. And his predecessor. And the one before that.

The risk of arrest and prison is part of the cost that the drug user pays when deciding to consume illegal drugs, so legalizing drugs is the economic equivalent of lowering the price. In addition, everyone in the supply chain incurs a risk of arrest and prison just for handling the drugs, and they all demand compensation for the risk, which results in a high price for the final consumer. So legalizing drugs will also reduce the actual price charged to consumers. Economics 101 tells us that lowering the price will increase the consumption, so I fully expect drug use to go up if drugs are legalized.

Whether drug abuse or addiction will also go up is more complex question. If some percentage of drug users are destined to become drug addicts, then increasing the number of users will increase the number of addicts, assuming that the new users are just as likely as the original users to develop addiction problems.

On the other hand, industrialized production and distribution will reduce impurities and variations in quality, reducing health complications and making overdoses less likely. And I think that increased social acceptance will make it less likely that drug users will be excluded from their communities, less likely that they will have trouble finding jobs, and more likely that they will be able to get help when they need it, especially since they can ask for help without fear of being arrested. Even for those who are addicted, the low cost of recreational drugs will reduce the financial burden of addiction. Finally, legalized drugs will directly benefit both casual users and addicts by eliminating the risk of arrest and imprisonment, and the reduction in enforcement efforts is a benefit in itself — no more late night raids, no more innocent grandmothers getting shot, no more puppycide.

I believe that legalizing drugs will probably increase drug consumption, but I think it will also reduce the harm caused by drugs, including the harm caused by law enforcement agencies and the justice system. That’s why we sometimes call it harm reduction. I suppose it is a “compromise,” but it’s not a compromise with evil, it’s a compromise with reality.

The Pope, on the other hand, seems to be engaged in magical thinking: He apparently believes that if we say “No to every type of drug use” then people won’t abuse drugs. He doesn’t seem to realize that his version of saying no necessitates the creation of a massive government program of spying on citizens, violently assaulting them, and throwing them in cages.

Say, did you hear about the new Islamic terrorist cell? So far, they’ve killed a Christian pastor and they’ve set a baby on fire. And they’re operating right here in the United States!

Actually, I lied. It wasn’t an Islamic terror cell, it was something called the Mountain Judicial Circuit Narcotics Criminal Investigation and Suppression Team, which is led by Sheriff Joey Terrell from Habersham County, Georgia. They killed Pastor Jonathan Ayers back in 2009 because they thought he was involved in drugs, and they decided to violently confront him before they bothered to confirm the facts. Their more recent victim, the baby, was burned just a few days ago:

A 19-month-old boy critically injured when a police device was tossed into his bed has a 50 percent chance of surviving, his parents said today. But a northeast Georgia sheriff defends the officers’ actions, calling it a tragic accident.

Sheriff Terrell refuses to admit there’s a problem:

“The last thing you want is law enforcement to injure someone innocent,” Habersham County Sheriff Joey Terrell told The Atlanta Journal-Constitution. “There was no malicious act performed. It was a terrible accident that was never supposed to happen.”

Well what the fuck do you think is going to happen if you throw a flash-bang grenade through a doorway when you can’t see where it’s going to land? Those things may not be as deadly as fragmentation grenades, but they still explode with enough heat to start a fire. Plenty of people have been injured by flash-bang grenades.

Terrell further explains:

“Our team captain asked the normal questions – is there children?” Terrell said. “If there’s children involved in a house, we do not use any kind of distraction devices in those houses. We just don’t take the chance on it.”

But there were no indications of children in the home.

“According to the confidential informant, there were no children,” Terrell said. “When they made the buy, they didn’t see any children or any evidence of children there, so we proceeded with our standard operation.”

Even when they don’t directly injure people, flash-bang grenades still stun and disorient people, which means they are an indiscriminate assault against anybody in the room, including people who present no threat to the entry team. In many cases, the raid teams are serving search warrants, which means there may not even be proof yet that anyone in the house committed a crime. So I’m not particularly impressed by their concern for children, since they seem to have no qualms about harming innocent adults.

While Terrell said the sheriff’s office takes ownership of its decision to enter the home, that was necessitated by the man who was selling drugs there.

No. No it wasn’t. Nobody forced the task force to try to arrest that guy, in that place, on that day.

“The person I blame in this whole thing is the person selling the drugs,” Terrell said. “Wanis Thonetheva, that’s the person I blame in all this. They are no better than a domestic terrorist, because they don’t care about families – they didn’t care about the family, the children living in that household – to be selling dope out of it, to be selling methamphetamine out of it. All they care about is making money.

“Look what they made me do.” It’s the argument of the psychopath. Every schoolyard bully uses it. Every wife beater. Every guy who knifes someone over an argument in a bar. Every cop who butts in where he doesn’t belong and hurts someone.

“They don’t care about what it does to families,” Terrell said. “It’s domestic terrorism and I think we should treat them as such. I don’t know where we can go with that, but that’s my feelings on it. It just makes me so angry! I get so mad that they don’t care about what they do, they don’t care about the families or the people they’re selling to.”

As Jacob Sullum points out, it wasn’t a drug dealer who put a baby in the hospital with critical burns. That was Sheriff Terrell and his drug warrior task force. So ask yourself, who are the real terrorists here?

About a decade ago, when the U.S. military began fighting in Afghanistan, we started hearing stories of the violence the Taliban would commit in the name of their religious beliefs. I remember in particular that they were attacking men for shaving their beards (it’s still going on in the region). It’s one thing to have sincere religious beliefs, but it takes a special kind of derangement to want to use violence to force others to conform to them.

We’re seeing another example with the Boko Haram terrorists in Nigeria who have kidnapped hundreds of schoolgirls because its members have religious objections to the education of females, and they think they have the right to violently prevent other people from doing things that conflict with their beliefs.

Given that drug use is a consensual act and that the drug laws are more than a little arbitrary in what they allow or prohibit, Sheriff Terrell’s task force is violently enforcing conformity with what are essentially religious beliefs about the evils of drugs. They are the American version of Boko Haram and the Taliban.

(Hat tip: Radley Balko.)

Last month at Hercules and the Umpire, federal judge Richard Kopf posted an explanation of why he believes that (at least at the federal level) drug crimes are not victimless. Matt Brown at Tempe Criminal Defense has raised some objections, as has Scott Greenfield at Simple Justice. Given that a federal judge and a couple of experienced criminal defense lawyers have been discussing the issue, I’m not sure I have anything intelligent to add…but then what’s a blog for?

Let me address a few of the judge’s points:

When you distribute a substance that you know is poison to another person that is a violent act. Period. End of story.

I recently purchased a deadly concoction that goes by a variety of street names. It consists of a mixture of toluene, methyl tert-butyl ether, benzene and trimethylbenzene, and a little bit of naphthalene. This substance is toxic, carcinogenic, and flammable. When burnt, it gives off a poisonous gas. My dealer goes by the name “BP,” and he hangs out here:

If that’s not bad enough, I frequent Home Depot and Pep Boys, and the chemicals for sale in just one of either of those stores could probably kill a thousand people. Then there’s Walgreens, where my pharmacist sells many chemicals that are quite dangerous. Heck, there’s danger even out in the aisles: An over-the-counter bottle of 500 Extra Strength Tylenol capsules has enough acetaminophen to kill at least a dozen people.

Ethyl alcohol can cause mental impairment, erratic behavior, vomiting, coma, and death, but we’re allowed to buy it, flavored or unflavored, from thousands of stores in nearly unlimited quantities. In some states, the government itself will sell you ethyl alcohol for human consumption.

Then there’s nicotine, a chemical that occurs naturally in plants, probably to protect them from consumption by animals. In concentrated form, it is more toxic than cocaine or methamphetamine, and it has been used as an agricultural pesticide. It is also a legal recreational drug in tobacco smoking products, even though long-term inhalation of tobacco tar causes serious lung problems, including cancer. The military sells tobacco products to soldiers tax-free, and use of tobacco is a right of prisoners of war under the Geneva Convention.

On the other hand, many illegal drugs are safer than you might think. Crystal meth is basically the same chemical as Adderall — except for the methyl group that gives meth its name — and in clinical trials both drugs produce similar effects. Ecstasy’s effects on serotonin levels are similar to dozens of prescription medications, and it takes a large amount to produce a fatal overdose. Even heroin is pretty safe as long as you don’t overdose, although withdrawal can be harsh. And marijuana is famously safe, with a total number of overdoses ranging between zero and one, depending who you ask.

What creates the public health risk of drug abuse is not just the chemicals themselves, but our relationship to them. Consequently, when it comes to evaluating the public health risk of certain chemicals, it’s not the most poisonous ones that present the greatest threat, because people don’t use those recreationally: No one injects gasoline or bleach into their veins to get high. The drugs that are likely to be abused are the ones that are actually pretty safe.

And so our society has made choices about which drugs to allow and which ones to criminalize, but because they are all mostly safe, our choices have been guided more by culture than by toxicology, which has made them somewhat arbitrary. Heroin used to be legal, but now it’s illegal. Alcohol was legal for thousands of years, then we made it illegal here, and then we made it legal again, although it remains illegal in some countries. Cocaine was legal for a while, then became illegal, although it still has medical uses. Tobacco was legal when Europeans first encountered it here, then it was made illegal in some states, then it became legal again, and now it seems to be drifting back toward illegality.

(My favorite drug, caffeine, has relatively few side effects, and has only ever been illegal in a few countries.)

Many of the problems we associate with illegal drugs have arisen because they are illegal. The drugs are manufactured at high concentration so they can be smuggled more easily. They’re supposed to be diluted as they get closer to the end users, but sometimes higher concentrations get through, leading to overdoses. Even when diluted properly, users tend to minimize the opportunities to get caught using the drugs, which means taking the drugs at longer intervals, but in much larger doses. Injectable drugs are not kept sterile, and they are adulterated with dangerous additives. Users of needle drugs have trouble getting clean needles, so they reuse them and share them.

We saw these kinds of problems with alcohol during prohibition. Hard liquor was easier to smuggle than beer and wine. Quality sucked, and improper distillation could accidentally produce products dangerously high in methanol. Things returned to normal when alcohol was re-legalized.

Moreover, the connection between guns and drugs is beyond dispute. Not every purveyor of drugs uses or carries a gun, but the world where they operate organizes around one thing and one thing only, guns.

In response, I’d like to point out that the connection between guns and Richard Kopf’s profession is also beyond dispute. As a federal judge, he spends every working day inside a secure compound, surrounded by more armed men and women than any drug dealer in the United States.

Not only do these armed employees of the state provide security for Kopf and his fellow judges, but they are ultimately responsible for carrying out his will. Convicted defendants may submit peaceably, but they do not do so willingly. No one would agree to spend a decade in a cage at Judge Kopf’s word without a small army to put them inside and another to keep them there. In fact, the only reason people even show up in Judge Kopf’s court for judgement is because men with guns have brought them there in chains, often after first assaulting them in their homes and dragging them out. (Less violent surrenders may be arranged, but always under the threat of violence.)

Of course, Judge Kopf plays a role in a system that is intended to improve social welfare by fairly applying laws created by democratically elected legislators, within the bounds described in a written constitution. For all its problems, it’s still a good idea, whether it’s avenging murders and catching thieves, or resolving torts and enforcing contracts.

Unfortunately, few of these services are available to people whose means of earning a living has been declared illegal. Drug dealers can’t call 911 when somebody rips them off. Nor, out of fear of getting caught, can they operate out of storefronts with security cameras, or deposit their daily income safely in a bank. So they need to provide their own security,  and that means men with guns, just as it does for Judge Kopf.

Of course, many of the people who sell drugs illegally are also willing to break other laws, and as with any business, there’s competition, so some of them are willing to use violence to drive out their competitors. If selling these drugs was legal, their competitors could go to the police for protection — maybe ask the city council for more protection for honest, hard working business people. Better yet, they could settle their differences with competitors in the courts rather than in the streets. But as long as drug dealing remains illegal, that’s not an option. Their only choices are to fight violence with violence or go out of business. Which is why drug dealing is so immersed in violence.

Well, illegal drug dealing is immersed in violence. Walgreens and CVS compete with price cuts, convenient locations, 24-hour service, web sites, and coupon deals. Liquor dealers stopped shooting at each other when prohibition ended, and now compete with better flavor, more convenient packaging, clever commercials, and busty spokesmodels. Medical marijuana stores compete with diverse inventories, friendly customer service, and pleasant shopping environments. Only criminals deal with competitors using violence (rent-seeking protected industries excepted).

(Law and economics professor David Friedman argues that one of the reasons organized crime exists is to act as a sort of court system for criminals. Crime bosses resolve conflicts between underlings and decide when it’s permissible to use violence, e.g when it’s okay to hit a made guy. This presumably reduces strife and increases profitability for everyone involved.)

I’m not saying that every defendant brought before Judge Kopf is just a businessman looking to make a living. In some sense, quite the opposite: Making a drug illegal drives out honest business people and gives violent thugs an advantage. This does not excuse them from their violent acts, but neither does it excuse the legislature from creating the environment which allows them to thrive.

I don’t know much about Cook County Board President Toni Preckwinkle, but as reported by Monique Garcia and Hal Dardick in the Chicago Tribune, here’s a sentiment that you won’t hear from too many politicians:

CHAMPAIGN — Cook County Board President Toni Preckwinkle on Tuesday said former President Ronald Reagan deserves “a special place in hell” for his role in the war on drugs, but later she regretted what she called her “inflammatory” remark.

I think that’s a little more partisan than necessary — it’s not as if the Democrats tried to roll back any much of the war on drugs — but Preckwinkle sounds like she’s got the right idea:

Preckwinkle was defending the recent move by the city of Chicago to decriminalize possession of small amounts of marijuana by allowing police to write tickets, saying out-of-whack drug laws unfairly lead to more minorities behind bars.

Downstate Republican state Rep. Chapin Rose of Mahomet questioned whether such an approach includes drug treatment for those who are ticketed. Preckwinkle said no, arguing that drug treatment should be part of the health care system, not criminal justice.

That seems right. Usually when authorities talk about treating drug use as a health issue, they mean that instead of forcing drug users into a cage, they’re going to force them into drug treatment. But forcing people into drug treatment doesn’t work very well, and by using force they’re actually doing the opposite of what they’re saying: They’re turning a health issue into another way to punish people.

“Ronald Reagan wasn’t the first or the last, but he was certainly the most prominent at the very beginning,” Preckwinkle told the Tribune in a phone interview.

…

“Drug policy in this country has been in the wrong direction for 30 years,” she said. “I think that’s something they should acknowledge. If I had it to do over again, I certainly wouldn’t say anything quite so inflammatory. But my position basically remains the same.”

I’ve heard that a lot of people in local governments have expressed that sentiment in private but are afraid to say anything in public. It’s good to hear a sittling politician say it out loud.