Law and Policy: Drug Legalization Debate

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Law and Policy: Drug Legalization Debate

A key policy question concerning drugs is whether it should be legal to produce and use a drug. The answer can vary by drug. In the United States, anyone can legally consume the caffeine in soda or chocolate, but no one can legally consume heroin. Alcohol and cigarettes can be consumed legally by adults but not by children. Drugs such as Ritalin and Valium are legal only with a prescription. Cocaine cannot legally be used as a recreational drug, but it can be used as a medicine. (It is useful for certain types of eye and nose surgery.)

The drug legalization debate concerns whether the legal status of one or more drugs should be changed. It would be possible for some- one to argue that a substance that is now legal should be prohibited, or made illegal. In fact, some think tobacco should be prohibited since it kills so many people (about 400,000 per year). However, the drug legalization debate most often concerns whether one or more of the currently illegal drugs should be made legal, at least for certain uses.

It is important to understand that arguing for legalization is not the same as simply arguing against aspects of current U.S. drug policy. Many informed observers are sharply critical of U.S. drug policy, often arguing that drug sentences are too long or that government does not spend enough money on drug treatment programs. Yet most do not think that legalizing drugs is a good idea. Of those who do, the vast majority argue only for changing the legal status of marijuana, not of all drugs. Merely reducing the punishment for violators of drug laws is not the same as making the drug legal for sale or use. One can favor a wide range of reforms, including shorter sentences, without favoring legalization.

The Special Case of Medical Marijuana

The case of medical marijuana is especially tricky. Cocaine is already available for medical use, yet few would say that the United States has legalized cocaine. So clearly there are ways of making marijuana available for medical use without legalizing it. However, medical exceptions to a general law prohibiting marijuana could be written in such a way that the effect would be to legalize the drug. For example, if the decision as to whether marijuana is medically necessary is, by law, left to the users themselves, then anyone who wanted to use marijuana for whatever purpose could simply claim to have a medical condition.

Some recent medical marijuana laws have been written quite broadly to apply to a large number of cases in which marijuana might be medically useful. One reason for this is that supporters of medical-marijuana use claim that marijuana can eliminate or reduce a wide range of illnesses and conditions that do not go away. In contrast, cocaine has very specific medical benefits: it numbs pain and slows bleeding for certain types of operations. Since no one wants to have surgery every day, there is little risk of a cocaine user faking a medical condition in order to obtain the drug.

A second reason medical marijuana laws have been written broadly is that some supporters want to use the medical marijuana issue to promote greater availability of marijuana for nonmedical uses. They realize that many people who oppose legalizing marijuana for recreational drug use would not deny a terminally ill cancer patient the chance to use a drug that may help relieve side effects of chemotherapy. In this way, medical marijuana could be used as a wedge to help open the door for marijuana use by the general public.

The Argument over Principle

The medical use of currently prohibited drugs is only one issue in the debate over legalization. The larger debate can be separated into two distinct types of arguments. The first is an argument over principle.

Some argue for or against legalization as a matter of principle. For example, civil libertarians may argue that people should be free to consume whatever they want, even if it hurts them, as long as their use does not hurt others. On the other side, some people argue that it is morally wrong to use certain drugs and that an appropriate role for government is to prohibit immoral behavior even if no other people are being hurt. (Consider, for instance, that the government has laws against public nudity and prostitution.)

The Argument over Tradeoffs

The second argument looks at the harmful and beneficial consequences of either legalizing or prohibiting drugs. The basic tradeoff concerns the amount of drug use and the amount of harm that each unit of use, or each episode of use, will have on society. In contrast to legalization, prohibition sharply reduces drug use. But prohibition of drugs also increases the severity and cost of drug use. The most obvious way that prohibition increases harm is by creating a black market . Much of the violence related to drugs stems from its sale in black markets, not directly from its use.

The high price of drugs is an essential issue. Drugs such as cocaine and heroin are just agricultural products like flour or coffee, yet prohibition makes them very expensive. High prices hold down use. It was once mistakenly believed that drug users are unaffected by the prices of the drugs they use, meaning that they would use them no matter what the cost. But there is now clear evidence that use goes down when prices rise and vice versa. However, the high prices make drug use expensive. A heavy user can easily spend $10,000 a year on cocaine or heroin. While well-to-do users can afford this, poorer users may commit crimes to pay for their drug use.

One way to summarize this tradeoff is that "You can choose to have a problem with drug use (legalization), or you can choose to have a problem with drug markets (prohibition), but you cannot choose not to have a drug problem." Advocates of legalization emphasize that we could easily eliminate all of the problems associated with drug markets just by legalizing the use of drugs. What they for- get is that drug use would almost certainly increase. The accompanying figure illustrates what might happen under the two opposing positions: prohibition of drugs (current status) or legalization of drugs. For example, you can see that under a policy of prohibition, the price of drugs remains high, while it drops under a policy of legalization.

Harm per unit of useHighLow
Total Harm??

Some legalization advocates suggest that we could eliminate the black markets without reducing prices by legalizing the drug and then imposing very high taxes on it. But this suggestion is probably unrealistic. High tax rates encourage smuggling and black markets for the purpose of avoiding the taxes. When the Canadian province of Ontario tried to sharply raise taxes on cigarettes, black markets quickly grew to dominate cigarette sales, and the tax had to be repealed. Tax rates sufficient to keep legalized drugs at their current prices would need to be even higher. Most likely, many people would ignore or avoid these taxes.

Most people who favor legalizing drugs say they should be legal only for adults. But this is also unrealistic. Legalizing use by adults almost certainly makes a drug more available to minors. This is be- cause every adult is a potential supplier, whether intentionally (for ex- ample, adults buying alcohol for minors) or unintentionally (for example, minors stealing cigarettes from adults).

Measuring the Total Harm of Legalization

How would legalization affect the total harm related to drugs? The answer depends on (1) what value is placed on the problems related to drug use and the problems related to prohibition and black markets, and (2) how much legalization would increase use. Those who favor legalization tend to believe that a drug's legal status has little impact on its use. They also tend to emphasize three problems of prohibition: (1) problems created by black markets (stereotyped as drug dealers shooting people in battles over turf), (2) problems created by drug enforcement (such as enforcement tactics that may unfairly target minorities), and (3) problems created by the damage per episode of drug use (such as the increasing spread of AIDS by needle sharing because drug laws make drug paraphernalia , such as needles, illegal). Those who favor prohibition tend to believe that prohibition greatly decreases use (tobacco and alcohol are used far more than cocaine or heroin) and that many problems stem directly from drug use (such as the damage addiction can do to families), not from the drug's illegal status.

Acute health riskNoneNoneHighMinimalHighHigh
Chronic health riskNoneHugeHighSomeMinimalSome
Use affects health of othersNoYesFetusesPossiblyNoFetuses
Problems caused by withdrawalMinimalUnpleasantPhysical riskMinimalPhysical riskExtremely unpleasant
Intoxication leads to accidentsNoNoYesSomeModerateUnclear
Intoxication leads to violenceNoNoYesNoNoSome
Likelihood of addiction given use [as observed in the U.S. in last 30 years]MinimalHighModerateModerateHighHigh
Addiction disruptive to daily functioningNoNoYesSomewhatYesYes

Unfortunately, the debate about the consequences of legalization is clouded with false arguments. For example, those who favor legalization point to statistics showing that illegal drugs such as cocaine and heroin kill only thousands of people per year, whereas alcohol and cigarettes kill hundreds of thousands. What they neglect to point out is that far more people use cigarettes and alcohol, so the death rates per user are not so different. Furthermore, the death statistics for illegal drugs are limited to direct, severe effects of drug use (such as from overdose), while the cigarette and alcohol figures include in- direct effects (such as deaths caused by drunk drivers) and effects of use over a lifetime (such as from lung cancer).

How Dangerous are Different Drugs?

Different drugs have different effects. Some drugs, like phenycyclidine (PCP), can trigger violent outbursts. Others, like heroin, sedate the user. Cigarettes are highly addictive, but they are not intoxicating . Heroin can be deadly if a person takes an overdose, but use of the drug itself leads to almost no long-term health dam- age. Heroin addicts are usually in bad health because they are poor, spend money on heroin rather than on food or shelter, and inject with dirty needles. But the heroin itself does not damage organs the way alcohol abuse destroys the liver or smoking causes lung disease. Because a substance can be very threatening in one way but not in others, it is impossible to rank substances from the most to the least dangerous.

Issues for Each Type of Drug

The drug legalization debate is complicated, with each substance requiring a separate approach. For purposes of the drug legalization debate, there are three basic groups of illegal substances: (1) cocaine, heroin, and methamphetamines, (2) marijuana, and (3) all other drugs.

Cocaine, Heroin, and Methamphetamine. These drugs have different chemical makeups, but they are alike in several ways: (1) they are expensive, (2) they are subject to strict drug-law enforcement, (3) they can dominate the lives of an abuser, and (4) they have large, established black markets. If these drugs were legalized, use would mostly likely rise a great deal and a number of problems would follow. These drugs are very simple to produce but sell for incredibly high prices because they are illegal. Those who manufacture, sell, or use these drugs are subject to severe penalties. Cocaine, heroin, and methamphetamine are also the source of most of the corruption, violence, and crime associated with drug markets, so legalization would bring many benefits. However, most observers believe that legalizing these drugs would be a good example of jumping "out of the frying pan and into the fire." At a minimum, legalizing these substances is a high-stakes gamble that would be difficult to reverse. There are other, safer alternatives to try first (such as changing the laws that affect these drugs but not eliminating them).

Marijuana. Marijuana is quite different. Prohibition makes marijuana more expensive than it otherwise would be, but a daily habit is still only modestly more expensive than a two-pack-a-day cigarette habit. So, if it became legal, marijuana use would be less likely to increase greatly than cocaine use. In addition, daily marijuana use is not any- where near as damaging as is daily use of other drugs, such as cocaine. Even if use of marijuana did jump after legalization, the outcome would be less disastrous in terms of the health and daily functioning of users. On the other hand, the benefits of legalizing marijuana are far smaller than the benefits of legalizing cocaine, heroin, and methamphetamines. This is because marijuana markets are less violent and marijuana users generally do not commit crimes to support their habit.

There is no general agreement as to whether legalizing marijuana is wise. Some say yes. Most say no. What is clear, though, is that the risks, uncertainties, and potential benefits are all much smaller when considering legalizing marijuana than when considering legalizing cocaine, heroin, and methamphetamines.

Other Drugs. This third category is so big and varied that it is difficult to make general statements about it. The category includes drugs that can be used in sexual assault (such as Rohypnol, which can make a victim unconscious and unable to stop or remember an attacker) and drugs used not for their "high" but to enhance athletic performance (such as anabolic steroids). Two general observations are possible: (1) Prohibitions are more effective and less costly when preventing the spread of substances that are not commonly used than they are at reducing the use of an established, popular drug. (2) Changing the legal status of drugs that are now rare would have the undesirable effect of increasing availability and, hence, probably use as well.

It is hard to predict how the legalization debate will evolve. A diverse and vocal minority calls for legalization or, more commonly, consideration of legalization. The vast majority of politicians and the public firmly oppose legalization for all drugs except marijuana. One scenario might relax the current strict prohibition by adopting a harm reduction approach, which focuses on reducing the negative consequences of drug use to the users rather than reducing the amount of use—or a "public health" approach (that addresses the problem from a medical rather than a criminal justice perspective). Such strategies respond to many of the complaints about the current U.S. drug prohibition without most of the risks and problems that legalization would create.

see also See specific drugs, such as Cocaine, Heroin, and Marijuana; Drugs of Abuse; Law and Policy: Controls on Drug Trafficking; Law and Policy: Modern Enforcement, Prosecution, and Sentencing.


People are not only addicted to drugs that they buy in dark alleys at night. In Buzz: The Science and Lore of Alcohol and Caffeine (1997), author Stephen Braun looks into America's love affair with and addiction to the legal substances coffee and alcohol, what he calls the world's most widely consumed mind altering drugs.

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Law and Policy: Drug Legalization Debate

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Law and Policy: Drug Legalization Debate