Ditching Drug Prohibition: A Dissent

Continuing from my initial post, the second main argument in favor of the legalization of drugs whose consumption (or at least possession) is presently prohibited is that the harms associated with drug-taking are caused more by their illegality than by their pharmacological or other effects. Their illegality means that their production and distribution are necessarily criminal activities; while the artificial expense of obtaining supplies that results from criminalization leads consumers, particularly addicts, into criminality in order to obtain sufficient money to buy them.

These arguments are either half-true or wholly false. The considerable harms caused by a psychoactive substance with which most of us are familiar, alcohol, are certainly not caused by its illegality or by the restrictions placed upon its sale. No one ever died of alcoholic liver disease because alcohol was prohibited. The same is true of tobacco: no one ever died of lung cancer because he couldn’t buy cigarettes. Since on most calculations tobacco is one of the biggest causes of preventable disease in the world, this is not an entirely trivial matter. It is wishful thinking to suppose that harm may be done by psychoactive substances only, or principally, if they are made illegal.

More to the point, the current epidemic of opioid-associated deaths in the United States, 16,000 a year (four times more than heroin), has been caused by perfectly legal, if often careless, corrupt or irresponsible prescribing by doctors. Since the turn of the century, more than 100,000 Americans have in effect been killed by legal prescriptions (even if the prescription drugs have often been diverted from their intended use—intended by the prescribing doctor, that is).

This is important to stress, because it is sometimes alleged that deaths from heroin are caused not so much by the heroin itself as by variations in its strength that are the result of fluctuating legal pressures on producers and distributors. A sudden increase in the purity of black market heroin after a period of greater impurity may result in the deaths of heroin addicts who think they are taking the same dose as before. And it is certainly true, therefore, that heroin addicts whose drug is pure and whose dose they know can continue to inject for many years in perfect safety. But the doses of prescription opioids are also perfectly known to those who take them, but still they die in considerable numbers.

It is worth considering for a moment the origins of this epidemic of death by legal prescription. There was a general feeling in the medical profession that it was so afraid of causing addiction to analgesics that it stinted pain relief even to those who were clearly dying. From this apprehension it was a short step to believing that there were vast numbers of patients whose chronic pain was being inadequately treated. A small study showed that patients given strong analgesics in hospital or for medical reasons almost never became addicted to or abused them, so it was wrongly concluded that patients outside hospital with chronic pain (or alleged chronic pain) could similarly be treated without the development of addiction or abuse.

By an unhappy synergy that often occurs in human affairs, pharmaceutical companies began at the same time vigorously to market synthetic opioids. Doctors, whether from a genuine desire to help their patients, a desire to deal with them in the quickest way possible, a desire to please or a fear of displeasing them, or, in some cases, commercial greed, began to prescribe these drugs in ever-larger quantities. But illegality—except, perhaps, for those doctors who in effect sold prescriptions—had nothing to do with the development of the problem.

More recently, medical problems have arisen in the case of so-called “legal highs,” that is to say synthetic cannabinoids that are produced, distributed, purchased, and taken with perfect legality. (As soon as one substance is prohibited by law, chemists, mostly in laboratories in China, produce another that is similar but not identical, which remains legal until it is prohibited. This is in itself a tribute to human ingenuity, irrespective of whether it is being used to a good end.)

Ever since synthetic cannabinoids first became popular about five years ago, the hospital in which I used to work has treated every week several cases of intoxication with them. Assuming the experience of my former hospital to be more or less average for Britain, this means that tens of thousands of such cases are now being treated annually in the country as a whole. This does not in itself tell us how dangerous synthetic cannabinoids actually are, of course, because we have only a vague numerator and not a denominator. But if having to be treated in hospital (always at someone else’s expense, of course) is a harm, sometimes for serious complications such as renal failure caused by rhabdomyolysis, then these legally produced, legally distributed, legally consumed drugs, taken for their pleasurable effects, do harm on some considerable scale.

In other words, it is not true that problems with drugs arise only when or because they are prohibited.

The relationship between crime and drug prohibition is also much more complex than the legalizers would have us believe. It is certainly true that gangs quickly form that try to control drug distribution in certain areas, and that conflict between the aspirant gangs leads to violence. I once walked into the intensive care unit of my hospital to find two young men of Jamaican descent lying opposite one another, who had shot (but not killed) one another in a turf war over drugs. But here I would point out two things: first that the violence of such criminal gangs was largely confined to the subculture from which they emerged, so that other people were not much endangered by it; and second that, in my dealings with such people, I did not form the impression that, were it not for the illegality of drugs, they would otherwise be pursuing perfectly respectable careers. If my impression is correct, then the illegality of drugs might protect the rest of society from their criminality: the illegal drug trade being the occasion, but not the cause, of their violence. Rebel Without a Cause was the title of a famous book about psychopathy; without the illegality of drugs, the gangs would be criminals without a cause. But they would soon find one.

What about Prohibition?, is the natural reply. It is true that the homicide rate in the United States fell dramatically in the wake of repeal. By the 1960s, however, when alcohol was not banned, it had climbed higher than during Prohibition, and the consumption of drugs was much less prevalent than it was to become. Moreover, what is less often appreciated, the homicide rate in the United States rose faster in the 13 years before than in the 13 years during Prohibition. (In other respects, Prohibition was not as much of a failure as is often suggested: alcohol-related problems such as liver disease declined during it considerably. But no consequences by themselves can justify a policy, otherwise the amputation of thieves’ hands would be universal.) Al Capone was not a fine, upstanding citizen before Prohibition turned him into a gangster.

As for Mexico, the horrors perpetrated by the drug cartels are well-known. They make certain areas of Mexico dangerous in the extreme. They corrupt officialdom. They replace, destroy, or make difficult legitimate economic activity.

But, without wishing to denigrate Mexicans, Mexico has never been known for the honesty of its administration. Its current homicide rate, even with the drug cartels in full cry, is about a third of what it was in the 1940s, though it is 10 or 15 times higher than the current homicide rate in countries like Britain or France. Part of the decline of homicides in Mexico may be due to improvements in medical treatment. (It was once estimated that, if the resuscitation and surgical techniques used today were those used in 1960, the U.S. homicide rate would be five times higher than it is, which, if true, is alarming; it would probably mean that the potential homicidal attack rate in the United States is 50 to 100 times what it was in 1900, or even higher if adjusted for age.) But, notwithstanding the cartels, most of Mexico is safer than it was 60 or 70 years ago, before the cartels were dreamed of.

It is therefore possible—though I do not positively assert that it is or must be so—that the violence of the cartels in Mexico would attach itself to something other than drug-dealing in the event that the drugs in which they deal became items of normal commerce such as flowers or strawberries. The immensity of the profits of the illegal drug trade make it a natural magnet for criminals, it is true; but human ingenuity is without limit, including to bad ends.

So much for large-scale or organized crime. What of the pettier kind, of which I saw so much close-up in my medical career as a doctor in a prison? I will turn to this next.