The ideas of Justice Scalia remain at the center of constitutional discourse even after his death.
My Liberty Forum essay contended that America’s experiment with easily available opioid painkillers was an indication of what might happen if we legalized drugs completely: a shocking and intolerable increase in overdose deaths. I suggested that, instead, we might push to A) focus the punitive aspects of the War on Drugs on dealers rather than users, as we already do to a large extent; and B) work to expand access to treatment, especially medications that satisfy users’ cravings.
In reply, Jonathan Caulkins extended my argument to psychoactive drugs. And Andrew I. Cohen made a more philosophical case against continuing the War on Drugs, even if it’s focused on dealers rather than users, emphasizing the seriousness of deploying state power and writing that I have “not quite shown us why such a stark measure is justified here.” On that we can agree to disagree; the incredible rise of opioid-involved fatalities that ensued when we loosened controls on opioids shows, to me, that the state does need to be involved here. And while we can have a discussion about how to treat low-level dealers, I believe criminal sanctions and not just civil fines are certainly needed to deter high-quantity traffickers.
But I’d like to focus here mainly on the response of Jeffrey Miron, who contends that legalizing drugs would “dramatically reduce” overdoses (and has already prompted a separate response from David Murray). His points fall into three basic categories: generic arguments as to why this might be the case, claims that the experiences of other countries (and the U.S. a century or so ago) back him up, and evidence that our attempts to clamp down on opioids since 2010 have backfired. These arguments have varying degrees of merit in themselves, but none supports the claim that legalizing drugs would reduce overdoses on balance, and it’s important to flesh out why.
The generic arguments are some of the reasons that I myself supported drug legalization for most of my life. Banning drugs forces people to turn to more dangerous black-market alternatives, it might encourage drug-mixing if people can’t get enough of what they want, etc. The question isn’t whether these effects are real. Some are. The question is whether they outweigh the effect of making dangerous, addictive substances easily and cheaply available to those who want to get high.
Can we learn anything about that question from the opioid epidemic? Let’s travel back in time 20 years. I was 13 back then, so while we’re out, we’ll make a pit stop in 2007 to pick up my recent-college-grad, pro-drug-legalization self. We’ll say to him: “A drug called OxyContin just entered the market. It’s an opioid painkiller that’s chemically similar to heroin. Doctors are going to hand these out generously, and ‘pill mills’ will arise to sell them directly to the black market, too. What’s going to happen to overdoses?”
I don’t know if I’d have said overdoses would decline, but I definitely would have said any increase would be minor. I firmly believe, having run among libertarians and libertarian-leaning conservatives my entire adult life, that the vast majority of people who supported drug legalization would have said the same thing. And if they’d turned out to be right, and overdoses had fallen or at least held steady, I guarantee you they would have pointed to widespread, safe opioid use, including the black market in professionally manufactured pills, as a sign we could go a step further and legalize drugs completely.
I don’t think anyone would have said, “Well, this will be happening ‘under a regime in which access to prescription opioids [is] strictly limited,’ so overdoses are going to go through the roof—but if we fully legalize, on the other hand, they’ll fall dramatically!” This is a post hoc attempt to rationalize away the unexpected result of a disturbing national experiment. I’d prefer to just change my mind.
But did other countries see different results with their own experiments in drug policy? Miron points to Portugal and France. The problem is that these countries did what I want to do, not what he wants to do.
Miron writes that Portugal “decriminalized all drugs.” People who follow drug policy know what this means, but let’s spell it out for everyone else: This is not at all the same thing as legalizing drugs. It’s still a crime to sell these substances, but use has been downgraded to a civil offense punishable through fines. Portugal also stepped up efforts to provide treatment. This is a perfect encapsulation of my “keep going after the dealers, but treat the addicts” approach.
And while I support what Portugal did, it must be said that drug activists are overstating the effect it had. Drug-induced deaths were falling before the law changed in mid-2001, and while they did fall quite a bit further in 2002 and stayed low for a few years after that, they increased soon thereafter. There were about as many such deaths in 2007 and 2008 as there had been in 2000. (See Figure 9 here.) It’s impossible to disentangle the effect of the law from the natural waxing and waning of drug epidemics, though decriminalization certainly didn’t cause overdoses to immediately skyrocket, as an enthusiastic drug warrior might expect.
Miron’s data for France, meanwhile, pertain to buprenorphine. This is a drug used for medication-assisted treatment, which I also support.
Miron further writes that the U.S.’s experiences before 1914 (when opioids were legal) and during Prohibition support his point. Regarding the former, we don’t have good vital-statistics data from a century ago or more, and we also didn’t have as much disposable income to spend on drugs back then, so the comparison is limited. But it’s worth noting that the nation enacted drug restrictions at that time specifically because addiction was becoming a problem, dating back to morphine abuse following the Civil War and opium dens frequented by Chinese railroad workers around the same time. For whatever it’s worth, the New York Times claimed in 1911 that “Our prisons and our hospitals are full of victims of [opioid abuse], it has robbed ten thousand businessmen of moral sense and made them beasts who prey upon their fellows . . . it has become one of the most fertile causes of unhappiness and sin in the United States.”
The reality of Prohibition is rather messy, too. It certainly had plenty of bad effects, but recent research suggests it significantly reduced alcohol consumption and liver-cirrhosis deaths. It’s quite possible it saved lives on balance. This doesn’t mean we should support bringing back Prohibition—I don’t—but let’s not pretend there’s no tradeoff inherent in legal alcohol.
What about the fact that efforts to control prescription-pill abuse since 2010 seem to have backfired, driving addicts to dangerous alternatives like heroin and Fentanyl? This is something I discussed in my original piece. It does illuminate the need to consider current addicts when introducing new controls, but it doesn’t suggest loosening controls to begin with is a good idea. By 2010, prescription-opioid overdoses had roughly quadrupled in a decade, the clear result of increased, not limited, supply.
Miron finds it “perplexing” that I would think the proper approach to this conundrum is to provide medications to addicts without also legalizing the drugs they’re addicted to. This is not a particularly tricky distinction. Addiction drugs are formulated to satisfy cravings without getting the user high, making them attractive to current addicts but not, generally, to people just looking for a thrill. This makes them uniquely well-suited for an environment where regulators are trying to stop new addictions from forming without pulling the rug out from under current addicts, as they should have in 2010 (and should still).
It’s been almost two years since I publicly confessed in a short blog post that the opioid epidemic had forced me to rethink my stance on drug legalization. I’d like to thank everyone at Law and Liberty for giving me this chance to finally expand my thoughts and research into a longer essay, and everyone who replied and forced me to sharpen my thinking. Being mugged by reality is never fun, especially regarding so grave a topic as drug addiction. But it has been a pleasure to engage in this process with the aid of such talented editors and interlocutors.