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A Tribute to Drug Legalizers

| 22 Comments
If we legalize drugs, we will remove one barrier to their availability.  When we remove that barrier, more will be consumed.  The idea that they'll be "taxed and regulated," and thus safe, is baloney, though frequently peddled baloney.  They'll be as taxed and regulated, and as safe, and as far removed from use by people too immature to handle them, as "taxed and regulated" booze is now.  If you want to see how much that is, sneak into any high school party where the parents are away for the weekend.

Strict libertarians support legalization, and not limited to pot.  This is a growing belief in the academic world where I spend part of my time.  They are good-hearted people, but too captured by ideology.  They think legalization will bring freedom. This is  what it will actually bring.

22 Comments

But prohibition policies did not prevent this. Maybe if we had this drug legal and regulated, this would not have happened and/or this young girl could have felt more comfortable talking to adults about her problems.

You are often quick to say the harm comes from the drug when it might come from the prohibition policy. We do not know and cannot know until we try alternatives.

Doug,

I thought this one might get your attention. The beautiful teenage girl strikes close to home.

"But prohibition policies did not prevent this."

No prohibition policy, ever, has prevented all of the harms at which it is aimed. The only relevant question, then, is whether it SUPRESSES the harm, complete prevention being impossible. Creating a legal barrier to the acquisition of drugs suppresses their availability, therefore their consumption, therefore their harm.

"Maybe if we had this drug legal and regulated, this would not have happened and/or this young girl could have felt more comfortable talking to adults about her problems."

If her supplier had been in jail, this would not have happened.

It is partly about talking to kids, yes, and I'm all for that. But it is also about letting people who are thinking about using or selling this stuff know that they'd best think again, because the prosecutor will be waiting.

"You are often quick to say the harm comes from the drug..."

That is especially true in a case like this. She didn't die because of too much DEA. She died because of too little DEA.

"...when it might come from the prohibition policy."

The studies I have been told about show that, when Prohibition ended, alcoholism and the adverse health effects of alcoholism increased, which of course makes intuitive sense.

In addition, "strict regulation" of Substance X is inevitably a false promise. Check out any high school party tonight to see how "strict regulation" of booze is working. And it will be worse than that with heroin, because the nature of addiction is such that the addict seeks a higher and higher high, to levels a government-regulated supply wouldn't and shouldn't allow, because you're getting in the overdose zone.

"We do not know and cannot know until we try alternatives."

There is decent public support for alternatives to pot criminalization, true, because pot per se won't kill you. That is not true of heroin. Indeed, heroin is just another word for "poison," which is why, unlike pot, there is essentially zero public support for legalizing hard drugs in any fashion.

All fair point from one who, in this setting, wants government to take the place of parents. But that philosophy also leads to a welfare state and Obamacare and communism. I worry about any government program that puts more faith in government than in parents. You may not, but be aware of the consequences you engender.

No, I absolutely do not want government to "take the place of parents." But there are times when parents (and kids) are over their heads, and the story I've related here is one of them. In such cases, I want the government to SUPPLEMENT what parents are able to provide.

In addition, of course, while way too many heroin sales are to minors, the majority are to adults. Keeping drugs illegal will suppress the supply, and thus the damage, to those people as well as to teenagers, and hardly constitutes the usurpation of parental rights or responsibilities.

Got it.. The answer to the failings of existing parents and existing big government is BIGGER government. I hear this from the left all the time, and I will be sure to tell those who want a bigger EPA and a biggest DofE and a bigger health care system run by federal officials that Bill Otis agrees that bigger government is the right response to any identified social problems.

Methinks you are falling prey to some of the bad habits of your commenters, i.e., putting words in my mouth rather than letting me state my own position.

I did not say, or imply, that I want a big or a bigger government, nor does my position logically commit me to such a thing.

I'd be happy with a much smaller government -- say, a government the size of the one we had in the 1970's when the DEA was created and given its mission of suppressing heroin along with other drugs.

As I'm sure you know, I favor decreasing the size of the huge majority of the federal government, which has zip to do with prisons or drug enforcement but lots to do with out-of-control entitlements. Knowing this, you're just getting carried away when you say that (emphasis added): "Bill Otis agrees that bigger government is the right response to ANY identified social problems."

As I've said a zillion times on your blog (while being called a racist (and now a kapo) for saying it), the major social problem in this country is one-parent families and all the many and serious ills that take root in that. The government can do little if anything to solve that problem, and I don't want it even to try. The culture will have to solve it.

At the same time, when some guy who wants a fast buck rather than a normal job sells a lethal dose of heroin to a teenage addict, I want that guy in jail for a very, very long time.

Don't you?

In your first response, Bill, you assert that the kid here "didn't die because of too much DEA. She died because of too little DEA." You do not blame the parents, nor do you say the solution is better parenting. Instead, you suggest the solution is more government.

I agree that big DEA is not as huge as other parts of the federal government. But the issue here is governing philosophy, not government scope. My philosophy in this context and others is to favor individuals to be responsible and to foster freedom, your philosophy in this context is not to trust individuals and to want the federal government to grow to take care of people who cannot be trusted to take care of themselves.

I do not begrudge your philosophy, but it is not a conservative one as this terms is rightfully employed.

And I wonder if you are eager to put tobacco execs in prison --- since their profits depend on the creation of teenage addict to deadly products --- and I will continue to wonder about what principles are involved for determining where and when you nanny state views of protecting people from themselves and the marketplace ends.

-- No, I don't blame the parents, because they did nothing illegal that I know about, and because it would be unbelievably heartless. It would also be untrue, or at least I have no way of knowing it would be true.

Even the best parents can get in over their heads, and having a 16 or 17 year-old heroin addict as a daughter has to be the definition of being in over your head. I can't even imagine the terror and chaos of it.

-- "I agree that big DEA is not as huge as other parts of the federal government."

That's one way to put it. A more precise way to put it is that the DEA, and the federal prison system, and the entire DOJ budget for that matter, is a fraction of one percent of the federal government.

-- "But the issue here is governing philosophy, not government scope."

Well, yes and no.

First, governing philosophy has a good deal to do with government scope, and takes in a huge amount of intellectual territory beyond the scope of this entry (or a whole semester's worth of entries).

Second, what I'm actually talking about in this entry is a particular case. It's a case that illustrates one useful function the government can perform when parents have done all they can and predatory drug pushers move in.

Third, again, I get to define my own governing philosophy. I haven't handed that portfolio to anyone else.

Fourth, if one were to state my philosophy, it wouldn't be to not trust individuals. If I'm recalling correctly, it's you and your allies in the criminal defense bar whose constant refrain is that their clients are NOT responsible, and that, if a "draconian" government puts them in jail anyway, it's up to the government to see to their medical care, psychiatric help, job skills and on and on. Why is it that your stated philosophy of relying on the individual to be responsible for himself seems absent in that context? Are criminals exempt from that rule? Why?

-- I am eager to put tobacco execs in prison if they have broken the law, you bet. But you point to no law that they have broken, and I am not independently aware of one.

-- "I will continue to wonder about what principles are involved for determining where and when you nanny state views of protecting people from themselves and the marketplace ends."

It's a matter of tradeoff's and line drawing, as the law (and adult life) always is.

This girl needed protection her parents lacked the means to provide, as would almost all parents in that situation. Her death was in a sense her own doing, I agree. But it was also in a sense the heroin dealer's doing.

The dealer would not be held criminally culpable under a system of legalized heroin (the girl was of age at the time of her overdose, so it was not a sale to a minor).

But in my opinion, he most certainly should be held criminally liable. So I'll ask again: Do you share that opinion? Do you think he belongs in prison? Or would you just let him go, free to keep it up?

How do you know this teen got drugs from a pusher rather than a friend/classmate and/or fellow addict? There are people who profit from the drug trade, though bad guys profit more due to prohibition. And her death was, I would suspect, not any heroin dealers goal, as he lost a customer.

Replace the phrase predatory drug dealer with predatory oil company or predatory insurance company or predatory bank, and you have the basis for a huge EPA, and for Obamacare, and for the CFPB, and so on. The left thinks we all need protection and services that government can best provide. I think individuals should look inside, not to govt, for help. And I think they should be held responisible when they inflict harm on others, but not when others harm themselves.

I agree that drug dealers who sell drugs harmfully should be held liable, but I think tort liability might be much more effective. Putting more drug dealers in prison just makes it that much more lucrative to be a drug dealer for others. Unless and until you provide evidence that putting dealers in prisons reduces the number of dealers, I think the big govt approach to this problem achieves little more than to grow govt.

And you still have not replied to the reality that your response to govt failing here is for even more govt. And so it goes for all statists.

"How do you know this teen got drugs from a pusher rather than a friend/classmate and/or fellow addict?"

Friends, classmates and addicts who supply heroin are simply subcategories of "heroin pushers." They might not be professional pushers, yet, but they're still pushers.

Still, if you'd prefer, I'll call them "heroin distributors." It doesn't change the basic argument, although it might change the sentence I'd like to see imposed.

"I think individuals should look inside, not to govt, for help."

I'm not sure how you square that with your position on SLP that the government should provide all manner of expensive services to inmates, up to and including a sex change operation. Talk about statism!

"And I think they should be held responisible when they inflict harm on others, but not when others harm themselves."

When we're talking about drug addicts, people who simply do not have the same degree of control that you or I do, the line between externally-inflicted harm and internally-inflicted harm is not as sharp as it seems you believe it to be.

"Unless and until you provide evidence that putting dealers in prisons reduces the number of dealers, I think the big govt approach to this problem achieves little more than to grow govt."

Must I also provide proof that putting bank robbers in prison reduces the number of robbers? The truth is that, as long as there is money to be made robbing banks, more robbers will crop up to replace the ones we imprison. So what? It is immoral to steal, and it is immoral knowingly to facilitate grave harm or death to another human being. That is why both robbers and pushers (or "distributors") belong in the slammer.

"And you still have not replied to the reality that your response to govt failing here is for even more govt. And so it goes for all statists."

I'm for more targeted and, as you might say, "smarter" government.

Now let me ask you this: What percentage of the population would you guess agrees with your view that a person who knowingly furnishes an overdose-level of heroin to a teenage addict should have no criminal liability whatever?

If you can produce evidence form any even vaguely neutral source that the number is even ten percent, I will be delighted to take all the Bermans to a steak dinner at the Ritz. (Actually, I'd be delighted anyway, but that's a different story).

To clarify, Bill, you are saying that if/when any college kid gets any illegal drugs at a party --- whether cocaine or X or Molly or pot or heroin or meth or oxycodine --- everyone involved with that party is a drug pusher who should go to prison (for a long time?) for their involvement with illegal drugs? Would the same principles also apply to alcohol among kids under 21?

I share you concern for those eager to profit from distributing harmful products to addicts. But the tobacco industry makes a lot more from doing so than any street dealers. So does alcohol industry and the snack food industry? And what of gambling addicts and video games addicts and obese folks --- do you want big government to use lots of guns and butter to try to keep these folks safe from themselves?

I continue to struggle to see when Otis big government to take care of the weak ends and Obamacare and the welfare state begins.

Meanwhile, tthe difference between bank robbery and drug dealing should be painfully obvious: banks do not ask to be robbed and will spend a lot of money to protect themselves no matter what the size of the CJ system. In contrast, the harder the government tries to forbid vice, the more consumers and producers will spend in an effort to connect.

To conflate snack food, video games, and alcohol with
cocaine, heroin, and meth is a fruitless exercise in false equivocation.

To some evolutionistic thinkers such as Peter Singer,
a rat is a pig is a dog is a boy.

History recorded the mix of the prestige of Harvard's Timothy Leary,
with this morality of relativism/atheism.
Variations on his theme produced devastated lives and the diminished society
of the '60s-'70s (continuing somewhat today).

Change the laws to enable this undiscerning morality, as Professor Berman favours,
and prepare to suffer court sanctioned overdoses.
--Adamakis

I think legalization (or decriminalization, whatever that means) of "hard drugs" is a bad idea. I am not aware of any useful purpose for heroin, cocaine, PCP etc... perhaps the penalties for mere use should be relatively slight, but there should be something as I think it creates a deterrent effect. Raising the drinking age to 21, deters younger kids from drinking as much as they otherwise would - cannot goto bars, and have trouble acquiring alcohol while the penalties for drinking underage are hardly draconian ; usually the equivalent of a ticket.

As far as I know, the primary purpose of drinking alcohol (these days at least) is for the buzz. I am not aware of any medicinal effects. I think the distinction between alcohol and the hard drugs is that alcohol has been a part of human society for 1000s of years - it is unlikely it is going anywhere. The harder drugs are relatively recent concoctions and I do not think anyone shoots heroin or snorts coke socially like drinking a glass of wine.

My other observation is that there doesn't seem to be a lot of discussion about legalizing certain prescription drugs that have legitimate uses like ambien, adderall, and vicodan. Anyone have thoughts on how to punish people who use prescriptions illegally or on those who deal them including crooked physicians and pharmacists?

MEF

I surmise from the media and other sources that a lot of folks snorted coke socially in the 1980s, though I am not sure if this was common outside Hollywood and wall street. In any event, Matthew, you are headed down what I consider the sensible regulatory path: seek to criminalize and deter with tough sanction uses of all substances/activities among individuals most likely to be harmed by their mis-use/abuse and most likely to become addicted. Have a more nuanced regulatory approach to use by responsible adult users.

Notably, we take this nuanced approach to gun regulation, to driving laws, to gambling, to alcohol and tobacco use. And in all those settings, we create millions of legal jobs without excessive government efforts to try to prevent responsible adults from being involved in risky behaviors. I definitely think it is reasonable to consider the same approach to marijuana and I have an open mind about whether other substances also would be safer regulated rather than prohibited.

Bill is right that most folks now, especially those who benefit most from restricting freedom, find these ideas scary. But freedom has a way of prevailing in the long term, whether we talk about freedom from slavery or freedom to marry or freedom from big government prohibitions. I am not expecting everyone to share my perspective, but I do encourage open mind and open hearts to be critical to keeping freedom on the march in a nation conceived in liberty.

Freedom is not strictly synonymous with liberty
as construed by unhinged criers.

As wisdom is the right use of knowledge,
so liberty is the right use of freedom.

“But I cannot quit this subject without attempting to correct some of the erroneous
opinions respecting freedom and tyranny, and the principles by which they are
supported. Many people seem to entertain an idea, that liberty consists in a
power to act without any control. This is more liberty than even the savages enjoy.
But in civil society, political liberty consists in acting conformably to a sense
of a majority of the society.

In a free government every man binds himself to obey the public voice, or the opinions of a majority; and the whole society engages to protect each individual.

In such a government a man is free and safe. But reverse the case; suppose every man to act without control or fear of punishment—every man would be free, but no man would be sure of his freedom one moment.

From such liberty, O * Lord, deliver us!
But what is tyranny? Or how can a free people be deprived of their liberties?
Tyranny is the exercise of some power over a man, which is not warranted by law,
or necessary for the public safety. A people can never be deprived of their liberties, while they retain in their own hands, a power sufficient to any other power in the state.
-- /An Examination Into The Leading Principles Of The Federal Constitution /
by Noah Webster to Benjamin Franklin, Pres. of the Comm. of Pennsylvania
, October 10, 1787

Henceforth,
“[O]nly a virtuous people are capable of freedom. As nations become corrupt and vicious, they have more need of masters.” -- The Writings of Benjamin Franklin, (from April 17, 1787)

« Adamakis

Based on the last quote, Adamakis, do you think Ben Franklin would have blessed Obamacare and/or other parts of our modern welfare state?

My sense is that many on the right believe our populous has grown more "corrupt and vicious," but I then do not hear those folks welcoming the paternalistic growth of the federal government to be master of monies and health care and education and so forth.

I surmise Bill and you have ways to distinguish paternalism in the form of the drug war from paternalism in the form of Obamacare. But, ever the ivory tower academic, I continue to struggle with Bill's eagerness to showcase a dead young adult to try to justify the big government drug regulations, while others on the right lament when Obama showcases young adults without healthcare to try to justify big government health care regulations.

I am not trying to provoke, only to highlight that someone like me who fails to understand the principles and pragmatism of both the modern left and the modern right has a difficult time connecting modern right liberty-rhetoric with tradition GOP support for big government prohibitions.

I'm curious what Bill's take on federal anti-gambling law specifically as to online poker and sports gambling as whether it is good policy or not.

Doug --

"Bill is right that most folks now, especially those who benefit most from restricting freedom, find these ideas scary. But freedom has a way of prevailing in the long term, whether we talk about freedom from slavery or freedom to marry or freedom from big government prohibitions."

I would very much appreciate it if you would refrain from implying that my support for keeping drugs illegal is comparable to support for slavery.

Matthew --

I actually don't know beans about on-line gambling or sports gambling. I don't even know the sections the US Code that deal with them.

I haven't been in the USAO for 15 years, so I don't know what the policy is now. My instinct is that the priority for prosecuting on-line gambling is somewhere below the priority for prosecuting a guy smoking joint in some national refuge.

Doug B. | | Reply
Based on the last quote, Adamakis, do you think Ben Franklin would have blessed
Obamacare and/or other parts of our modern welfare state?

• A penny saved is a penny earned | God helps them that help themselves
• Haste makes waste | There are no gains without pains
• Industry gives comfort and plenty and respect
• Diligence is the mother of good luck. | God gives all things to industry.
• Meanness is the parent of insolence. | All things are easy to industry, All things
are difficult to sloth.

• Not to oversee workmen is to leave them your purse open
• What maintains one vice would bring up two children
• Love your neighbor Yet don’t pull down your hedge
• Plough deep while sluggards sleep and you shall have corn to sell and to keep.

“Poor Richard” could hardly be expected to have countenanced a federal government
taking money from the industrious to fund all things medical,
from abortions to ace bandages, of the inadequate.

Churches, yes, governments, especially the federal, doubtful indeed.

~Adamakis

Doug --

"I agree that drug dealers who sell drugs harmfully should be held liable, but I think tort liability might be much more effective."

Tort liability will be completely ineffective. First, bringing a civil case to trial takes years; they always get put behind the criminal docket. Second, assuming the plaintiff wins, what chance does he/she have of collecting a dime of the judgment from this type of defendant?

Asymptotic to zero.

To sum it up: Your position seems to be that we should abjure criminal remedies for injuries caused by heroin in favor of civil remedies, knowing that, in the real world, civil remedies are a mirage.

If I am wrong about that, please let me know how. If I am correct, then it turns out that your position is that there should be no effective legal disincentive to heroin dealing.

How much support do you think ordinary, fair-minded people would have for that view?

Doug B. | | Reply
Prof. Berman:
More to the heart was Madison:

If Congress can employ money indefinitely to the “general welfare,”
and are the sole and supreme judges of the “general welfare,” then
they may take the care of religion into their own hands;
they may appoint teachers in every state, county, and parish and
pay them out of their public treasury;

they may take into their own hands the education of children,
establishing in like manner schools throughout the United States;
they may assume the provision for the poor; they may undertake the
regulation of all roads other than post-roads; in short, everything from
the highest object of state legislation down to the most minute object
of police would be thrown under the power of Congress,

for every object I have mentioned would admit of the application of money,
and might be called, if Congress pleased, provisions for the “general welfare.”
 J. Madison, “The Cod Fishery Bill,” February 7, 1792

~Adamakis

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