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Prohibition vs. Regulation

an analysis of drug prohibition as (irresponsible) public policy
The "Social Contract," is accepted by most political scientists as the basis of Western democratic government. One of its fundamental considerations it that public policy should be enacted for the sole purpose of protecting or enhancing the welfare of the governed. In the event that a policy can be clearly shown to work against that welfare, it should be repudiated or suitably modified.
Commerce, that process by which goods and services are bought and sold, is essential in any society. It provides not only the basics of subsistence, but also those extras which enhance happiness for the current generation and add to the patrimony of posterity.
Man is naturally entrepreneurial and competitive; history has demonstrated, particularly since the Industrial Revolution, that unregulated commercial activity leads to exploitation of the least fortunate, depletion of natural resources and pollution of the environment. To limit these abuses, governments have come up with two quite different general ways to limit commerce: regulation and prohibition.
How Are Regulation and Prohibition Different?
Many people see little difference between the government telling them how to do something and telling them what they can't do at all. To most, both are simply unwelcome examples of the government flexing its muscles. The recent discussions of the "tobacco deal" in the press, in Congress, and on television, have confirmed a long held suspicion: there is little accurate popular understanding of the critical difference between normal regulation and criminal prohibition. It's important to understand their critical differences as methods of limiting commerce if we wish to analyze drug policy realistically.
Both regulation and prohibition laws are justified as part of the Social Contract. In the United States, an attempt has been made to limit such powers by a written Constitution. Much could be said about the Constitutionality of drug prohibition, or indeed, any prohibition law, but for now, let's assume that both prohibitionary and regulatory powers are freely granted by the Constitution. The issue then becomes; in any given situation, which approach should responsible policy makers employ?
Regulation
A simple definition of regulation in this context, is a set of laws defining the circumstances under which a citizen, a bona-fide resident, or a corporation may exercise certain privileges as a commercial entity. Regulation attempts to balance the need to protect the public from unscrupulous merchants or providers of service against the need for a free flow of legitimate commerce.
A good example of regulation is requiring a license for the practice of a profession. The requirements for licensure are spelled out in the law. Those who qualify are empowered to practice within certain boundaries Disciplinary measures may be taken within the profession without directly jeopardizing the right to practice; more serious violations are punishable by specific sanctions relating to licensure. Practicing without a license in defiance of the law might ultimately provoke criminal sanctions, but short of that, law enforcement has no role. We rely on an honest government to keep abreast of technology, and when new circumstances create entirely new commercial opportunities (such as communication, commerce and advertising via personal computer), we also rely on government to come up with fair, flexible and reasonable rules.
The overwhelming majority of commercial activities in the United States are governed by a complex overlapping set of local, state and federal regulations relating to working conditions, labor practices, advertising, licensure, safety and myriad other details which may be applicable to any particular enterprise. While they may appear repressive and overwhelming when considered in the abstract, such regulations have evolved in a practical setting in which commerce has been and is carried out on a daily basis. One of the advantages of regulation is that it affords public access to and scrutiny of the entire process, an obvious safeguard of the public interest.
Although they generate many complaints and are the constant subject of both argument and litigation, the regulatory systems function reasonably well. While in extreme cases, regulatory disputes may lead to the involvement of law enforcement, the role of the police is almost never primary. First, there are committees, panels, boards, commissions etc., within the industry or profession itself. Beyond that, similar organizations exist within the appropriate levels of government administration. Further beyond those bodies are the civil courts. The overwhelming percentage of regulatory disputes and infractions are resolved by a decision arrived at well short of any involvement of law enforcement. The system works because compliance is forced by the desire of all the commercial entities to remain part of the legitimate business community. The ultimate sanction of almost all the regulatory laws is to order a product or service withdrawn from the legitimate market. This is a very real power, simply because all the participants have a such a high stake in remaining part of that market.
Prohibition
Criminal prohibition is very different from regulation; because the law decrees manufacture, sale, possession or use of specified substances to be a crime, regulation rarely enters the picture, except at the margins (as with the DEA granting licenses to physicians for prescribing Schedule 2 agents). Most interactions take place between a criminal industry, its customers and law enforcement. Illegal markets would be non-competitive unless criminals were given a monopoly by the law. The real effect of prohibition is to give a competitive advantage to criminals by outlawing a heretofore legal market. Participants in criminal markets have decided that because of their competitive advantage as criminals, they have no stake in legitimacy. Producers and vendors conclude that the enormous untaxed profits which attend successful sale of an illegal product offset their potential risk of apprehension and punishment. Consumers tacitly indicate a willingness to assume similar risks when they purchase the product.
The only rules are ad hoc arrangements which are adhered to on an empiric basis. When either profit or survival necessitate a change in the rules, parties are free to change them, relying on their own ability to enforce those changes. The panels, boards, commissions and courts which restrain competition, make rules and enforce safety standards in legitimate industry are replaced by violence, deceit and corruption. Lucrative black markets favor survival of the most cunning and brutal entrepreneurs on the planet and make no provisions for dissatisfied consumers.
Under prohibition, the government's role is limited to suppression by law enforcement agencies, with no opportunity to use its authority to obtain the considerable benefits which flow from regulation in other commercial pursuits. Those benefits include taxes paid by all market participants, retirement and health benefits, safety standards and the benefits of legitimate employment for workers, purity and price competition and honoring of contracts for consumers. The cost of rejecting regulation for "illicit drugs" can be can measured in the annual morbidity and mortality from paraphernalia laws, uncertain dosage, and lack of enforceable standards for street drugs as well as the carnage of gang warfare between rival dealers. Beyond those evils are the tax dollars wasted on futile enforcement and the ultimate distortion of society by selective imprisonment of minorities.
The very nature of prohibition, guarantees almost no public access to how it is evaluated, enforced or controlled. As noted, prohibition is limited to interaction between a web of criminal organizations and law enforcement agencies charged with suppressing them. Neither are famous for allowing objective analysis of their critical inner workings. Street drugs are delivered to consumers from an efficient, but nearly invisible decentralized industry which has to grow raw materials, process, warehouse and transport a final product to a multilevel retail distribution network. Legal enterprises carrying out similar functions are scrutinized econometrically each step of the way by armies of analysts. However, almost no comparable data can be reliably derived from the constantly shifting illegal drug market. If there can be no reliable measure of production or consumption; it follows there can be no reliable assessment of law enforcement which then becomes free to evaluate its own competence and effectiveness.
Despite this advantage, the shortcomings of the suppression effort and the growth of the drug market have been so obvious, that advocates of prohibition have been forced to adopt the lame strategy of claiming that despite failure to control the drug market, the policy is really a success because without it, we would be inundated with even more addiction and crime. In fact, they claim, there is no possible alternative to a policy of drug prohibition. A cohesive (and blatantly self-interested) lobby has formed around the single issue that drug prohibition is an essential element of American policy and that "legalization" is unthinkable. Until recently, their message has been accepted by the general public almost without question. Desperate to reinforce it in the face of recent setbacks (successful medical marijuana initiatives ), the prohibition lobby has become increasingly unconcerned with the truth or accuracy of public statements issued through a largely compliant and ignorant press.
The justification for criminal prohibition is that the danger from certain drugs is so grave, the only way to protect the public is to ban them. If a ban could be rendered completely effective, this questionable premise might actually be tested, however eighty years of history have shown the various methods of suppression to be so ineffective that the global drug market, has grown progressively, especially since the end of World War II and "illicit drugs" are now everywhere purer, cheaper and more abundant than ever.
"Illicit Drugs" Are a Government Creation
Since only the government has the power to define "illicit," drugs, the resultant drug market and the criminal industry which supplies it are entirely government creations. This is an important point to grasp, since almost all prohibitionist rhetoric is delivered with the implication that "illicit drugs" are an unavoidable fact of life. In the rare instances when they attempt to justify drug prohibition as policy, they begin with the assumption that banning "illicit drugs" is an implicit part of the social contract.
Ingenuously failing to recognize that their shopworn "drug scare" propaganda actually advertises "illicit drugs" and promotes their use, the prohibition lobby usually attempts to blame continued demand for them on an uneducated hedonistic public or, more vaguely, on the drugs themselves. When reminded that the illegal market, with its attendant evils was created by the government, they resort to the fatuous defense that "legalization would send the wrong message" and declare that a "moral condemnation" of certain agents is essential. This logic ignores the fact that a legal pornography industry, not promoted by the government, manages to exist within a regulatory framework which simply condones it. It also ignores the fact the thrust of the agreement between the state Attorneys General and "Big Tobacco" is preservation of a legal, tax-paying industry despite its marketing of a dangerous, addictive product. Claims that an overwhelming wave of drug addiction would follow "legalization" of "illicit drugs" ignores the reality that there has been a steady decline in per-capita alcohol consumption for over two decades and a steep reduction in drunken driving over the past decade in a climate of "legalization" and effective education.
The annual government response to the inevitable failure of its attempted suppression the drug market is to request an ever bigger budget. Even though many drug war items are hidden in the budgets of other agencies, admitted expenditure this year is sixteen billion, an all time record. This does not include mandated state spending, which in the aggregate, exceeds federal costs. Given the level of failure of our prohibition policy, for a President to brazenly announce within his budget message, as Clinton did, that all efforts at "legalization" would be resisted to the extent possible is a profound betrayal of the public trust. However, until the public understands the nature of prohibition and how the prohibition lobby perpetrates its monstrous fraud, Clinton and our other political leaders will never be held accountable for leading America down this long road of folly.
Tom O'Connell
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