Prohibition vs. Regulation
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an analysis of drug prohibition as (irresponsible) public policy
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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.
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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.
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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.
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How Are Regulation and Prohibition Different?
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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.
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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?
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Regulation
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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.
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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.
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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.
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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.
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Prohibition
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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.
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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.
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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.
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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.
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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.
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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.
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"Illicit Drugs" Are a Government Creation
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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.
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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.
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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.
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Tom O'Connell
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