The Case Against Drug Legalization

Jay B. Gaskill

The Stakes

On September 11, 2001, I was in Manhattan within smelling distance of Ground Zero when all Americans experienced the confrontation with authentic evil. In the ensuing days, weeks and months, we were reminded of some hard truths, among them that sales of illicit drugs support the terrorist infrastructure.

We still need to learn the lesson that the use of addictive, brain damaging drugs weakens the social order.

Until 1999 I was head of the nation’s third oldest public defender law office. Most of my early career was spent in direct, confidential contact with criminals, and my later career as a manager introduced me to law enforcement professionals whose integrity and perspective I came to respect, just as they learned to respect the value of the defense function. Over all those years, the accumulated real world evidence persuaded me that legalization of most addictive psychotropic drugs would be more than mere bad policy; it would lead to a profound regression of civilization, a development unparalleled in post-Medieval history.



My Recovery From Inexperience

Reality is a great teacher and it rarely fails to trump mere ideology. I have defended thousands of criminals, most of whose lives were dominated in one way or another by the drug culture. Those of us who still love liberty and the civil society in which it flourishes need to understand why widespread drug use promotes crime, quite apart from the economic incentives to support addiction. Libertarians need to learn from conservatives, acquiring caution about change; liberals need to learn from conservatives, acquiring a hard edged sense of accountability; and conservatives need to recover the optimistic compassion of a recovering addict.

My own practical education began in 1969 when, a freshly minted lawyer from U.C. Berkeley’s Boalt Hall, and a liberal with strong libertarian tendencies, I began with the Alameda County Public Defender, an office I would be appointed to lead twenty years later. Headquartered in Oakland, this venerable institution was started by Earl Warren when he was the county DA in 1927. My first boss, a tough, pipe smoking trial lawyer named John Nunez, introduced me to the fascinating world of crime. This was just a few years before drugs began to change everything.

Flash forward about three decades. I was in the Command Center of the modern Jail complex near Pleasanton, California, replacement for the infamous Santa Rita Jail described by Tom Wolfe in his novel, A Man in Full. County Sheriff Charles Plummer, one of those legendary law enforcement figures, a tough guy with a heart, had had invited me to speak to his graduating class. As I walked to the podium to address the Sheriff’s 102nd Police Academy, Plummer introduced me as “the best public defender in the country.” He added, “When I see him on the elevator, I tell him ‘have a bad day.’” We all laughed.

Then I described the scene many years earlier as we public defender lawyers were allowed to mingle with the prisoners for interviews in the old Santa Rita. We stood in the open by wooden barracks, interviewing clients in the Compound, the wind ruffling our files and papers while prisoners lined up in orderly queues. Rarely was a deputy in sight, yet we moved in complete safety, surrounded by polite crooks.

Those days are gone. There were knowing looks among the senior deputies as I told the graduating class about the change in the custody population. We’ve all seen it in the typical prisoner’s hard, wary eyes and the coiled spring body language. There are complex reasons for this human deterioration, the necessary lexan barriers, the difficulties getting a “contact” interview, and all the other security precautions. But one factor towers over the rest: The drug culture has brutalized the criminal population.

Those who have close contact with the personalities of those besotted souls profoundly addicted to one or more of the hard drugs report the same dramatic deterioration in cognitive, ethical and empathetic mental processes. A spouse or child is reduced to an inconvenient object, and a stranger to a non-human obstacle. Think of the holdups at ATM’s where an addict gratuitously shoots an elderly woman in the face, and the carjackings where the victim is locked in the trunk and later murdered. These crime problems are characteristic of the modern drug culture. The level of venality and callousness exhibited by today’s common criminals is a new thing; few of the crooks of the 20’s, 30’s and 40’s in this country were even remotely comparable. Many of these dangerous behavioral tendencies persist in custody, long after all biochemical traces of the offending psychotropics have vanished from the bloodstream.

The naïve libertarian notion that drug consumption is nobody’s business, but the user’s, may be a principled stance, but it is a hopelessly utopian one. The real world is far too “messy” to be force-fit into simple utopian models.

Some psychotropic chemicals are character poison and this effect leads to actions, the cumulative effect of which can be intolerable in any civilization worthy of the name.

Of course, we need to make some distinctions: The “drug problem” represents the spread of various forms of chemically induced irrationality, via psychotropic chemicals that exert an incredibly stubborn hold on the human will. If a given drug (like nicotine, for example) enhances cognition (or is neutral in that respect), it is not part of the problem as I am defining it here, however addictive its hold on the mind. If a drug (like ethanol, for example) produces only a transient deterioration of cognition and is not generally addictive, it is not part of the problem. Methamphetamines, on the other hand, are profoundly and quickly addictive, result in measurable brain damage, and in cases of prolonged abuse, induce paranoid ideation, and violent outbursts. While meth is part of the drug problem as defined here, marijuana is a minor issue about which reasonable minds still disagree.

Drug addiction (as in “drug problem”) tends to sever the connection to social reality, burning out the capacity for veracity, self discipline, integrity and empathy. It is no accident that few major drug dealers themselves use their own products. The character deterioration caused by major drug abuse can infect the larger society. Those who love liberty and the othher benefits of civilization should consider a very real scenario. Suppose powerful psychoactive, addictive drug use were much more widespread. Have you ever had the experience of being the only sober, rational person in a group of people whose personalities, mental state, and judgment were significantly altered by chemicals? Consider that scenario writ large. At what point does the scale of abuse begin to threaten the institutions on which civilization depends? This is why the real world policy issues invariably turn on questions of scale.

The character-degrading tendency of chronic, addictive drug use is qualitatively worse in the current culture than say, 60 years ago, because of the prevalent cultural and moral relativism, the spread of materialist hedonism and the collapse of the authority of traditional ethical systems. There is a critical mass effect, (more on this later), when drug abuse overwhelms law enforcement. Introducing hard drugs to our damaged culture is tantamount to introducing a virulent infection to a compromised immune system.

This is why, after three decades of experience with criminals, I am (on this issue, at least) a recovering libertarian.

Our Recovery From Innocence

In more innocent times, various societies sanctioned use of at least eight categories of psychoactive drugs, all discovered and “field tested” many centuries ago: (1) nicotine (tobacco); (2) caffeine (coffee and tea); (3) ethanol (beer, wine, and distilled spirits); (4) cannabis (marijuana and hashish); (5) psilocybin (psychedelic mushrooms), (6) mescaline (peyote cactus), (7) opium (morphine, heroin); and (8) cocaine (coca). With few exceptions, the scope of use of these substances was confined by ritual, custom and availability.

That has changed. Modern communications and transportation have made all addictive drugs simultaneously available throughout the western world; this is an unprecedented situation for any culture; and the shopping list has greatly expanded. We are at the leading edge of an explosion of new psychotropic drugs, a narco tide of uppers, downers and hallucinogens that threatens to swamp law enforcement resources, degrade public civility, and corrupt democratic institutions.

Welcome to the brave new world of designer drugs. Chemical analogues of the original drug categories are in play in the marketplace; expect newer drugs based on the ephedrines, barbiturates, and amphetamines, and entirely new psychocative chemicals that will be far more popular than LSD. Ecstasy, a brain-damaging hallucinogen related to amphetamine, was just the beginning. The brutal truth is that human ingenuity will continue to generate new dangerous psychotropic chemicals, and human folly will continue to provide a market for them. This why the 21st century heralds an even more difficult struggle with the drug problem than the last.

Our age of innocence is over. It ended with modern biochemistry.

Recovery From Myth

I have centered this discussion of drug policy on the libertarian perspective because the model remains timely and instructive. The libertarian talking points are effective: “Support personal choice.” “Prohibition can’t work.” “The war on drugs can’t succeed because liquor prohibition in the U.S. was a spectacular failure.” “Our resources are better spent on ‘real crime.’” “You can’t legislate morality.” “I am the best one to decide what goes into my body.”

Beyond the slogans, philosophical libertarianism represents the application of the integrity principle to governed and government alike. If the governed are not to violate the volitional integrity of another by refraining from assault, theft, and fraud, then neither is government free to do those things. This recalls Einstein’s explanation for why he was a socialist. It was, he said, because that system was the only single form of social organization based on an ethical principle. In this century, libertarianism may be entitled to make the same claim, subject to similarly naïve mal-assumptions about the real world.

First level libertarian thinking is directed almost exclusively at the actions of the state in the naïve notion that only state action can threaten liberty. I prefer a much larger vision of a libertarian civilization, one that seeks the optimization of conditions for the rational and creative exercise of freedom by individuals (who are protected from overt coercion but not from accountability for their own venality, folly, or unwarranted coercive actions). In reality, the inaction of the state can also threaten liberty by allowing or tacitly fostering the development of private coercive regimes. It is this realistic framework (second level libertarian thinking) that allows a new coalition of libertarians, liberals, and conservatives to entertain a post-libertarian drug policy.

Rasonable minds can reject the naïve libertarian position on the matter of general drug decriminalization, just as reasonable minds have rejected socialist economic doctrine. The problem with all purely intellectual or theoretical approaches to the real word is that they tend to fall into the utopian trap. Reality is much too rich and reactive; like all ultra complex systems, social and political reality is too “messy” to be forced to fit into simple utopian models. As moral agents, we have no choice but to study a real world that continues to confound social theory.

When arguing policy questions of this kind, I prefer to on center on a single maxim: The core conditions that secure human life, dignity, and the freedom for self-expression, require a civilization dedicated to their support, protection and encouragement. I call this the “civilization imperative.”

Clearly, any civilization does a better job in these support functions than the classic brutal state of nature. But there are urban territories within our borders that resemble a brutal state of nature. It is no accident that these are areas shot through with drug abuse.

In the prevailing libertarian myth, monetary pressures created by the drug laws drives drug related crime. This point of view is naïve in its economic determinism, akin to the current (increasingly discredited) dogma that poverty “causes” crime.

The real world lesson from my own observation is quite different. The prevalent fallacy is that drug related crime is driven exclusively (or primarily) by the need to buy drugs in the black market created by the drug laws themselves. My close observation of a very large population over thirty years strongly suggests a more frightening view. Criminal neglect, brutality, and other forms of violence actually interfere with the ability to maintain a drug habit, yet these behaviors are common to the drug users, such is the power of the drugs themselves to alter personality.

Only the naïve ignore the power of addictive psychotropics to degrade personality. I am familiar with cases of drug addicted professionals (among them lawyers seduced by their own libertarian slogans). None needed to steal to keep themselves supplied with drugs. Yet most underwent the same moral meltdown as my clients; most of them, too, descended into criminal activity. These professionals were, on the whole, much cleverer than my former clients, and most escaped criminal sanctions. The affluent are better able to keep drug problems (and other criminal behavior) hidden just under the surface.

Yes there are exceptions. I think of intellectuals who have dabbled with psychotropic drugs while keeping otherwise within the bounds of civilized conduct. Bravo. Bear in mind that my focus here is on drugs that actively degrade cognition, impair judgment, and are profoundly addictive, a description that probably does not reasonably include marijuana or even low dose, occasional LSD use. I can also think of functioning alcoholics who have managed to drive while experiencing a blood alcohol level twice the current legal limit and haven’t (to date) killed anyone. Indeed, I knew a trial lawyer (now deceased from alcohol related health “issues”) who did some of his best work with a residual blood alcohol just over the legal limit. But don’t try doing watch repair or brain surgery while on heroin, cocaine, or meth. These exceptions reveal the strength of underlying character, the strength of will, and the stubborn persistence of the capacity for intelligent action by a small number of substance abusers. They are interesting cases, but beside the point.

The general population in the Western developed nations is increasingly prosperous and illegal drugs are increasingly inexpensive. The current generation of drug-influenced criminals is wreaking havoc because of the erosion of social restraint and character, a malign development strongly influenced by drug abuse. To increase the ready availability of these drugs would make the situation dramatically worse.

Recovery From Moral Indifference

One of the arguments for the legalization of harmful drugs is the notion that suicide is a basic right. If one can choose to die, the argument goes, why can’t we respect the choice to self-inflict the damage of drug addiction? Superficially, the argument has appeal. After all, we wouldn’t seriously consider outlawing tobacco, would we?

Aside from the question of the morality of incremental suicide, induced at the outset by fraud or simple mistake, the argument misses the essential nature of profound addiction. The addict doesn’t immediately die, but lives on and on to cause incalculable social harm to others. Moreover, the case that addiction to powerful psychotropic drugs is a form of chemical slavery is compelling.

Heavy drug addiction, when mental and social functioning is impaired, is almost indistinguishable from classic slavery. Highly addictive drugs controlled substances overwhelm the brain’s volitional capacity. Once addicted, the individual is a profoundly compromised free agent, with impaired creative powers, damaged critical judgment, weakened life affirmation, and destroyed empathy. Recovery from addiction is far more complex and difficult than liberating a kidnap victim, because the vital volitional centers of the brain have been altered by chemical means.

The failure of alcohol prohibition in the 1920’s makes a poor case for deregulation of opiates, cocaine, meth and their highly addictive successors. Over five thousand years we have learned that alcohol is powerfully addictive only for a small percentage of the population, and then only after a significant number of doses. By contrast, heroin is powerfully addictive across a very wide spectrum of the population, and after very few doses. The same is true of cocaine and methamphetamine.

Of course, where the risk of addiction is concerned, there will always be issues of degree. As I’ve just said, reasonable minds differ on cannabis legalization. I’d add these cautions: Its carcinogenic and long term cognitive impairment effects are documented. Advocates of marijuana legalization need to know that the grass sold now is far more potent than that used by flower children of the 60’s.

We learned an important lesson from the tobacco companies who doped their product to enhance addiction. The goal of all recreational drug marketing is to achieve the repeat customer. There is no repeat customer quite as reliable as the drug addict. This is why the market favors addiction. That said, no one can reasonably compare marijuana addiction with chemical slavery in the same sense that the description aptly describes heroin, cocaine and methamphetamine addicts.

It is a malevolent new age myth that “vice” offenses happen in some alternative, life style centers. They happen in areas where murder and robbery are common because the same offenders are doing drugs and violent felonies. That you can find actual slavery in these crime centers is no accident. Character is degraded by addiction to hard drugs on a level that has to be observed first hand to grasp just how insidious and ultimately malevolent the personality change can be. Wealthy recreational drug users, living in safe, gated neighborhoods, may pretend to ignore these drug-ruined communities or live in the fantasy that “It’s just a matter of personal choice.” A slave-holding pimp and a slave prostitute can both be slaves to chemical addiction. In this milieu, the notion of “mutually consenting adults” is the sad conceit of the affluent consumer who ventures into the slave territory at night and slips away, leaving a “slave subsidy” behind, blithely convinced that he/she isn’t accountable for the human degradation there.

None of the addicts I observed over the years blithely entered into this condition of chemical slavery; they had no real appreciation of the nature of their Faustian bargain. But once trapped, their liberation became effectively impossible without the help of external authority.

As a former public defender, I have long argued that drug law reform is needed. Current penalties for drug use vary between the irrationally draconian and the dangerously lenient. But drug law reform must be guided by a single overriding imperative: We must never give up on addiction, because we can never subsidize nor condone slavery. Realistic, effective solutions exist, but they may be unattainable in the present climate. First we have to recover from our naiveté and our moral ambivalence.

Recovery From Denial

All the libertarian/liberal solutions cluster around variations of the “let them suffer and die” theme, coupled with various forms of social quarantine. But in the real world, quarantine will prove impossible if we ever achieve general legalization. All of the law enforcement experts I have consulted concur that general legalization will dramatically increase drug abuse. For reasons I have developed separately in this essay, crime will increase too. This raises the stakes considerably for those who are depending on some form of social quarantine to contain the effects of drug abuse in a more tolerant society that refuses to incarcerate the drug abuser.

Consider that we inhabit a moderately repressive socio-political environment (at least where drug use is concerned) in which most addictive psychotropics are nominally or actually illegal, but there are varying degrees of social tolerance for drug use. That the current level of social quarantine is fairly permeable should be obvious from the pervasive nature of a residual level use of addictive drugs throughout the population. But the aggregate level of illegal drug use in this country remains below the levels that might destabilize public institutions; this reflects the containment effect achieved by law enforcement pressure and public education. It is important for those who are considering the prospective effects of general legalization to recognize and study the significant areas where extreme levels of drug abuse persist, most of which are easily located within the inner city. These areas have been written off by law enforcement and are avoided by most of the “respectable” population. But their cultural influence on the general population has not been contained.

Widespread drug abuse overtaxes law enforcement resources causing whole areas to be ceded to barbarism.

Urban police officers know intuitively from street level experience when there is a critical mass of drug use in any community or area. When this level is exceeded, the crime burden on law enforcement resources takes an exponential leap. Usually, the area is ceded for routine enforcement. This gives us access to working models of the consequences of general drug legalization. Like Scrooge and the ghost, we can actually visit these blighted places and see our possible future, first hand. If you live in any urban area, these places are very close at hand: They are the sectors that police fear to go without backup.

This provides us with a working model of the consequences of general drug legalization. If the drug problem ever reaches critical mass for a sufficiently large law enforcement region, there are not now nor will there likely ever be enough police and justice resources to deal with the overt behavioral consequences of drug abuse. A social policy of waiting for the eruption of specific, overt criminal acts caused or influenced by dramatically expanded drug use is folly. It is like scattering boxes of fried chicken in a school parking lot, then introducing a population of hungry bears. The position of the advocates of general drug legalization becomes, “so if the bears get out of line, call 911!” It ultimately boils down to a question of scale and resources. How many bears? How much chicken? How many police officers? The sale of drug abuse matters immensely. This is why even partial success in the war on drugs is a provisional victory for civilization.

Reform of the nation’s drug laws is a necessary step to a social consensus on drug policy. At a minimum, we need more uniformity in punishment and flexibility in administration. At present, ambivalence competes with overreaction. In the U.S., penalties vary between a simple fine for marijuana and diversion for heroin and cocaine possession, to heavy prison sentences for heroin, cocaine, and marijuana. But such examples are arguments for reasonable proportionality, not for decriminalization.

Traffickers in crack cocaine and heroin have already spawned enclaves (within and outside the US) so corrupted at so many levels that the local substrate conditions for civilization have been effectively dissolved. Those who can, leave and take their children with them. But not all can leave. Moreover, drug abuse has traveled far from the mostly inner city high crime zones to the America’s suburbs and rural heartland. Containment of recreational drug use is extraordinarily difficult even with the help of criminal sanctions. Without criminal sanctions, containment will certainly fail.


Ending Ambivalence

In spite of the obvious personal and social damage done by narcotics, the single common denominator of national drug policy is ambivalence. Too many of us have blithely accepted the “live and let live” ethos without studying the larger consequences. I have encountered this mind set among police officials conflicted about their “vice” mission, among politicians who talk about giving up on the war on drugs, among lawyers who blur the line between drug dealer client and business client, and among the affluent recreational drug users who expect to benefit from a class-based double standard. The “drug war” (read the current criminal justice supported containment effort) flounders because of a lack of will. The source of the failure of will is the deeply rooted ambivalence I’ve just referred to, rooted in the non-interference ethos that treats narco-addiction as a fundamental right on the doubtful premise that “it does no harm.”

Our borders leak like sieves. Illicit chemical labs spring up like weeds. Mind poison; character poison; commerce in chemical slavery, all continue. The control of national borders, of the traffic, all of the related enforcement efforts, are all subject to demoralization and de-stabilization precisely because of the ambivalence I have described. A perceived lack of moral confidence by policy makers not only undermines public education, it implicitly sanctions law enforcement corruption by the drug lords. I personally am convinced that this problem must be countered at every level, psychological, political, and organizational.

Compassionate Toughness

The emerging pattern of malevolent biochemical innovation will force us to confront the demand side with something far more robust than “just say no.” A dramatic reduction in demand requires education and treatment but it also calls for muscle. We need to explicitly recognize that, at a certain point, there is no such thing as “innocent” market participation. Modern society can properly make it illegal to sell the skin of a sacrificed person, in order to kill the market. It doesn’t matter that the end user isn’t directly hurting the sacrificial victims because the market is. We need to recognize that control of the demand side of the market for addictive drugs means that the consumer must be sanctioned.

The economic backbone of the cocaine trade is the affluent, “respectable” user. Poor people living in inner cities are recruited in a “loss-leader” market strategy to create a sales infrastructure ultimately funded by recreational drug sales to the affluent buyers. Without these buyers, the overall cocaine traffic would suffer a catastrophic economic setback. The solution, as painful and politically difficult as it may be, is really very simple.

In every large urban area there is a nightly stream of taxis between the suburbs and the inner city. Money and drugs change hands. For reasons that should be self evident, but apparently are not, the sellers, customers, and the willing drivers belong in custody. A double enforcement standard for rich and poor is intolerable on both practical and moral levels. But jail, alone, is not enough, and draconian prison sentences are too much.

As a general rule, penalties must be widely applied, but rationally calculated to assist the rehabilitation of users without destroying their lives. The affluent and poor recreational drug users alike must be consistently penalized with more than a fine or diversion from the criminal process; whenever repeated use is involved, the convicted users should be required to participate in rigorous drug rehabilitation.

The single most powerful demand control strategy yet developed is criminal sanction-supported rehabilitation. Successful drug court programs are producing measurable, encouraging outcomes, helping to liberate addicts across the US. In the mid 80’s, specialized courts dedicated to processing drug offenses had mixed results. In 1990, Oakland, California Judge Jeffrey Tauber implemented a treatment strategy that integrated calibrated jail sanctions and frequent drug testing with counseling and other traditional rehabilitation techniques.

The new model, “rehabilitation with teeth,” developed with the help of addiction specialists (notably Dr. Alex Stalcup of Concord, CA) was demonstrated in Judge Tauber’s Oakland courtroom in 1991. I was there as the published results of its success began to draw national attention. Other drug court programs existed, but Tauber’s became the model most widely copied. In 1994, Judge Tauber founded and became the head of the National Association of Drug Court Professionals. Currently, there are nearly 700 drug courts, coast to coast and over 400 new courts are planned. The cure rates from these programs are impressive, exceeding the non-recidivist rates typically following traditional jail or prison sentences. We have learned that rehabilitation works when accountability is enforced. Jail (or its credible threat) is an essential component to rehabilitation in all but a few cases.

I have witnessed a hopeful scene many times, starting with Judge Tauber’s courtroom in the 90’s. Repeated daily in courtrooms across the US, a drug court graduation is an amazing thing to watch, especially for lawyers like me who grew up in the adversary system. Unless you are prepared for it, the sight of a prosecutor hugging a defendant and a judge coming down from the bench to shake hands with a recovering addict is unnerving, but heartwarming.

A celebration is warranted. Breaking genuine drug addiction is an act of liberation, on a par with cutting the leg irons of a slave.

I recall another graduation. I was a guest at a major live-in drug rehab program, a well regarded, very strict, live-in program with tough graduation requirements and a very high success rate. During the graduation ceremonies, formerly estranged children and other loved ones gathered as former addict after former addict took the microphone. Hulking, tattooed males, the kind I represented on the heaviest cases, appeared on stage with kind eyes. It was a remarkable thing to see. Their core humanity had been restored. Men wept. Others made jokes about having to pay income taxes for the first time in their lives. As these graduates talked about their experiences, one thing became obvious. Without criminal sanctions hanging over them, not one of these men and women would have gone into the program in the first place. On that day, all were secure and confident in their recovery. And all, without exception, exulted in a sense of liberation.

Better Containment

Designer psychotropics threaten to overwhelm society’s capacity to pass laws. Beyond that, we face the prospective of mass home-manufacture of dangerous drugs. Indeed, methamphetamine abuse is the growing drug epidemic in rural America because of the democratization of drug production technology. A Washington State sheriff’s deputy recently describeed to me how a working meth lab can be maintained in a car trunk; it’s cheap; it’s readily replicated; and it’s the latest thing.

Most addictive narcotics and stimulants profoundly impair cognitive function during use; and long term damage typically results. The clearest evidence of brain impairment has been developed for the amphetamine family of psychotropics, but there is ample anecdotal evidence that all the major addictive drugs can produce long term, harmful brain changes. Recent research at the Brookhaven National laboratory confirms that methamphetamine use eliminates dopamine transporters and reduces the number of dopamine receptors, eventually burning out the ability to experience pleasure. Memory and motor functions are impaired as well. Measurable brain damage happens in mere months of frequent methamphetamine use. Meth is just one cheap, stimulating brain poison, and human ingenuity guarantees that other cheap, equally damaging drugs will follow. The means to make them at home will not be far behind.

Given the reality of limited police resources, the unadvertised law enforcement strategy is quarantine. This policy is problematic on both practical and moral grounds. All quarantines tend to leak. Eventually, even the “good Germans” were no longer able to ignore Dachau. We require a certain uniformity of containment that, while imperfect, does a much better job that the present alleged “drug war.” This requires a recovery from ambivalence, the coordination of education, criminal sanctions and rehabilitation efforts. The costs of failure exceed the costs of the effort many times over.

Without robust containment, the task of insulating the institutions of democracy will be hopelessly impractical, given modern political realities. The drug problem, if uncontrolled, will resemble welfare dependency ramped up ten thousand fold. Civil democracy, the kind in which constructive individual liberty is both protected and actually possible, will be remembered as an unrecoverable dream. Addicts will be encouraged to vote if their “handlers” have to bus them to the polls. Is this scenario too far fetched? Consider the defensive option. Drug testing at the polls? That scenario is far fetched.

Small, beleaguered, enclaves may survive, where the remaining drug free citizens will live in gated, sub-communities, hoping vainly that their children will never leave.

As I have pointed out, we are on the precipice of the greatest influx of new pyschotropic chemicals in human history. We would do well to consider our next options very carefully.

This reality means that the flood of newly released designer drugs, of new recreational uses for the prescribed psychotropics, and the spread of cheap drug lab technologies will pose an enormous legislative challenge. Mere inaction will be tantamount to eventual legalization. As new psychotropic agents hit the black and gray markets, rational drug policy must competently and continuously address at least five clusters of questions:

  1. What are the cognitive and emotional impairment effects?
  2. Is the agent likely to be administered to children?
  3. Is the agent associated with behavior that violates the rights of others?
  4. What are the agent’s overall addictive properties:

(a) mild or severe?

(b) rapid or gradual?

(c) population selective or population general?

  1. Overall, what are the risks of rapid, widespread use among the general population? Is there a danger that regulation will be practically impossible if delayed?

These are serious questions, but number # 5 is of huge importance for the reasons that follow.

Avoiding Irreversibility

Addictive, mind altering drugs are the bulldozers of mind and soul. Whole communities have been taken down. Liberty requires civilization and the drug culture threatens it. Yes, the ultimate policy question really is that simple. Civilization, like any complex, dynamic system, is fragile. The real drug policy question has always been: How much general drug abuse can our civilization tolerate before the foundations of civil order (and civilization itself) are threatened? The answer, in my opinion, is …not much more.

The Chinese boxer rebellion of 1900 was sparked partly because of the West’s continued role as drug dealer, the supplier of opiates for the subjugated Chinese population. It would be ironic if the West succeeded in a form of self-subjugation through improvident narcotic legalization.

The question of irreversibility is a very real one. Substantial narco-legalization will inevitably be accompanied by powerful market forces. This is a dynamic that can quickly get out of hand, especially where interest group politics and the media can drive policy. Consider the prospect of a drug dealer consortium with powerful media and political support. We may naively rely on cigarette pack style warnings, but narco-advertising will not effectively be curbed once legalization of the underlying activity has been achieved. The dirty secret of drug legalization is that drug sales will soon be out of control. We know that an addicted customer is a market manipulator’s wet dream. In a country of addicts, the sellers would soon rule. How far down that road dare we go? Would we be able to deny the franchise to drug users and sellers alike? Would we institute drug testing at all polls? The possible (make that probable) corruption of the democratic system is chilling to contemplate.

As an alternative, our present problems look pretty benign. But, surely we can do better. Drug treatment and rehabilitation facilities need better funding, and we need to frankly acknowledge the indispensability of criminal sanctions as a necessary adjunct to recovery. Legislators need to adjust sanctions, eliminating the draconian, but ensuring uniform, rigorous justice. Judges need sentencing flexibility and treatment options. Law enforcement needs our moral support.

In this ongoing struggle, the liberation model is a powerful moral insight. We need desperately to recover from our naiveté and our moral ambivalence. We may not ever finally “win” the war on drugs, but we dare not finally losing it.

Slogans favoring general drug legalization should carry a warning label. If we ever achieve full scale drug legalization, the days of the current, “ineffective” war on drugs will glitter in our cultural real view mirror like a retreating oasis of sanity. The rest of the view will be straight out of Dante.

Addiction is an equal opportunity slave master.

Copyright ã 2003 Jay B. Gaskill

For permission to reproduce or publish, contact: Jay B. Gaskill, Attorney at Law at


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