Drug Liberalization and Legalization: Tread Cautiously

By Kevin D. Williamson

Thursday, October 21, 2021

 

‘If cannabis is legalized, should all drugs be?”

 

That is the headline question presented in the most recent installation of “The Argument,” a New York Times podcast hosted by Jane Coaston. Fortunately, the dopey headline is not a very good summary of the conversation, which is thoughtful and useful. If there is someone out there who believes that the liberalization of marijuana laws around the country presents a per se case for the legalization of all drugs (whatever it is “all drugs” might hope to mean), I have never been able to dig him up, and neither, apparently, has the New York Times.

 

If it is difficult to find a sane person who believes that, it is because there is no such thing as “drugs.”

 

But there is something more at work there than sloppy copywriting. Because most of us are so helplessly imprisoned by language, it is easy to mislead us (and for us to mislead ourselves) by means of false or meaningless categories. “Drugs,” meaning any chemical that induces a physical change in an organism, is an almost uselessly broad term. Nobody would with a straight face ask, “If aspirin is sold over-the-counter, why not doxorubicin?” But we think of marijuana, peyote, and phencyclidine as points on a spectrum within the category of “drugs,” when they are basically different things.

 

The formula “If x, why not y?” assumes a tightness of comparability that does not apply to the relationship between, say, marijuana and fentanyl. The structure of the proposition begs the question, assuming relevance that is not attested to by the facts.

 

That being said, the decriminalization/legalization of marijuana is a case that offers some interesting lessons, though these may be more usefully applied to such questions as the legal status of prostitution than to the very dissimilar case of heroin. Heroin is much better analyzed in the context of drugs that are chemically and socially similar, especially prescription opioid pain medication.

 

The increase in opioid misuse and overdose (it is moral evasion to call it an “epidemic”) ought to temper libertarian optimism. Yes, it is better to have drugs that are manufactured by pharmaceutical companies according to reliable standards of purity and dosage, but opioids that meet even the most stringent safety standards remain quite dangerous when deliberately misused. The FDA imprimatur does not make a substance safe. We already knew that from the example of alcohol: It is better to get your booze from Brown–Forman or Bacardí than it is to drink homemade bathtub hooch, but you can drink yourself to death with bottles of 1982 Lafite Rothschild as well as you can with moonshine.

 

If our goal is harm-reduction (and it should be), then it would be better to have heroin users getting their product from Bayer (which invented the stuff back in the late 19th century) or some other responsible manufacturer than from backcountry kitchens in Sinaloa. (As usual, this is complicated — those outlaw manufactories in Mexico acquire critical inputs from U.S. drug companies.) Similarly, it would be better if we replaced cartels and black markets with shareholder corporations and open markets, and if our containment efforts relied more heavily on commercial regulation and health-care services than on militarized police units, asset forfeiture, and incarceration.

 

But as social engineering goes, such efforts assume our ability to engage in some very fine tuning. Many of our liberalization strategies would reduce the risks and harm endured by most individual users but would offset some of those benefits by increasing the number of users. More users in a safer overall heroin ecosystem might be a win on balance, but it would not be a win-win without tradeoffs. And those tradeoffs would need to be managed actively. This is not a set-it-and-forget-it reform.

 

We spend a great deal of time talking about the effects and potency of different drugs, but we should think as much about such seemingly mundane issues as packaging and distribution. Prescription pain medication is widely abused in part because of the way it is distributed: A patient gets a prescription, goes to the pharmacy, and walks out with some quantity of pills that he can take himself or, if he prefers, sell. This makes such medication a very different proposition from, say, the typically Swiss heroin-maintenance program in Geneva that Benjamin Wallace-Wells mentions in the New Yorker. Swiss heroin users show up at the appointed times, twice a day, and receive precisely dosed heroin under medical supervision, with very little opportunity for redirection of the drug. Legal, yes, but far from a freewheeling consumer market. (Swiss health care, in a similar way, must disappoint both progressives and libertarians: The market is entirely private in that there is no “free” state-provided health care, but that market is much more intrusively regulated than anything that would be familiar to the American experience.) In these examples, we can see two very different versions of legal but highly regulated access to opiate drugs.

 

“Legalization” can take radically different forms.

 

And while the ability of marketing to induce the use of opioids or any other product is certainly exaggerated (part of our ongoing effort to dehumanize the poor and the marginal by stripping them of their moral agency and transferring it to corporations and other powerful entities), those who worry about putting regular open-market forces behind heroin or cocaine are not obviously wrong to do so: Free markets are very good at lowering prices and broadening access, which may provide some benefits (disincentivizing cartels) but also impose real social costs.

 

Those are the kinds of questions that have to be answered when it comes to liberalization. There are broad questions (Prescriptions, like with painkillers, or restricted retail, like with alcohol?) and narrow ones (How many pills can you get at once?). The failures of the so-called war on drugs are well-documented and generally well-understood, at least by people who are not in elected office. (In this as in much else, Joe Biden much more closely resembles Donald Trump in practice than he does the man of progressives’ dreams.) And those failures point us in the direction of liberalization and legalization — but cautiously.

 

The kind of granular, case-by-case approach that is required here is, unhappily, something that Americans are not very good at right now. With every political issue effectively bundled together with every other political issue in our Kulturkampf politics of mutual tribal antagonism, it is very difficult to do one thing at a time with due deliberation and to recognize that, in cases such as this, consistency is not necessarily a virtue. Ultimately, there is no case of “drugs,” only the cases of “this drug” and “that drug.” This is going to take a lot of democratic bandwidth — probably more than we have to spare right now.