A Small But Significant Victory

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A Small But Important Victory

by James Ostrowski by James Ostrowski

Since the natural tendency of government is to grow ever larger and more powerful, we should savor and celebrate those rare occasions when its power and scope are reduced. Libertarians, led initially by Thomas Szasz and Roy Childs, have been leading the fight against the "war on drugs" for decades so we can take our share of the credit for a recent scaling back of the harsh Rockefeller drug laws.

Here’s how the reform was described by Rochester’s WROC-TV’s website:

It changes the maximum sentence for criminal drug possession from 25-years-to-life to eight-to-20-years. The new law also eliminates the maximum term of life for the most serious offenders.

Hundreds of non-violent drug offenders serving long sentences will now be reunited with their families and given a second chance at a drug-free life.

Think about it. How often have libertarians helped spring from prison those convicted of imaginary crimes? Ask Martha Stewart.

I testified twice before the New York State Legislature in opposition to the Rockefeller Laws. Here is my 1993 testimony before the State Assembly Codes Committee.

Mr. Chairman, thank you for allowing our organization to participate in these hearings. I appear on behalf of New Yorkers for Drug Policy Reform, a new organization whose members have diverse views on drug policy, but are united by the belief that the enforcement approach to the drug problem has failed.

I approach this topic from three different perspectives. First, I have lived or worked in high-crime cities like Buffalo, Newark and New York, and have been victimized by crime several times.

Second, I am a criminal defense lawyer who sees the criminal justice system in operation on a daily basis. Finally, I am a researcher who has written several reports examining the costs and consequences drug prohibition.1

The purpose of this hearing is “to elicit comments on the drug laws to determine their effectiveness in dealing with the drug problem.” There are two answers to that question, depending on what is meant by “the drug problem.” If by “drug problem,” the Committee means the tendency of human beings to use chemicals to alter their consciousness, I think it is clear that the drug laws are largely ineffective.

There has always been and will always be a small percentage of the population that would prefer heavy drug use to the types of social and recreational activities most of us endorse. Experience has shown that law enforcement, no matter how aggressive, cannot separate these people from their drugs of choice. An acquaintance of mine was a prison guard in Attica, which as you know, is a maximum-security state prison. He regularly observed inmates sniffing cocaine in the prison yard. If drugs cannot be kept out of prisons, how can they be kept off the streets?

Extremely tough drug enforcement will inevitably break down for the simple reason that it will raise the price of drugs to astronomical levels, and thereby allow astronomical bribes to be delivered to the police. Who will guard the guardians?

Drug enforcement is doomed to fail by the sheer impossibility of preventing consenting adults in a free society from engaging in extremely profitable transactions involving tiny amounts of illegal drugs. Our experience with the Rockefeller Drug Laws confirms this. The Joint Committee on New York Drug Law Evaluation (“Joint Committee”), concluded in 1977 that the 1973 drug laws failed to reduce drug use in New York State.2

In the short run, of course, it is always possible to disrupt the flow of a certain illegal drug at a certain time and place. Every new prohibition and every new “Operation Pressure Point” will cause drug supplies to decrease temporarily because of the time it takes the black market to respond to the new market realities. The Rockefeller Laws had that effect on heroin dealers in the fall of 1973. Alcohol consumption was reduced in the early years of Prohibition, but it increased thereafter. But it is this very initial success which, by driving drug prices up, guarantees ultimate failure by giving drug entrepreneurs the incentive to get the drugs to market.

Prohibition is also doomed because users can substitute one drug for another. The Joint Committee concluded that, while the Rockefeller war on heroin was at its peak, “the illegal use of drugs other than narcotics [became] more widespread." During Prohibition, use of marijuana and ether increased. When narcotics were first outlawed, users switched to uppers and downers. Heroin users get drunk when supplies are low. When the DEA cracked down on marijuana in the early eighties, the use of cocaine increased. When a war on cocaine was launched in the mid-1980’s, users switched to heroin and LSD. The easy production of synthetic mind-altering drugs in makeshift home labs ensures that users will have access to a virtually limitless number of substitute drugs whenever necessary to ride out the latest drug crackdown.

So the answer to your question must be "No" — drug laws are not substantially effective dealing with the problem of heavy drug use.

Now, if the Committee means by “drug problem” such things as street crime, gang warfare, drug-related AIDS, and clogged courts and prisons, that raises an entirely different question. Are drug laws effective in dealing with this aspect of the drug problem? It is difficult to ask this question with a straight face because the drug laws are the cause of these problems in the first place.

Perhaps the best way to demonstrate that fact in a non-controversial way is to imagine that we are back in 1914 with no national drug control laws. In 1914, did any proponent of the Harrison Act argue that we need to prohibit the legal and inexpensive sale of drugs because America was racked by violent shootouts between dealers of illegal drugs? Of course not, because there weren’t any such dealers and there wasn’t any such violence. Did anyone argue in 1914 that we must ban legal drug sales because children were being hired as lookouts for crack houses? Of course not. There was no need for lookouts because selling cocaine was perfectly legal.

Did anyone argue in 1914 that we must crack down on legal drugs because users were gathering together in dank, dark alleys, sharing expensive and illegal needles and spreading AIDS? Of course not, because needles were legal, and since drug use was legal, there was no need to use drugs in secret hiding places, and since drugs were cheap, few people injected them anyway.

Did anyone argue in 1914 that we must ban cocaine because addicts were causing a crime wave by stealing money to buy cocaine for $100 a gram? Of course not, because cocaine was legal and cheap. After all, it was just an agricultural product.

Did anyone argue in 1914 that we must make drugs illegal because large numbers of minority youth in our cities were ensnared into a life of crime by the lure of fast and big money selling drugs? No, because there is no profitable black market when a commodity is legally and cheaply available.

In 1993, after five years in which critics of drug prohibition have had a chance to make their arguments, no one with the slightest degree of intellectual honesty can deny that the vast bulk of the problems the public associates with the term “drug problem” are in fact caused by drug prohibition and enforcement.

Prohibition creates the black market and is thus responsible for all the problems related to the black market like high drug profits to dealers, drug gangs funded by those profits, shoot-outs over turf, addicts who steal to pay for expensive black market drugs, HIV-positive addicts spreading the virus by sharing needles which are illegal and thus expensive, children selling drugs and acting as look-outs because they are subject to lower penalties than their adult comrades, police corruption, clogged courts and prisons, the creation of a criminal subculture in the inner city, the jailing and criminalization of large numbers of young minority males.

A visit to the arraignment part of any criminal court in the state gives you the feeling of what it must have been like in the South in Jim Crow days. Whites are in charge up front; in the rear sit mostly black and Hispanic males, many waiting for arraignment on drug charges.

Once it is understood that prohibition not only is ineffective in preventing drug use, but also creates out of thin air a whole new set of virulent social problems, the absurdity of our occasional drug wars becomes clear. If prohibition creates big problems, intensifying prohibition creates bigger problems. If drug prohibition caused plenty of street crime in the 1970’s, an expensive national war on drugs in the 1980’s caused a massive violent crime wave and unprecedented social decay, setting the stage for such breakdowns in civil order as the Los Angeles riot.

Drug policy in 1993 is at an impasse. No one is happy with the status quo. Escalating the drug war is doomed to failure because the drug problem increases in direct proportion to the level of enforcement. That leaves only one way out — de-escalate, move towards legalization.

With the logic of de-escalation so compelling, and the lack of any practical alternative so glaring, the only question that remains isu2014why are we so far from legalization? I doubt if a bill enacting legalization would get more than a few votes in either house and the Governor is strongly opposed.

I have thought about this problem for a long time. I believe that most people still oppose legalization, not because they can muster any cost-benefit data against it, or because they can rebut any of its main arguments, but, because they deeply oppose drug use on fundamental moral and religious grounds. Regardless of where and when it is done, and what the social consequences are, they just don’t want to live in a world where anyone is consuming drugs.

Unfortunately, millions of others have decided that they have no moral qualms about using drugs and they continue to do so despite society’s best efforts to stop them. The prohibitionist majority’s attempt to impose their values on the drug-using minority by force is the root cause of today’s drug problem.

In the past, our inability to tolerate the religious habits and practices of others led to eternal wars of religion. The only solution to those wars was to declare and enforce “freedom of religion.” Under freedom of religion, you didn’t have to agree with the religious practices of your neighbors; you just had to tolerate them. Freedom of religion, where it was observed, put an end to religious wars.

Similarly, the only solution to the drug problem and the drug war is to learn to be tolerant of those whose behavior we disapprove. The only real solution to the drug problem and the only real end of the perpetual drug war will come when we declare freedom of self-medication and ask the drug warriors to hang up their holsters and call it a career.

I am not optimistic that my suggestion will be adopted in this decade. But I am reasonably certain that there will be no drug war in twenty or thirty years because the war is at odds with logic, evidence, history, morality, and common sense. Unfortunately, we will only abandon the drug war when we can’t take it anymore, can’t afford it anymore, and when its continued existence threatens to destroy civil order.

We will ultimately abandon the drug war for the same reason the Russians abandoned communism in 1989 — they had no choice; they couldn’t take it anymore. Wouldn’t it be wonderful, if for once, instead of learning the hard way through decades of suffering, we could just imagine how bad the drug prohibition problem will become over the next twenty or thirty years, and imagining that horrible world of violence, corruption and advanced social decay, have the guts to end it today?

Wouldn’t it be wonderful if we had the guts to end it before we have to read one more headline like the one in Sunday’s New York Times: “2 FAMILIES SHATTERED BY BRONX SHOOTING: FUSILLADE KILLS BOY, 7, AND WOUNDS 2D (June 6, 1993). Then, we could spend those next thirty years recovering from the lingering ill effects of our seventy-nine year-old war on human beings who use drugs which are different from the ones we use.


  1. See, "Answering the Critics of Drug Legalization," 5 Notre Dame Journal of Law, Ethics S Public Policy 401 (1990); also published in Searching for Alternatives: Drug Control Policy in the United States, M. B. Krauss & E. P. Lazear, Eds., (Hoover Institution Press: Stanford, 1991); "The Moral and Practical Case for Drug Legalization," 18 Hofstra Law Review 607 (Winter 1990); "Thinking About Drug Legalization," Cato Institute: Washington, D.C., Policy Analysis No. 121 (May 25, 1989); also published in The Crisis in Drug Prohibition, David Boaz, Ed., (Cato Institute: Washington, 1990); "On Drug-Related AIDS and the Legal Ban on Over-the-Counter Hypodermic Needle Sales," Report of the Committee on Law Reform of the New York County Lawyers Association (March 1988); "Why Cocaine and Heroin Should be Decriminalized," Report of the Committee on Law Reform of the New York County Lawyers Association (August 1987).
  2. “The Nation’s Toughest Drug Law: Evaluating the New York Experience,” Final Report of the Joint Committee on New York Drug Law Evaluation (Association of the Bar of the City of New York: New York, 1977), p. 7.

January 1, 2005

James Ostrowski is an attorney in Buffalo, New York and author of Political Class Dismissed: Essays Against Politics, Including "What’s Wrong With Buffalo." See his website at http://jimostrowski.com.

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