Prohibition Revisited

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Substance abuse
is widely regarded as one of the foremost scourges of mankind. No
doubt the human toll is great. Tobacco, alcohol, marijuana, cocaine,
heroin, etc., altogether or separately, are frequently put in the
same class of abominations as weapons of mass destruction including
firearms and poison gas. Thus arises the urge to prohibit these
agents by resorting to legislation against production, sale, possession
and use. The government thereby empowered must then appropriate
the huge sums and resources for enforcement commensurate with the
"threat."

If the cause
is so righteous and the consequences are so clear, why doesn’t such
government work? It has been tried before (Prohibition Amendment,
U.S. Constitution Article Eighteen, 1920) with the same sad results
as nowadays. The "cure" is always worse than the disease
— if indeed prohibition could ever qualify as a cure for any social
"disease" any more than a hammer could qualify as a cure
for a headache.

A clue to understanding
such futile gestures and the debacles that follow them is the recognition
that the harm of substance abuse is fundamentally self-inflicted
by the individual acting entirely on his own recognizance. It is
not like an injury caused by aggression by one on another or other
such social assault against which an appeal to government for an
organized defense might be considered rational. Another clue is
that substance abuse, actual or imagined, is only an offense against
the moral sentiments of some righteous people who believe a social
apparatus of coercion can take such matters from their sight and
mind and make the world "right" in their view. Such sentiments
are not unlike those that buttressed the Spanish Inquisition in
medieval times.

Aggressive
or even brutal behavior is frequently associated with substance
abuse even though a snort is more likely to produce a vegetable
than a fiend. Aggression is more likely to be the consequence of
legal efforts to enforce a ban on certain volitional acts, not a
result of individual chemical intoxication. As long as the banned
substances are in wide demand from individuals inclined to experience
the effects of their use, supplies will come forth. Substance abuse
will happen and legal prohibition will be powerless to prevent it
because prohibition cannot achieve abstinence in an open society.
It can not even achieve abstinence in jails and prisons where drug
use is well known to be rampant even though government supervision
of that population is supposed to be total and absolute.

Contrary to
purpose, prohibition may actually make the forbidden practice even
more attractive for some. For example, in 1920 following the passage
of the Eighteenth Amendment prohibiting the manufacture, transportation
and sale of intoxicating beverages, per capita consumption of alcohol
actually increased. Coincidence? Not likely. If prohibition is sound
public policy, reduced per capita consumption should have correlated
with its implementation. Actually, experience with every known prohibitory
campaign of government has produced precisely the opposite result.
Yet, such policies continue to be popular notwithstanding the incidence
of the social conflict that does correlate with them.

No doubt a
certain amount of substance abuse is refractory, intractable or
incurable except by the death of the abuser. This is evidently an
aspect of human nature just as a certain incidence of police brutality
will doubtless always occur given the inclination of some to abuse
the powers of their office. It is also apparent that some people
are like prize fighters who care less what their faces look like.
They will flout proven proscriptions for rational behavior and exploit
such human foibles for personal gain. Thus, the strong correlation
of black market activity and police corruption with the enactment
of prohibitory statutes should not surprise anyone.

Look at the
history of prohibition under the Eighteenth Amendment, the previous
high-water-mark of moralistic legislation. Formerly, booze was an
ordinary and traditional commercial product widely used for both
recreational and medicinal purposes but well known to have some
hazardous properties when overindulged. Various temperance leagues
had long admonished the public against “demon rum."

Historically,
spirits distilled from fermented grain (grain alcohol or ethanol)
was an economical medium for the pioneers to get their surpluses
of corn from the frontier over the Appalachian Mountains to markets
in the coastal cities. Then, as now, there were cases of liver disease
and other ailments attributable to excessive and long-term debauchery
along with some poignant examples of family neglect and abuse. No
doubt there were occasional social insults due to individual binges.
Then as now, every family, regardless of its moral tradition, has
experienced the effects of alcohol abuse on the part of one member
or another. Alcoholism has long been a familiar disease.

Before prohibition,
“good booze” had always been cheap and readily available. Curiously,
the abuse of booze in those days was strictly a problem of adulthood
even though sale to minors was permissible. The merchants who made,
distributed and sold booze were largely good citizens as were most
of their customers. Although recreational consumption was tolerated
if not embraced by most people, a few were outraged by the very
idea of intoxication. The American temperance movement, rooted in
Puritanism, was the classical moralistic cause.

After the prohibition
amendment came a blizzard of statutes and ordinances during the
1920’s. Traditional consumption habits changed only to the extent
necessary to accommodate the new patterns of distribution, price
levels and standards of quality that accompanied the new legal risks
pertaining thereto. However, those risks presented something of
an exciting challenge to young folks who formerly left boozing to
their parents, grandparents and bachelor uncles.

Moreover, the
younger generation didn’t know the difference between “Old Tennessee”
and “old tennisshoe,” which made it somewhat easier for a new class
of merchants to enter the market. Even more fortuitous for the new
liquor “merchants,” the good-citizen merchants formerly involved
in the trade left the field under legal compulsion and went into
other lines of business regardless of their preparation. Few made
the transition successfully. Fewer still persevered merchandising
booze in the face of legal sanctions against the business. Thus,
the ban only worked on the good-citizen merchants who were easily
persuaded to abandon their businesses under threat of punitive sanction.
They were unaccustomed to taking bold risks with the law and were
mostly too old to start.

After prohibition
ordinances went into effect, the popular demand for booze submerged
into an underworld (black) market but grew nevertheless. To “drink
wet and vote dry” was the course most would take. Thus, hypocrisy
was institutionalized. It is doubtful that many tipplers actually
stopped drinking as a result of prohibition, but it is clear most
of them started lying about their habits.

If there is
an urgent demand for some commodity — and booze was and is one for
which there is an urgent demand — then nature ordains that that
demand will be served with a supply of some sort. Where home-brew
and moonshine had been unknown, “bootlegging” by opportunistic and
sociopathic gangs would fill the gap. Unlike their merchant predecessors,
these gangs were willing to take the risks of punitive enactment
in return for the large financial margins that were facilitated
thereby. Overnight, the law created a niche market for gangsters
whose main talent was skirting the law, not in making "quality"
booze and economically distributing it. Community consciousness
went out the window. The law created an underworld memorable for
its cynicism, greed, viciousness and promiscuity. Sound familiar?

Given the demand
and the futile nature of the ban, large profits were amassed on
the sale of "bad" booze. Then, along with the well-known
hazards of tippling grain alcohol, there would be a high incidence
of acute and systemic poisoning from alien chemical agents, not
to mention all the antisocial behavior of the new “merchants” (the
gangs) and their clients. And all the while, there were the large
costs of law enforcement to be borne by whom — the good citizen,
of course.

Naturally,
some of these illegal profits (meaning untaxed proceeds) went into
other businesses as a hedge against the risk forfeiture. Some of
the hedges were legal. However, the larger part went to protection
and lobbying efforts. Law enforcement officials were corrupted with
bribes. Legislators were corrupted with payola for a continuation
of prohibition. None was ever applied to remedy the effects of blindness,
death or other injuries caused by the defective products and activities
of the gangs. What a contrast with the “good old days” of free-market
booze when the merchants accepted responsibility for the quality
of their products and liability for any injuries caused by their
failure to meet the standards of good behavior and product. From
this it seems clear that, whatever the sad consequences to individuals
of substance abuse, the scourge of prohibition was incomparably
worse in social institutions.

It is widely
believed that prohibition ceased in 1933 when the Twenty First Amendment
was passed repealing the Eighteenth. This event, generally credited
to president-elect Franklin D. Roosevelt, supposedly ended prohibition.
But nothing could have been farther from the truth. Although, the
Twenty-First legalized the sale of alcoholic beverages nationally
subject to government regulation and taxation, it sanctioned prohibition
by state and county option thereby protecting the rackets. In effect,
the rackets were federalized, enabling the government to participate
in the lucrative liquor trade formerly the exclusive province of
the privateers. This stratagem also gave the privateers a legal
faade for their operations in return for paying taxes on their
formerly illegal income. Some, like Joe Kennedy, Sr., welcomed this
new legitimacy and proceeded to enter politics with their bootleg
liquor fortunes intact. Who could better administrate prohibitory
public policies? — “it takes one to know one.” Anyhow, enforcement
rarely occurs as long as the traffickers pay their taxes. Thus the
government itself became a protection racket.

This change
in the legal environment also gave the authorities a powerful new
enforcement tool. Where formerly it had been a difficult process
to convict a producer, trafficker or user entitled to the Bill-of-Rights
protections for individuals accused of illegal acts, under the new
regulatory regime equipped with the relatively new Sixteenth Amendment
(income tax) powers, it became a simple matter to prosecute most
of the usual offenses as tax evasions. Since tax evasions are treated
as crimes against the state, such offenders could be handled like
those indicted for treason where accusation is tantamount to conviction.
Under the new environment, citizens would find themselves confronting
a government as would a married man confronted by his boss who is
asking “when did you stop beating your wife?” All are suspect of
wrongdoing.

Under this
new regime, those accused of tax evasion could not readily resist
self-incrimination. One consequence of the Sixteenth Amendment was
that all residents would be compelled by law to declare the amounts
and sources of all their income, however derived, and pay the prescribed
tax accordingly. Failure to declare, in itself, would be a felony
offense against the government. Not to declare truthfully would
be another felony. For a black marketeer, to comply with such legal
obligations would be tantamount to confessing guilt to yet another
crime; namely, engaging in legally-banned activity. So shall the
vaunted American protection against self-incrimination be ended
without a whimper of protest.

Since the establishment
of the income tax by constitutional amendment, most major convictions
involving trade in outlawed goods and services have been on tax-evasion
charges. The recent State and Federal trials of Heidi Fleiss on
pandering and trafficking charges are good examples. For another,
had David Koresh lived through the siege of the Branch Davidians
by agents of the Bureau of Alcohol, Tobacco and Firearms (BATF)
at Waco, Texas, it is likely that he would have been prosecuted
and doubtlessly convicted for tax-evasion rather than any of the
firearm, substance or sex crimes alluded to in the warrant the BATF
attempted to serve on him.

Old-fashioned
alcohol prohibition continues in some form or other everywhere to
this day. For example, in the “dry” state of Mississippi, more taxes
are collected on the sale of out-lawed alcoholic beverages than
from any other source, and the Mississippi State Tax Collector is
the highest paid public official in the country. This may be the
most blatant but it is certainly not the only example of official
hypocrisy in the country.

Regardless
of the constitutional standing of prohibition, it continues virtually
in full force and effect in the legislative practices of national,
state and local governments, and it has spread far beyond the sphere
of alcoholic beverages. For all practical purposes, the Constitution
now supports this moralistic notion of government because the Supreme
Court has, contrary to American tradition, gone along with the zealots.
So-called protection of the public via prohibition of private victimless
activity is now considered a legitimate function of government.
One wonders what Ben Franklin would say to this state of affairs.
Reflecting on the matter, Will Rogers quipped to a distressed taxpayer
“just be glad you don’t get all the government you pay for.”

Both gang rule
and political corruption have spread in parallel with the growth
in number and scope of protectionist statutes. The prohibitory impetus
behind such legislation is no longer limited to substances such
as alcohol. Drugs make a good case in point because of their phenomenological
similarity with alcohol even though it is no longer necessary for
anti-drug legislation to express the Puritan faith in outright legal
prohibition as in the Volstad Amendment of 1920. The many new angles
to government regulation serve the aims of protection-minded people
as well or better. Nevertheless, the end result is the same — anarchy.

The legitimacy
of legally prohibiting mind-altering drugs is rarely brought to
question nowadays. The war on drugs, widely supported as a “government-do-something”
measure, has been internationalized in part because the “good stuff”
is produced at such distances from the centers of demand. The former
hegemony of immigrant “family” criminal syndicates, originally founded
on the basis of trade in beverage, gaming, sex and labor contraband,
has now been overrun by international drug cartels (ostensibly run
by foreigners) that have succeeded in dominating not only the local
syndicates but also the local and national law enforcement organizations.

The drug cartels
may even control some national governments such as Mexico, Panama,
Venezuela, Cuba, Colombia, Thailand, Turkey, Russia and perhaps
even China, Viet Nam and North Korea. Regardless, the drug cartels
are shaping both the domestic and foreign policy of the U.S. Government
funded by both the American drug user and taxpayer when they are
not indeed one and the same. The various governments, including
especially the one in Washington, D.C., lust for control of this
huge untaxed trade and capital flow. As Jesse Unruh, long-time boss
of the California State Assembly and one of the world’s foremost
political authorities once said in a rare moment of candor: “Money
is the mothers-milk of politics.” Clearly, the government’s interest
in actual drug abuse is mere window-dressing. To paraphrase another
political truism: “It’s the money, stupid!”

A curious aspect
of prohibitory legislation is how it helps criminal organizations
create monopolies in selected commodities and services. Like booze
during the so-called prohibition era, drug distribution is “protected”
from competition from law-abiding segments of the greater market
economy while the habits and obsessions of the mostly American users
remain. The drug-running profits become grotesque but so do the
budgets of the “anti-drug” agencies. Meanwhile, the private citizens’
costs mount from the systematic antisocial behavior of the mostly
young unemployed but opportunistic members of the so-called American
underclass, who handle much of the retail drug trade and take most
of the legal risk (look at the jail population). However, they are
well paid on the street by ample drug price margins. Observe all
the gold chains, fancy clothes and expensive cars sported by many
youngsters in the inner cities. Mama’s welfare check, no matter
how generous, could not possibly cover such conspicuous consumption.

Now armed for
a righteous crusade, the government enforcement agencies that concern
themselves with the legally banned businesses engage more and more
frequently in ambitious but senseless brutalities. As happened with
alcohol prohibition, the young and restless are attracted to experiment
with the banned substances if only to experience the excitement
of flirting with danger, legal as well as toxic. Many of the same
are attracted to “trafficking,” unemployable as they are at any
comparable wage because of legal constraints (child labor, truancy,
minimum wage, etc.), lack of preparation (skill, know-how, literacy,
etc.) and attitude (entitlement sloth, parental neglect, peer pressure,
etc.).

The actual
toll on human life and welfare from drug abuse itself is insignificant
by comparison with the consequences of legal prohibition. The former
would actually be minimal if the stigma of illegality did not impair
employment opportunity or access to medical care or justify incarceration.
The latter turns government toward predation and corruption. Who
can say what that costs?

So where is
the reason? Clearly, prohibition cannot protect the innocent from
the lawless. Even more clearly, it cannot protect the substance
abuser from himself or his tormentors. But it can definitely protect
the positions of the gangs, syndicates, cartels and enforcement
bureaucrats. Oddly enough, drug prohibition has created lucrative
job opportunities for the street gangs of the inner cities. That’s
more than one can say for welfare, affirmative action and other
ill-conceived government experiments in social engineering. No one
rationalizes prohibition on that basis even though this perverse
form of government social activism may well be its only redemption.

As for the
self-righteous and sincerely moralistic supporters of this regime,
they have to be deaf, dumb and blind to ignore their complicity
in such social travesty. But perhaps they see life on earth as a
dreary purgatory and believe that adherence to moralistic notions
demanding forceful compliance by others will earn them a glorious
place in some imagined hereafter. Without any doubt, legislation
mandating their moral outrage against the vices of others has wrought
great havoc with the entire social fabric of this country. Intolerance
toward a little human weakness and self-inflicted injury becomes
a total outrage against all of humanity when that intolerance is
institutionalized by government.

The moralists
should be ashamed to have abandoned the tolerance for people of
ordinary virtue their religion professes to teach. And, they cannot
be very proud of their beliefs when they form political interest
groups and put themselves in league with the underworld.

Realistically,
there is a market for recreational drugs as well as ethical drugs.
No way can legislation abolish this fact of life. Abusive use occurs
in both arenas. All users are potential abusers just as all eaters
are potential gorgers. Shall food-stuffs be banned because of the
incidence of bulimia?

All users are
vulnerable not only to the familiar drug but also to alien substances
that may contaminate it. Consistent drug products of the sort in
demand are basically inexpensive generic commodities which if sold
“over the counter” would be cheap low-margin products like aspirin
and saccharin. Indeed, in a free market, most popular narcotics
might be even cheaper than aspirin because they are common derivatives
of naturally-occurring plant species rather than proprietary chemical
synthetics. Under such circumstances, who would need runners and
pushers? What would be the purpose of armed pickets and enforcers?
Is it conceivable that some Colombian gangs working out of primitive
laboratories concealed in the equatorial jungle could successfully
compete with the modern multinational pharmaceutical companies in
an open market?

It is conceivable
that the drug profit margins attainable in open competition might
not even support the kind of promotion given to snuff and other
tobacco products that have brand distinction. Without the cover
of illegality, the drug cartels would find themselves competing
with ordinary businesses in ordinary channels of trade. Their cash
bubble busted, the street gangs and other pushers would then be
looking for other lines of work. So also would a lot of jailers,
DEA’s, ATF’s and other bureaucrats, foreign and domestic. Could
they and their methods survive in an open, competitive world? I
doubt it! Could the addicts survive? Possibly. At least they would
have improved access to medical assistance and a more manageable
cost of living. And what of society? Why should the sober be inflicted
with the hangover pains of the promiscuous? Why indeed!

Many
otherwise rational thinkers despair — that society could not survive
a transition from prohibition to a free-market in substances. No
doubt, a relaxation of punitive enforcement activity would be accompanied
by increased consumption at first to slake the pent-up thirst for
too much of a “good” thing. One consequence might be a sudden increase
in lethal overdose cases. But these transients would soon moderate
as the veil of furtive adventure is lifted to reveal the true hazards
of indulgence and as competition dispenses with the intense, dedicated
and lucrative rackets that presently cultivate the habits of the
obsessed. Meanwhile, billions of taxes can be foregone (wealth left
in the hands of those who produced it) as enforcement and “correctional”
institutions wind down. This leaves more resources for self-help,
medical and other therapeutic and remedial measures to be implemented.

April
28, 2008

Al
Lowi (send him mail) has
been a professional engineer in private practice in Rancho Palos
Verdes, California, for the past 40 years.

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