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