Prohibition is an awful flop.
We like it.
It can’t stop what it’s meant to stop.
We like it.
It’s left a trail of graft and slime
It don’t prohibit worth a dime
It’s filled our land with vice and crime,
Nevertheless, we’re for it.
—Franklin P. Adams, New York World columnist, summarizing his opinion of the Wickersham Report of 1931, which called for stepping up enforcement of Prohibition
Many people have expressed outrage at the US government’s killing of people in boats leaving Venezuela with, allegedly, cargoes of illegal drugs. Others, including President Trump and his secretary of war, Pete Hegseth, have defended the killings. Trump and Hegseth argue that they are saving American lives by preventing deadly drugs from reaching the United States. If the boats were carrying drugs as, in some cases, seems likely, it’s not clear that they were headed to the United States. Even if they were, there are two important questions. First, is killing people carrying the drugs, rather than arresting them, justified? Second, should those drugs be illegal or should we instead allow a free market in drugs with restrictions on purchases by minors?
In this article, I address the second question. My answer is that the drugs should be legal for adults. If my answer is correct, then I have also answered the first question. If drugs should be legal, then there is no justification for killing people who transport them.
My case for a free market in drugs is both principled and pragmatic. The main principle is freedom. Because we own our bodies, we should be free to ingest whatever we wish, even if it can be harmful. But the drug war doesn’t destroy just our freedom to consume what we want. Fighting the drug war has led the government to restrict many of our other freedoms.
The pragmatic reason for legalizing drugs is that criminalizing the industry has caused many harms. Our experience with prohibition of alcohol for thirteen years has a lot to teach us, if only we’re willing to learn. Prohibition worked in the narrow sense of reducing consumption of alcohol but caused horrible side effects. It shifted alcohol production and distribution away from law-abiding citizens to hardened criminals; it reduced respect for the law; and it caused many deaths. Drug prohibition does the same. If drugs were legalized, they would be sold by law-abiding people who have an incentive to care about quality. Organized crime would exit the industry. And the deaths from gang wars, which often include deaths of completely innocent people, would end. Would legalization be problem-free? No. But the problems would tend to be for those who use drugs, not for those who are innocent victims.
But what about California and Oregon?
Two recent developments that have turned many people against legalization are the experiences with marijuana in California and drug decriminalization in Oregon. But the California experience actually shows that heavy regulation has bad effects. California’s Proposition 64 in 2016 legalized recreational use of marijuana. But economists Robin Goldstein and Daniel Sumner, in their 2022 book, Can Legal Weed Win?, showed that Prop 64 brought with it a heavy dose of regulation and taxation. They show the many ways that regulation and taxation have caused illegal marijuana to continue dominating the market. Retailers, for instance, are not allowed to sell marijuana after 10 p.m. My 2023 review of their book gives more details.
In Oregon, Measure 110 decriminalized the possession of small amounts of all drugs, starting in February 2021. There were short-lived bad effects on crime but no longer-run sustained effect. While unintentional overdoses rose relative to a projection, there is evidence implicating the effects of the COVID pandemic and the introduction of fentanyl in the spike in overdoses. “In this cohort study of fatal drug overdose and the spread of fentanyl through Oregon’s unregulated drug market,” reports one study, “no association between M110 and fatal overdose rates was observed.” This evidence apparently was not enough for the legislature, which voted in 2024 to impose criminal penalties for use of “hard drugs.” The voters did not get a direct say.
The war on drugs is a war on freedom
Those who advocate the US drug war often talk as if they think the US government is making a war on such psychoactive drugs as marijuana, cocaine, and heroin. But you can’t make a war on drugs any more than you can make a war on tomatoes. Both drugs and harvested tomatoes are inanimate objects. In any war that government officials choose to fight, they are fighting other people. The drug war certainly seems like a war: the US government uses guns and other weapons in the fight, as in the attacks on the boats out of Venezuela. An immediate question to ask, therefore, is: on whom is the drug war being waged?
The US drug war is being waged on some people in the United States and on some outside the United States, and, in the process is destroying some of our precious liberties. In “The Drug War on the Constitution,” a 1999 presentation at the Cato Institute, Yale Law professor Steven B. Duke laid out the many ways in which drug war was crimped our liberties.
Here are a few.
First, the right to be free from unreasonable search and seizure. Duke stated:
People may be stopped in their cars or in airports, trains or buses, and submitted to questioning and dog sniffs. Police may search an open field without warrant or cause, even if it has “no trespassing” signs and the police trespass is a criminal offense. They may also, as in Orwell’s 1984, conduct close helicopter surveillance of our homes and backyards. They may also search our garbage cans without cause. If they have “reasonable suspicion,” the police may even search our bodies. Mobile homes, closed containers within cars, as well as cars themselves may be searched without a warrant.
Moreover, noted Duke, the courts have cast the net wide in deciding what characteristics of a person and a person’s actions are grounds for reasonable suspicion in the drug war. He wrote:
Federal Circuit Judge Warren Ferguson observed that the DEA’s [Drug Enforcement Agency’s] profiles have a “chameleon-like way of adapting to any particular set of observations.” In one case, a suspicious circumstance (profile characteristic) was deplaning first. In another, it was deplaning last. In a third, it was deplaning in the middle. A one-way ticket was said to be a suspicious circumstance in one case; a round-trip ticket was suspicious in another. Taking a non-stop flight was suspicious in one case, while changing planes was suspicious in another. Traveling alone fit a profile in one case, having a companion did so in another. Behaving nervously was a tip-off in one case, acting calmly was the tip-off in another.
Second, the right to private property. Although the Fifth Amendment of the Constitution guarantees that no person shall “be deprived of life, liberty, or property, without due process of law” and that private property shall not “be taken for public use without just compensation,” these guarantees are routinely ignored in the drug war. Under the asset forfeiture rules, the government often seizes property that government officials simply suspect was used in a drug crime. No one need be accused, let alone convicted, of a drug crime for the government to seize their property. Duke pointed out that in 80 percent or more of drug forfeitures, no one was ever charged with a crime.
Third, financial privacy. People who engage in cash transactions of amounts in excess of $10,000 must file forms with the federal government. This regulation was introduced by the Nixon administration as part of its attempt to fight the drug war. The federal government also has wide powers to snoop in your bank account, and part of the justification for these powers is that it they are needed to fight the drug war.
Fourth, the right to a fair trial. In most drug prosecutions, noted Duke, the trial judges do not write opinions explaining and justifying their rulings. Therefore, the defendants in such cases rely on the appeals courts to assure that the trial was fair. Yet, noted Duke, many appeals courts routinely uphold long criminal sentences for drug convictions. Duke found that there is little reason to believe that appellate judges even read the briefs brought by the defendants. One Supreme Court justice once told Life magazine, “If it’s a dope case, I won’t even read the petition. I ain’t giving no break to no dope dealer. . . . ” The justice who said this was one who was generally thought of as being strong on civil liberties. His name: Thurgood Marshall.
In short, a serious war on drugs requires a serious war on freedom.
The pragmatic case against the drug war
There’s a reason that the government has intruded so much in our personal lives in order to fight the drug war. The reason has to do with a simple but powerful principle in economics: the principle that both sides gain from exchange. The drug war is fought against people who produce, buy, and sell drugs. The buying and selling are voluntary exchanges in which, however unwise some of us might think the participants are, both sides gain from exchange. Therefore, both sides want to conceal the typical exchange from the government. This is very different from many of the other criminal laws that government enforces—laws against rape, murder, theft, etc. In all those cases, someone loses and therefore has an incentive (or, in the case of murder, the person’s friends and relatives have an incentive) to give information to the police so that the criminal can be caught and prosecuted. But because both sides want to conceal the drug exchange, the government, if it wants to crack down effectively, is driven inexorably to intrude into people’s private lives.
That brings me to the pragmatic case against the drug war. The bitter irony is that most problems that people attribute to drugs are actually not due to drugs but are due to the drug war. I’ll mention four.
First is the high price of drugs, which tempts many drug users to steal to support their habit. The high price is due to the fact that the drugs are illegal and, therefore, suppliers, to be willing to supply, charge a risk premium. Using ChatGPT, I compared prices at each stage of production and distribution for two exports from Colombia, both of which are or contain drugs: cocaine and coffee. In about 2000, the price of cocaine at the farm gate in Colombia was $650 per pure kilogram; at the retail level it was $120,000, an increase of 18,461 percent. For coffee, the price at the farm gate was 2.05 euros per kilogram; at the consumer level it was 9.71 euros per kilogram, an increase of 374 percent. If cocaine were legalized, a good estimate is that the markup to the consumer would be comparable to the markup for coffee, making for a price of $3,081 per pure kilogram. That is over 97 percent below the price in the illegal market. Almost no one would feel the need to steal to support a cocaine habit.
Second is the innocent people killed in the drug war crossfire. Because drugs are illegal and the penalties for being in the industry are very high, the illegal drug industry attracts criminals. Competition between rival drug “firms” is often cutthroat, literally. In the wars between these firms, many innocent people are killed. If drugs were legal, competition would be on price, quality, and convenience, just as for any other good. When Prohibition ended in 1933, organized crime left the liquor industry—and so did violence.
Third, people dying from overdoses or from foreign substances used to dilute the drugs. Because the drugs are illegal, no one in the business can use advertising to establish a reputation and brand name. A drug supplier that did use advertising would quickly find himself not only out of business but also under arrest. For that reason, suppliers of illegal drugs can’t have brand names for their drugs that are at all comparable to the brand name for Coca-Cola. Therefore, there is much less incentive to provide a known quality product.
A related point is that drug prohibition also increases potency. In “The Economics Behind the US Government’s Unwinnable War on Drugs” (Econlib, July 1, 2013), economist Benjamin Powell wrote:
When drugs are illegal, they become more potent. In order to minimize the risk of detection per amount of narcotic supplied, suppliers make drugs as small and light as possible. This means higher potency. Economist Mark Thornton has found that increased federal expenditures on interdiction explain 93 percent of the increase in marijuana’s potency.
Powell also wrote:
The net effect of prohibition on drug users is, at best, to decrease consumption while making the consumption of the remaining drug users much more dangerous because their purchases are more potent and less predictable. This is borne out in the data on deaths from drug overdoses. From 1971—two years before the creation of the federal government’s Drug Enforcement Administration and Nixon’s declaration of the war on drugs—to 2007, the rate of death from a drug overdose per 100,000 total deaths increased by a factor of ten (italics added).
If our concern is with the deaths that drugs cause, we should not forget to keep that concern in mind when we examine the deaths that the drug war causes.
Fourth, children being involved in the drug trade. I believe that this first happened in a big way in New York state in the early 1970s, after Governor Nelson Rockefeller drastically increased the penalties for drug dealing. Criminals then recruited teenagers because the penalties for underage drug dealers were lighter.
In short, much of the damage done by the drug war is borne by innocent people who have no role whatsoever in the drug industry. The major virtue of drug legalization is that most of any harm that drugs like cocaine, heroin, fentanyl, and marijuana cause is to those who voluntarily choose to use them. In economists’ jargon, the drug war creates large negative externalities, whereas in a society where drugs were legal, much of the harm from drugs is internalized.
A note on risk
Most of the arguments people make for keeping certain drugs illegal rest on the risk to the user. There are two relevant points to make.
First, before the Harrison Narcotic Tax Act of 1914, marijuana, cocaine, and heroin were all legal. Some of these drugs were widely used. Yet there was no drug epidemic with these drugs. Second, most people favor allowing activities that are much riskier than the consumption of drugs. Google “the fatality rate in climbing K2” and you’ll learn that historically, fatalities have been about 23 to 25 percent of successful climbs of that peak. Yet the vast majority of people seem to accept that climbers have a right to take this risk.
Milton Friedman’s plea
In 1989, in an open letter to Bill Bennett, Hoover scholar Milton Friedman wrote a plea to end the drug war. At the time, Bennett was the director of the Office of National Drug Control Policy under President George H. W. Bush. Friedman wrote:
You are not mistaken in believing that drugs are a scourge that is devastating our society. You are not mistaken in believing that drugs are tearing asunder our social fabric, ruining the lives of many young people, and imposing heavy costs on some of the most disadvantaged among us. You are not mistaken in believing that the majority of the public share your concerns. In short, you are not mistaken in the end you seek to achieve.
Your mistake is failing to recognize that the very measures you favor are a major source of the evils you deplore.
Friedman ended his letter as follows:
This plea comes from the bottom of my heart. Every friend of freedom, and I know you are one, must be as revolted as I am by the prospect of turning the United States into an armed camp, by the vision of jails filled with casual drug users and of an army of enforcers empowered to invade the liberty of citizens on slight evidence. A country in which shooting down unidentified planes “on suspicion” can be seriously considered as a drug-war tactic is not the kind of United States that either you or I want to hand on to future generations.
Back then it was shooting down airplanes; now it is bombing boats. How about not shooting down planes or bombing boats? Instead, let’s consider re-legalizing currently illegal drugs.
Note: The thinking and conclusions in this article are those of the author and do not necessarily represent the views of the Hoover Institution.
