Thinking Seriously About Alternatives to Drug Prohibition. Part 1

Introduction

FOUR YEARS AFTER THE NOTION of drug legalization reemerged into public view, the time has come to step back and evaluate what it is all about and where it should be headed.(l)I cannot help but write as one who has become closely identified with the notion, but I also write as one who has tried to step back from the debate over drug legalization and analyze critically its contributions, missteps, and potential to beneficially redirect drug control policies. My principal interest lies not in the debate itself but in the future of psychoactive drug use and drug control policies in the United States and abroad. This article is thus not a response to the many critics of drug legalization, nor even a dispute with those who have favored the notion with somewhat different arguments and suppositions. It generally refrains from repeating the well documented costs of drug prohibition or the reasons why we need to consider alternative approaches.(2)And it pays scant attention to the political context of the debate or the political future of drug control policy. Its objective, rather, is to create and advance a more informed and sophisticated public discourse about alternatives to drug prohibition--one that breaks free from the intellectual and moralistic confines of contemporary prohibitionist norms.(3)

My specific objectives are fourfold. The first is to identify and examine the essential differences that separate those in the reasonable middle ground of the debate. The second is to offer new ways of thinking about radical alternatives to current drug prohibition policies, to identify the sorts of questions that must be asked, and to suggest how they might be addressed. The third is to provide evidence in support of the proposition that even a radical decriminalization of drug prohibition will not result in the sorts of dramatic increases in substance abuse that self-identified critics of drug legalization fear. And the fourth is to propose a drug regulatory model that eliminates many of the worst consequences of drug prohibition without reproducing the unfortunate consequences of our alcohol and tobacco control policies.

Many of the ideas and arguments presented in this paper were proposed and developed in meetings of the Princeton Working Group on the Future of Drug Use and Alternatives to Drug Prohibition. This group, composed of eighteen scholars representing more than a dozen disciplines, is currently pursuing each of these four objectives. This article should thus be read as a synopsis of a collaborative work-in- progress, the final version of which will be completed in late 1993. I anticipate that many of the ideas advanced below will be revised and refined as the working group proceeds.

The "Legalization" Label

To legalize or not to legalize? That, as two pairs of drug policy skeptics have recently written, is not really the right question.(4) The appropriate question is much broader, and it is one that incorporates the "legalize or not" question with respect to particular psychoactive drug products: What, simply stated, are the best means to regulate the production, distribution, and consumption of the great variety of psychoactive substances available today and in the foreseeable future? For a variety of reasons, the efforts of myself and others to answer that highly complex question have been captured by the label of "legalization."The term itself proved immensely successful in drawing the attention of tens of millions in the United States and elsewhere to what was at once a radical sounding but quite sensible critique of American drug control policies. But it exacted a stiff price with its implication that the only alternative to current policies was something resembling current US policies with respect to alcohol and tobacco. Few of those publicly associated with legalization in fact advocated such an alternative, but the misimpression has stuck in the public mind.

Legalization has always meant different things to different people. From my perspective, it has been first and foremost a critique of American drug prohibitionist policies which stresses the extent to which most of what Americans commonly identify as part and parcel of "the drug problem" are in fact the results of those policies. The failure of most Americans to perceive the extent and content of this causal relationship, and to distinguish between the problems that stem from the misuse of drugs per se and those that stem from drug prohibitionist policies, remains the single greatest obstacle to any significant change in American drug control policies. The recognition of this causal relationship does not, it should be stressed, lead automatically to a public policy recommendation that all of drug prohibition be abandoned. But it does suggest that alternative policies less dependent upon prohibitionist methods are likely to prove more effective.

Legalization also implies a set of policy objectives at odds with the government's proclaimed objectives of fighting a war against drugs and creating a drug-free society. Any drug control strategy, I and others have argued, should seek to minimize both the negative consequences of drug use and the negative consequences of the policies themselves. This is as true of public policies with respect to alcohol, tobacco, and caffeine as it is of policies directed at limiting the misuse of cannabis, cocaine, amphetamine, opiates, hallucinogens, and all other drugs. It is imperative, for instance, that any drug control policy distinguish among casual drug use that results in little or no harm to anyone, drug misuse that causes harm primarily to the consumer, and drug misuse that results in palpable harm to others, and then focus primarily on the last of these, secondarily on preventing the misuse of drugs, and little if at all on casual drug use. It is also imperative that any drug control policy be assessed not only in terms of its success in reducing drug abuse but also in terms of its direct and indirect costs.

Implicit in the legalization critique of American drug control policies are in fact two different types of arguments. At one level, it points out the ways in which drug prohibition per se is responsible for many drug-related problems. By criminalizing the production, distribution, and use of particular drugs, drug prohibition fundamentally transforms the nature of the drug markets, the ways in which people consume drugs, the lenses through which much of society views the drug problem, and the range of policies deemed appropriate for dealing with drug abuse. On another level, however, the critique advances a far more modest claim, which is that there are better and worse types of drug prohibition, with the Dutch "harm reduction" approach epitomizing the former and the American "war on drugs" the latter. Indeed, for many of those characterized as advocates of drug legalization, the Dutch model offers an alternative that is preferable not only to current US policies but also to the extreme libertarian model. The ideal set of drug control policies, from this perspective, can be found somewhere between the Dutch example and the libertarian model.

The harm reduction (or harm minimization) approach emerged in the Netherlands and Great Britain during the 1970s and early 1980s. It has since become increasingly influential both in those countries and in other parts of Europe and Australia as public health and other officials have recognized the need for more innovative and less punitive policies to stem the transmission of the HIV virus by illicit drug users.(5) Harm reduction policies seek to minimize the harms that result from illicit drug use. Rather than attempt to wean all illicit drug addicts of drugs by punitive means, harm reduction policies begin with the acknowledgment that some users cannot be persuaded to quit. These policies then seek to reduce the likelihood that they will contract or spread diseases such as hepatitis and AIDS, overdose on drugs of unknown purity and potency, or otherwise harm themselves or others. Proponents of harm reduction policies typically favor an assortment of drug treatment programs including the use of methadone and other maintenance programs. They insist on the need for needle exchange programs. They recommend public health and community outreach efforts to maintain contact between health service providers and illicit drug users. And they demand that drug policies acknowledge, both in law and policy, the human rights of drug users. Also implicit in most harm reduction approaches is the notion of "normalization," which posits that the harms associated with illicit drug use are best minimized by integrating drug users into normal society rather than isolating them in separate clinics, pro-grams, markets, and neighborhoods.(6)

The relationship between the harm reduction approach and the notion of drug legalization remains ambiguous. Some proponents of the harm reduction approach vigorously oppose any broader trend toward disassembling the drug prohibition system. They are quick to point out that much of the opposition they have encountered stems from fears and perceptions that the harm reduction approach represents no more than a stepping stone to legalization. Others insist that a harm reduction approach taken to its logical and sensible conclusion would more closely resemble a legal regulatory regime than the current prohibition system. Any harm reduction approach, they argue, must reduce not just the harms to users but also the many other negative consequences of drug prohibition: the violence that accompanies illicit drug markets; the corruption of public officials; the de facto subsidy of organized crime; the incarceration of hundreds of thousands of people; the deprivation of individual liberties; and so on. All agree, however, that modest efforts to reduce the negative consequences of status quo policies are better than no efforts whatsoever.

Legalizers, Prohibitionists, and the Common Ground

The basic analysis advanced by most "legalizers" is remarkably similar to that advanced by those who have appeared as the most sensible, progressive, and nonideological among the prohibitionists. Both generally agree on the basic diagnosis of American drug prohibition, on the need to assess drug policy options in terms of their costs and benefits, and on the set of objectives noted above. The "progressive prohibitionists" largely acknowledge that casual drug use is not a problem in and of itself, and the legalizers grant that some policies designed to reduce overall levels of drug use may be effective in reducing the overall negative consequences of use. There is a shared recognition that many dimensions of the American war on drugs represent a form of overkill, that more modest criminal justice measures can accomplish the same objectives as successfully as the harsher measures, and that a more vigorous adherence to public health precepts and objectives will result in a superior mix of drug control policies. Both further agree that a dramatic expansion in the availability of drugs in society will likely increase the cumulative consumption of drugs. And both agree that it is important to draw distinctions among different drugs, and among different formulations of the same drugs, in designing drug control policies. Stated other-wise, few in either camp believe that marijuana, or coca tea, should be treated the same as crack cocaine.

This common ground is fundamentally at odds with the views expressed by the more conservative and reactionary prohibitionists. Articulated most vigorously by President Bush's first Drug Czar, William Bennett, this perspective has demonstrated no interest whatsoever in analyses of costs and benefits or in the need to minimize the negative consequences of drug control policies. Casual use of illicit drugs has been depicted as an immoral form of activity as well as a dangerous source of contagion requiring the treatment of users.(7) Social science research and public health precepts are of value only insofar as they conform with their ideologically based assumptions and policies. There is, in short, no room for dispassionate dialogue concerning any policy alternatives that do not appear tougher than what has been tried before.(8) Combining a penchant for punitive sanctions with a view of drug use best described as "pharmacological Calvinism,"(9) the reactionary prohibitionists have insisted that the only legitimate objective of drug control policy must be the elimination of illicit drug use.

The common ground is also at odds, albeit not quite so fundamentally-tally, with the conservative libertarian perspective on drug control.(10)For those libertarians who believe as an absolute matter of principle in the sanctity of individual sovereignty over property and the freedom of contract, no governmental controls on the commerce in drugs are acceptable no matter what the consequences. Other libertarians are more utilitarian in their thinking, placing their faith in the free market and assuming that the dual policy objectives would best be accomplished in the absence of governmental interventions. Less committed libertarians start from the same assumptions about the magic of the free market but acknowledge that modest governmental controls, particularly truth-in-advertising and labeling requirements, may be necessary to correct for the excesses and abuses that the free market invites. All of these libertarians tend to support the more civil libertarian commitments to individual privacy and freedom in the choice of one's lifestyle-- although they insist that freedom of con-tract includes the freedom of employers to insist upon drug testing as a condition of employment. Civil libertarians, by contrast, tend to regard the freedom of contract with less deference than the right to privacy. They are more apt to speak of a right to consume drugs,(11) and are more likely to integrate considerations of social justice and public health into their principles and policy calculations.

Putting aside the perspectives of the reactionary prohibitionists and the hard-core libertarians, there are two principal differences among the progressive legalizers and the progressive prohibitionists. The first reflects disagreements as to the weight that should be accorded to such values as individual liberty, privacy, and tolerance in calculating the costs and benefits of different drug control policies.(12) Most legalizers weigh these values heavily, with the more committed civil libertarians regarding them as absolutes that cannot be compromised and other progressive legalizers perceiving them as highly important but not inherently immune to some restraints. At the very least, most legalizers insist, the possession of modest amounts of drugs for personal consumption should not be the subject of criminal laws. The progressive prohibitionists are sympathetic to such values but accord them much less weight, both because they perceive them as under-mining efforts to reduce drug abuse and because they are more willing to defer to majoritarian opinion in defining and weighting them. Confronted with potential trade-offs between levels of drug abuse and levels of coercion directed at drug users and sellers, most legalizers are willing to concede modest increases in drug abuse levels in return for reductions in the numbers of those punished for using and selling drugs. Progressive prohibitionists, by contrast, are far more willing to limit individual liberty to the extent they perceive a potential gain in public health.

The second major difference of opinion involves the assessment of the vulnerability of the American population to the substantial increases in drug availability that would follow from any of the more far reaching drug legalization schemes. Where most prohibitionists can envision the possibility of a fiftyfold increase in the number of people dependent upon cocaine, and conclude that the future of the nation might well be at stake if cocaine were made as available as alcohol, most legalizers regard such estimates and predictions as the unsubstantiated folly of doomsayers.(13) Both agree that substantial research is required to better estimate this vulnerability, but the wide disparities are primarily a reflection of visceral fears, beliefs, and instincts regarding individual and collective human nature in the context of American society. Whereas most legalizers perceive, both instinctually and intellectually, ample evidence of a fundamental societal resilience, most progressive prohibitionists share with their more reactionary allies a fundamental pessimism regarding the susceptibility of American society to a dramatic liberalization of drug availability.

The roots of this viscerally based debate can be found in a related difference of opinions regarding the balance of power between psychoactive drugs and the human will. Prohibitionists typically see the balance favoring the former, with its potential to disrupt and destroy the lives of consumers. Legalizers, by contrast, emphasize the latter, with its assumption that the balance of basic human desires in most people effectively limits the destructive potential of drugs. For most prohibitionists, the relevant evidence includes the worst case examples of drug addiction and other abuse, the experiments on captive rats, monkeys, and other nonhuman animals to determine the addictive liability of different drugs, and the biological evidence of withdrawal symptoms in human beings following sustained consumption of particular drugs. Most legalizers, by contrast, focus on the less dramatic but more abundant evidence of casual and con- trolled drug use, insist that the "set and setting" of drug use are at least as important as the drug itself in determining whether a person becomes a drug abuser, and see the animal studies and biological evidence as less significant than the abundant historical, cross-cultural, and contemporaneous evidence of individual and societal resilience vis-a-vis all psychoactive drugs. ("Set is a person's expectations of what a drug will do to him, considered in the context of his whole personality. Setting is the environment, both physical and social, in which a drug is taken.")(14) Many prohibitionists seem to see some psychoactive drugs as possessed of powers akin to those of the Sirens whose alluring voices no man could resist. Most legalizers, by contrast, perceive such a notion as absurd. They find more persuasive the substantial evidence that most people (including children), given sufficient information, are unlikely to use a drug in the first place, that most of those who do try a particular drug tend either to stop shortly thereafter or to use it in moderation, and that even most of those who become addicted to a drug or otherwise misuse it, ultimately moderate or stop their use.

These differences, however, still leave abundant room for common ground on how drug control policies can be reformed in the short term. For even though the progressive prohibitionists share with their more reactionary allies a deep seated fear of greater drug availability, they lack the reactionaries' political and moral commitments to repressive policies. And even though most legalizers feel substantial revulsion for the more punitive prohibitionist measures, they recognize both the inevitability of, and the need for, some criminal justice accompaniments to any regulatory regime. The public health model, with its emphasis on reducing morbidity and mortality, appears to provide something of an ideologically neutral set of guidelines and parameters for working out a preferable set of drug policies-- although legalizers are wary of the totalitarian potential of a public health model taken to its logical extreme. Both legalizers and most progressive prohibitionists also perceive merit in the harm reduction policies developed by the Dutch as well as local authorities in England and Australia--even if they differ as to the extent to which those policies could be adapted to the American environment.

There is also a shared assumption, from which only the most libertarian of the legalizers dissent, that government does have an important role to play in shaping and improving the lives of its citizens. Where all sides differ is in their view of the appropriate means by which government should pursue this, with the progressive prohibitionists viewing criminal justice and other coercive mechanisms as perfectly acceptable and often efficient means and the progressive legalizers favoring less coercive measures ranging from education and voluntary treatment programs to broader provision of social services. There also is something of a consensus that the top priority of drug control programs should be to minimize the harm that drug users do to others, with the secondary priority involving the more traditional public health objectives of minimizing the harm that drug users, and especially children, do to themselves. But underlying even this consensus are differing assumptions regarding the appropriate reach of social control measures designed to detect and curtail the illicit use of drugs. Thus even among those who identify themselves as proponents of a "public health" approach to the drug problem, there are some who sympathize deeply with the legalizers but prefer to keep their more ideological, liberty-based, values out of their analyses, and others who see criminal justice sanctions and civil commitment laws as useful means with which to coerce drug users into treatment programs.(15)

The fact that legalizers and progressive prohibitionists have so much in common is significant for a number of reasons. First, it suggests that there is a basic framework of analysis, predicated upon systematic assessment of costs and benefits, that is regarded as intellectually legitimate by all serious analysts of drug control policy. The fact that the evaluation of the costs and benefits varies greatly depending upon one's ethical values and ideological assumptions does not negate this. Second, it suggests that the current framework and direction of drug prohibition policies in the United States are fundamentally at odds with any conceivable policy predicated upon either public health precepts or notions of harm reduction. Indeed, the only way to explain and justify many current policies is by reference to the fears, prejudices, and primitive moralisms of those who have transformed drug control policy into a modern version of an authoritarian crusade. Third, it suggests that the debates among the legalizers over the design and evaluation of alternative drug control policies may well be of interest to many who share neither all of the legalizers' values nor their visceral confidences.

The Drug Policy Spectrum

It should be clear by this point that drug legalization and drug prohibition do not represent simply radical alternatives to one another and that there is no single version of either one. Virtually all drug control policies incorporate elements of both prohibition and legal availability. Alcohol, for instance, is regarded as a legal drug but it is illegal to sell it to anyone under the age of twenty-one, illegal to drive while under its influence, and illegal, in many states and localities, to consume in public or to sell or buy except from government-controlled or government-licensed outlets. Many of the same prohibitions increasingly apply to cigarettes and other tobacco products. Nicotine gum, which is substantially less harmful than smokeable tobacco, cannot even be purchased over-the-counter. Cocaine and most opiates are typically regarded as illegal drugs, but both are prescribed by doctors, the former for nasal and dental surgery as well as (in a few cases) treatment of pain, the latter as a prescribed treatment for pain or, in the case of methadone, as an authorized alternative to illicit heroin. The distinction between legal regulatory policies and prohibitionist policies becomes even more obscure when one surveys the broad spectrum of alcohol control policies that have been employed around the world during the past century; the same is true of opiate control policies and, to a lesser extent, public policies directed at the control of most other psycho-active drugs.Nonetheless, one can distinguish between prohibition and legalization in at least two significant respects. The sharper distinction concerns whether or not a drug can be purchased over-the-counter, which is to say that it can be purchased legally by adults without first obtaining permission from a government agency or government- licensed agent such as a doctor. The more ambiguous, but equally important, distinction is between those policies that rely primarily on criminal sanctions to control the misuse of drugs and those that rely primarily on the informed choices of citizens as shaped by public health policies, regulatory structures, and honest drug education.

It can be useful to think about alternative drug control policies as arrayed along a spectrum, with the strictly prohibitionist and highly punitive at one end, the unregulated free market at the other end, and a wide array of regulatory policies in the middle. It requires minimal insight, moreover, to recognize that any drug control policy driven principally by public health considerations and stripped of the moralistic and authoritarian impulses that motivate contemporary policy would have little use for many of the more punitive measures in evidence today. The hard questions begin when values such as privacy, tolerance, and a presumption against imprisonment for most nonviolent drug- related activities are factored into the analysis of costs and benefits. They become even tougher to answer the further we venture along the policy spectrum into the relatively unknown territory of untested regulatory mechanisms and over- the-counter availability of drugs that currently can be purchased, if at all, only with a doctor's prescription.

Why venture into the unknown terrain of a truly nonprohibitionist drug policy given both the difficulties of evaluating the consequences of such a policy and the unlikelihood of it being favored by a majority of Americans within the foreseeable future? There are four reasons, each of which are developed below. First, only such a policy can dramatically reduce the many negative consequences of drug prohibition. Second, it helps us to address fundamental questions about the basic need for a drug prohibition system-- in particular long unexamined assumptions about the differences between psychoactive substances and other consumer items as well as the vulnerability of the population to a broader availability of psychoactive drugs. Third, drug policy is one area in which libertarian assumptions regarding the magic of the free market may be more right than wrong. And fourth, the future may bring both new drugs as well as new ways of altering our states of consciousness that are not readily susceptible to governmental controls and that transform the ways in which Americans think about drugs and consciousness alteration.(16)

Thinklng seriously and systematically about radical alternatives to current drug prohibition policies requires a degree of intellectual "stretching" that is relatively unusual in policy analysis generally and virtually unknown in the specific case of drug control policy analysis. This stretch is best accomplished by asking two complementary questions: How do we best maximize the benefits of the free market model and minimize its risks? And how do we best retain the advantages of drug prohibition while minimizing its direct and indirect costs? This stretch can be visualized by focusing on the enemies of the drug policy spectrum, with the free market at one end and contemporary American drug prohibition near the other end, and then trying to stretch each toward the other by applying notions of harm minimalization to each.

The stretch from contemporary prohibition is, of course, the easier and more familiar one. It begins with a known quantity, the status quo, which is far easier to evaluate than theoretical alternatives--even if many causal relationships resist precise identification. The tendency of policy analysts and policymakers to focus on options that fall within or close to the realm of politically acceptable opinions means that far more thought and discussion have been devoted to the more modest revisions of current prohibition policies. Many of the initial steps that one can envision already have been taken in the Netherlands, England, Australia, and elsewhere. And even many of the steps that might be taken beyond what is currently happening abroad still require no radical changes in either the structure or the mechanisms of prohibition.

The further one stretches from the contemporary prohibition model, however, in terms of reducing criminal justice and other coercive controls on the distribution of drugs, the more difficult it becomes to evaluate the consequences. It is, for instance, not that difficult to estimate the consequences of making marijuana, heroin, and other strictly prohibited drugs available by prescription, or of legalizing the sale and possession of syringes and other drug paraphernalia, or of extending the limited decriminalization of marijuana possession enacted by eleven states during the 1970s to the entire country. There are powerful reasons to believe that each of these policy changes would substantially reduce the undesirable consequences of drug prohibition and present only modest risks in terms of public health. But it is quite another thing to estimate the consequences of making cocaine, amphetamine, morphine or heroin more readily available to registered addicts, and surely an even greater intellectual challenge to evaluate the consequences of making these drugs legally available over- the-counter. That challenge cannot be met, I suspect, by taking contemporary prohibition, and the patterns of drug use that have emerged under it, as the starting reference points.

Evaluating the Supermarket Model

Staring from the alternative extreme of the policy spectrum, the free market, obliges us to focus on the question that lies at the heart of the debate between legalizers and prohibitionists of all stripes: What would be the consequences for American society of having virtually no drug control policy whatsoever? Imagine, for instance, that Congress passed a law granting the freedom of drug consumption and even production and distribution the same legal protections as the rights of freedom of speech, press, religion, and assembly. And imagine that "supermarkets" existed all around the country in which drugs of every variety could be purchased at prices reflecting nothing more than retailers' costs plus reasonable profit margins and sales taxes. This is, of course, the nightmare scenario portrayed by the opponents of legalization--even if it is not the policy favored by virtually any of those identified as proponents of legalization apart from the most hard-core libertarians.(17) But it also bears a close resemblance to the relatively free market in drugs found in late nineteenth- century America--a period characterized by a fairly high rate of opiate and other drug consumption but dramatically fewer drug-related problems than we see today.(18)

The great advantage of this model is that it eliminates virtually all of the direct and indirect costs of drug prohibition: the many billions of dollars spent each year on arresting, prosecuting, and incarcerating hundreds of thousands of Americans, the diversion of scarce govern-mental resources from dealing with other, more immediately harmful, criminal activities, the tens of billions of dollars earned each year by organized and unorganized criminals, much of the violence, corruption and other criminal activity associated with the illicit drug markets, the distortion of economic incentives for inner-city residents, the severe problems posed by adulterated and otherwise unregulated drugs, the inadequate prescription of drugs for the treatment of pain, the abundant infringements on Americans' civil liberties, and all the other costs detailed in the extant literature on drug prohibition and legalization.

The great disadvantage of the supermarket model is its invitation to substantial increases in both the amount and the diversity of psychoactive drug consumption. What needs to be determined as best as possible are the magnitude and nature of that increase and its consequences. Among the more explicit assumptions of the legalization analysis is that the vast majority of Americans do not need drug prohibition laws to prevent them from becoming drug abusers. By contrast, prohibitionists typically assume that most Americans, and at the very least a substantial minority, do in fact need such laws--that but for drug prohibition, tens of millions more Americans would surely become drug abusers. The supermarket model provides no immediate insights into which perspective is closer to the truth, but it does suggest two important approaches on analyzing the implications of a free market.

First, it is imperative that analysts broaden their horizons to examine not just potential changes in the consumption of drugs that are currently illicit but changes in the cumulative consumption of all psychoactive substances. Virtually all human beings consume psychoactive substances. Alcohol and caffeine are certainly the two most common in the United States today, followed by nicotine, marijuana, and a variety of the more popular prescription drugs used to alleviate feelings of depression and anxiety. With the notable exception of alcohol, which has retained its preeminent position throughout the history of American psychoactive drug consumption, all other drugs have witnessed substantial changes in their levels of consumption.

Some of these changes have been a result of changes in drug laws. Others have reflected the emergence of new drugs, or new formulations of familiar drugs, as well as changes in medical prescription practices, new marketing techniques, changing fads and fashions in recreational drug usage, and broader changes in popular culture as well as particular subcultures. The notion of a truly free market in drugs obliges us to consider what would happen if alcohol, nicotine, and caffeine no longer were artificially favored over other drugs by virtue of their legal status. One strong possibility is that other drugs--including some that are common in other societies, some that were once more popular in America than they are today, and some that have yet to be designed or discovered--would compete with and substitute for those drugs that are most familiar to Americans today.

Indeed, one of the silver linings on the black cloud of greater drug use under different legalization regimes is the prospect that less dangerous drugs would drive out the more dangerous ones. By most accounts, alcohol and tobacco represent two of the most dangerous drugs that have ever entered into common usage in human society. Between them, they present a high proportion of all of the harms associated with other drugs that have experienced widespread usage at one time or another. Tobacco, especially when consumed in the form of cigarettes, is both highly addictive and readily identified as a cause of cancers, cardiovascular diseases, and other ills. Alcohol can be highly addictive for some users; consumed in abundance, it can cause death by overdose in the short-term and cirrhosis of the liver and other diseases in the long-term. It also is strongly associated with violent behavior and accidental injuries in a great variety of societies. There is no reason to assume that their predominant position in the hierarchy of favored psychoactive substances will persist forever, and good reason to believe that the desirable functions they serve can be replaced by other substances that pose far fewer dangers to the health of consumers in both the short and long-term. The same may well be true of relatively less dangerous drugs, such as caffeine, which might well lose out in the competition to other psychoactive substances, such as low potency coca and amphetamine products, that may improve performance more effectively with even fewer negative side effects.

The possibility of dramatic substitution effects under a free market regime suggests that the most important issue in evaluating the consequences of such a model is neither the overall magnitude of drug consumption nor the number of drug users under such conditions, but rather the magnitude of the negative consequences that would result: the immediate effects of drug misuse on the health and behavior of the user; the debilitating effects of sustained misuse; and the deadly effects of sustained consumption. Each of these effects may also be of consequence for nonusers ranging from those who love or live with drug abusers to those who depend upon them in the workplace to those who encounter them on the roads. The evaluation of these consequences, and the assessment of which are more or less serious, inevitably involve ethical judgments. But it is important to recognize that public policy can seek to shift patterns of drug use and even abuse in safer directions by favoring drugs, sets, and settings that cause less harm to users and others. It is, in short, possible for the undesirable effects of drug use to decrease significantly even as the amount and diversity of drug consumption increase substantially.

Indeed, if we really seek to be truly objective in our assessments, what needs to be calculated are not just the cumulative negative consequences but the positive ones as well.(19)Proponents of the public health perspective as well as substantial segments of the American population are reluctant to speak of the positive benefits of psycho-active drug use except to the extent they conform with conventional notions of physical health and medical treatment. Alcohol's benefits, for instance, are defined primarily in terms of their potential to reduce heart disease, and those of prescription drugs entirely in terms of their capacity to alleviate pain, depression, anxiety, and feelings that disrupt normal functioning. Yet most people use drugs because they enjoy the effects and many perceive a variety of personal benefits that are rarely measured by physical, medical, or social scientists. Some of these resemble the effects approved by medical and public health criteria, but they typically are not interpreted as such either because they involve an informal form of self-medication or because they confront the common value judgment that one should not have to use psychoactive drugs to be or feel a certain way. The moderate consumption of alcohol as a social lubricant, and of coffee and other caffeinated beverages as a mild stimulant to increase alertness, are probably the most easily accepted and widely acknowledged non-medical benefits associated with nonprescribed psychoactive drug consumption. But it is also the case that millions of Americans justify their past use and/or explain their current use of marijuana, cocaine, hallucinogens, and a variety of other drugs in terms of the benefits that they have derived from their consumption of those substances. Such claims are easily belittled in a society that adopts the notion of "drug-free" as its motto, and are often dismissed by scientists who find such benefits particularly difficult to measure. Nonetheless, it seems inherently unreasonable to dismiss entirely the perceptions of consumers, especially when the negative consequences of their consumption are not apparent. We thus have no choice but to calculate the consequences of changes in drug consumption not just in negative terms but as a net calculation that incorporates both positive and negative consequences.

The second perspective suggested by the supermarket model is that the potential negative health consequences of a free market, or of any other substantial change in policy, are best assessed by considering the respective susceptibilities of different sectors of the population to such changes. I proceed from two assumptions: that it is possible to distinguish among sectors based upon their susceptibility to drug abuse and hence their vulnerability to changes in drug policy; and that close examination of both current and historical patterns of drug use and abuse, as well as other patterns of human behavior, provide important clues into the nature and degree of susceptibility under alternative regimes. Implicit in the second assumption is the recognition that Americans, and most other people, already live in a society in which powerful psychoactive substances are widely available to both adults and children. One need only consider the easy availability of alcohol, tobacco, and caffeine virtually throughout the country; the continued ease of obtaining marijuana and other illicit drugs in much of the country; the extensive presence of powerful psychoactive substances, generally prescribed by medical practitioners, in the medicine closets of American homes; and the entirely uncontrolled availability throughout the United States of many other psychoactive substances, ranging from gasoline and glue to the wide array of drugs available over-the-counter in pharmacies.

What conclusions can be drawn from an analysis of the cumulative consumption of psychoactive drugs in this country? First, virtually all Americans consume psychoactive substances--and even the small minority who appear to abstain entirely, such as the Mormons, seem to compensate by consuming substances that are not traditionally viewed as psychoactive, such as sugar and caffeinated soft drinks. Second, a substantial majority of Americans consume these sub-stances only in moderation, suffering little or no harm as a result. Third, the drugs that prove most addictive to most Americans are those, such as cigarettes and caffeinated beverages, that can be easily integrated into everyday life with minimal hassle or disruption. Fourth, virtually all drugs, even heroin, cocaine, and other drugs most associated with destructive patterns of consumption, are consumed m moderation by most of those who use them.(20)Fifth, a substantial majority of those who enter into destructive patterns of drug consumption eventually pass on to either abstinence or moderate patterns of consumption.(21)

When we focus on those who appear most susceptible to destructive patterns of drug consumption, further conclusions are apparent. First, while certain types of drugs are more difficult to use in moderation than others, the principal determinants of destructive drug use patterns involve not the pharmacology of the drug but the set and setting in which the drug is consumed. That is why alcohol consumption among conquered aboriginal groups and cocaine consumption among some inner-city populations have more in common with one another than either does with patterns of alcohol or cocaine consumption among less vulnerable sectors of the population. In-deed, no set and setting is more conducive to extensive and severe drug abuse than the combination of poverty and maladjustment to a mainstream society. Second, those who engage in destructive patterns of consumption with one drug are the most likely to repeat that pattern with other drugs; conversely, those who demonstrate an ability to consume alcohol and common prescription drugs responsibly, or who have succeeded in either stopping or dramatically curtailing their consumption of tobacco, are much less likely to engage in destructive patterns of consumption with other drugs.

Consider the results of recent polls on drug use in the United States. Approximately one-third of Americans over the age of twelve claim that they have not used alcohol in the past year, and close to half report that they have not consumed any alcohol in the past month.(22)In a December 1990 Gallup poll, 43 percent of those polled described themselves as abstainers from alcohol--up from 29 percent in the years 1976--1978.(23) Among African-Americans, the proportion who claim to abstain from alcohol is 58 percent.(24) Of those Americans who did drink within the past month, only one in ten (or about 5 percent of the household population) reported that they had drunk heavily during that time.(25) Approximately 75 percent of all Americans over the age of twelve have smoked at least one cigarette; slightly less than 30 percent report that they smoked within the past month, of which half consume about a pack or more a day.(26) With respect to marijuana, about 33 percent of Americans have used it at least once, 11 percent in the past year, 6 percent in the past month, and about 1 percent on something resembling a daily basis.(27) There is reason to believe that there is substantial overlap not only between those who drink heavily and those who smoke heavily, but also between those two groups and those who use illicit drugs heavily-- although detailed cross-tabulations of available surveys are required to reach more exact estimates. Indeed, one also finds substantial overlap with those who engage in compulsive gambling and other harmful activities. The principal exception to this substantial overlap may involve the misuse of tranquilizers and other prescription drugs, especially among women. Even if we assume that self-reports of alcohol and tobacco consumption tend to underreport actual consumption by 30-50 percent, we still must conclude that at least 70 percent of Americans are resistant to the sorts of temptations and risks posed by the easy availability of cigarettes, and that more than 90 percent either refrain from powerful drugs altogether or else consume them responsibly and in moderation. This conclusion strongly suggests that a very substantial majority of Americans are immune to any far reaching liberalizations in drug availability for the simple reason that they do not really need drug laws to prevent them from entering into destructive relationships with drugs.

The important question is thus not whether or not millions of Americans would change their patterns of drug consumption under a radically different drug control regime-- since there is good reason to assume they would--but rather whether those patterns would be more (or less) destructive than their current patterns of drug consumption. Among the tens of millions of Americans who abstain from alcohol consumption, it seems reasonable to assume that they would have little interest in, and perhaps substantial moral reservations against, consuming other powerful psychoactive drugs. Among the even larger number of Americans who consume alcohol in moderation, despite the great potential for that drug to be consumed in a destructive fashion, it is also reasonable to assume that the same individual and societal restraints that protect them against alcohol's seductive powers would control their consumption of other sub-stances. For the vast majority of Americans, therefore, the principal danger posed by a free market in drugs has little to do with drugs like crack cocaine, since so few Americans would be likely either to try it in the first place or, if they did try it, to continue to use it. (Public opinion polls consistently reveal that few Americans believe they would consume cocaine, heroin or even marijuana if those drugs were legally available.)(28)

The greatest danger of a free market in drugs, I suspect, is the possibility that a drug, assumed at first to be relatively safe, becomes popular among millions of Americans and then is revealed to be far more harmful than initially believed. This danger is one that has proven commonplace in the annals of pharmaceutical innovation, medical prescription practice, and inebriation, from morphine and cocaine during the nineteenth century to cigarettes, barbiturates, amphetamine, tranquilizers, and many non- psychoactive drugs, including steroids, during the twentieth. It is one that has continued to frustrate the regulatory efforts of the Food and Drug Administration in recent decades, and that promises to persist into the future regardless of whether or not the drug laws change substantially. But it is fair to assume that the dangers would be greater if far more products were to become legally available.

The most common fear of legalization, however, is usually of a different sort, and it must be taken seriously. It is that there are millions of Americans for whom the drug prohibition system represents the principal bulwark between an abstemious relationship with drugs and a destructive one. Under a free market regime, it is feared, many of those who currently abstain from, or consume in moderation, alcohol and other powerful intoxicants would become drug abusers, and many of those who already have demonstrated either a potential for, or a pattern of, drug abuse would engage in even more destructive patterns of drug use. Underlying this fear are a variety of assumptions: that the only things which prevent many current users of illicit drugs from engaging in far more destructive patterns of drug use are the high price and lower availability of those drugs under the current prohibition regime; that at least some of the illicit drugs are more seductive than those that are currently legal and/or available; that a free market regime would inevitably invite greater levels of drug experimentation, which in turn would lead to higher levels of use and abuse; that many people would be more likely to complement their current drug use with newly available drugs than to substitute those for their current preferences; and that the heightened societal tolerance for more varied psychoactive drug use that would likely accompany a free market regime would lend itself to higher levels of drug misuse.Even if we assume that the vast majority of those who now consume psychoactive drugs safely would continue to do so under a free market regime, and further assume that a substantial proportion of those who currently misuse illicit drugs would be no worse and quite likely better off under a free market regime, the fact remains that there is a relatively small, but indeterminate, proportion of Americans for whom the drug prohibition system provides not just the image but the reality of security. Figuring out, with some measure of confidence, the magnitude and composition of this vulnerable population is among the most important intellectual challenges confronting those who take seriously the need to estimate the consequences of alternative regimes. And designing policies that minimize the magnitude of this at-risk group without resorting to criminal justice and other coercive measures is surely an even greater challenge.

Most of those who would suffer from the absence of the current drug prohibition regime can be found among those who currently smoke cigarettes and/or abuse alcohol. The first group includes both those adolescents and adults who have demonstrated a willingness or alibity to disregard the well known consequences of cigarette smoking, as well as those adults who have demonstrated an inability to abandon a dangerous habit. The second group, which overlaps substantially with the first, includes those adolescents and adults who have demonstrated an inability to control a powerful psychoactive substance, i.e., alcohol, despite the existence of increasingly strong social controls. There are certainly others who neither smoke cigarettes nor abuse alcohol who would enter into destructive relation-ships with other drugs if they were more readily available, but there is (as I already have suggested) good reason to doubt that their numbers would prove substantial.

In trying to predict which drugs will prove most popular in the future, who will use them responsibly and who will do so destructively, it is important to keep in mind why people use drugs and why they use the drugs they do. The choice of drugs for most members of most societies can barely be described as a choice at all. Dominant cultures strongly favor some drugs over others, hence the preferred position of alcohol throughout much of the world, with different societies evidencing a preference for beer, wine or distilled liquors, or of coffee in most Islamic societies and quat in some, or kava in some South Pacific islands and coca in the Andes. Alcohol's dominant position no doubt stems as well from the fact that its simple means of production was easily discovered millennia ago by a wide diversity of societies, so that it was not merely readily available in most societies but also provided with substantial opportunity to entrench itself.(29) Tobacco's secondary position somewhat similarly can be attributed to its great success in sweeping the globe and becoming entrenched in a great variety of societies before the emergence of any international capacity for its suppression--although its powerful addictive qualities must also be given credit for ensuring that markets once penetrated remained markets thereafter. As for substances such as kava, betel nut, coca, cannabis, opium, and various hallucinogens, each has benefited, not unlike alcohol, from being an indigenous product.

To the extent that drug consumption patterns and preferences can really be described as a choice, it is fair to say that people choose those drugs that give them what they want. Most people can in fact be described as rational consumers even in their choice of psychoactive drugs. They use drugs because they seek or like their effects, whether those involve relief from pain, reduction of stress and anxiety, release from inhibitions, stimulation of the senses and the intellect, enhancement of physical or mental performance, or any of the many other psychoactive effects of drugs. Most people, moreover, tend to limit their consumption in order to minimize the negative consequences, whether those involve hangovers, heart disease or cancer. The evidence from a broad variety of cultures suggests that the single most important determinant of a drug's popularity is its capacity to be integrated into ordinary lives with minimal disruption.

It is important to recognize that the same notion of rational drug consumption applies to some extent even to those who are engaged in highly destructive patterns of consumption. For many hard core drug users in the inner cities and among aboriginal populations, their intensive involvement with powerful drugs provides a powerful source of relief from emotional and other psychological pain, some excuse for isolating themselves both from mainstream society and difficult personal responsibilities, and (particularly for those most engaged in the day to day hustling for the means to procure their expensive drugs) a source of self- esteem and motivation to keep getting out of bed in the mornings despite the absence of any promising prospects in their lives. This is not to say, of course, that the destructive drug use patterns of those living on the edge of despair can be described as entirely rational. But it is to say that even hard core drug abusers tend to prefer drug consumption options that minimize the risks of death in both the long and the short-term; the growing evidence about the willingness of intravenous drug addicts to take modest steps to reduce the likelihood of contracting the HIV virus attests to this.(30) Relatively few hard core drug addicts can be described as truly committed to an early death. It is thus reasonable to assume that even most current and potential hard core drug users will, if given the choice, opt for drugs that are, at the very least, no more dangerous than those consumed today. One can supplement the notion of rational drug consumption, which focuses on the individuals' preferences, with another notion also drawn from libertarian philosophy. It is that societies, like individuals, generate non-legal social norms in the absence of govern-mental prohibitions and other restrictive laws. Societies, simply stated, are not entirely at the mercy of free markets, but retain the potential to create self-protective mechanisms designed to minimize the risks presented by such markets. Indeed, some libertarians argue, one of the more significant costs imposed by governmental prohibitions is the withering of societal norms that often operate more powerfully and effectively than governmental interventions. Evidence in support of this argument can be found in anthropological and sociological studies of traditional and modern cultures alike, wherever patterns of human intercourse are allowed to evolve in the absence of significant governmental prohibitions. Particularly reassuring in this regard are the many decriminalizations that one can point to throughout civilized human history that were opposed by those who feared for the civility and even the survival of society but that turned out to be far less destabilizing than was feared. Such fears impeded efforts to do away with restrictions on speech, press, religion and assembly, on relations between people of different classes and races, on sexual and familial relations, and on the availability of psychoactive drugs that are now integrated into modern society.(31) The same sorts of unjustified fears now stand in the way of efforts to do away with current drug prohibitions.

The arguments of the libertarians are both powerful and, at least with respect to the majority of society, quite convincing. They confront, however, three counterarguments that most Americans currently find compelling. The first is simply that drugs and drug consumption are fundamentally different than all other commodities and activities--so different that ordinary libertarian assumptions do not apply. The second, like the notion of rational drug consumption, derives from economic reasoning. It is the evidence that suggests that levels of consumption of desirable consumer items tend to increase as their availability increases and their price decreases. And the third is the epidemiological evidence suggesting that the negative consequences associated with the use of any drug in a society are a direct function of the overall level of use of that drug. Of these three arguments, the first represents the weakest in terms of logical analysis but the most powerful from an emotional and political viewpoint. It can be repudiated by reference to the many ways in which other commodities and activities generate the same sorts of behavior as do the consumption of drugs, be it the alteration of consciousness, the transformation of social behavior or the creation of dependent relationships.(32) But the belief in the unique power of psychoactive drugs is so entrenched in our society that even highly prominent liberal theorists, including those with strong libertarian inclinations, either avoid the subject altogether or else carve out awkward exceptions to their otherwise more coherent philosophies. The second and third arguments, by contrast, present far more powerful reasons to refrain from placing one's faith entirely in libertarian assumptions.

There are other reasons as well to put the purist libertarian assumptions and the supermarket model to the side. The more one speculates about the consequences of such a model, the more one realizes that all sorts of additional assumptions have to be made about the type of society that would favor such a model--and that these assumptions are even more speculative than anything we assume about the vulnerability of today's population to such a model. At the very least, the sets and settings that so powerfully shape the nature and consequences of drug use would inevitably differ dramatically from their contemporary formulations. Furthermore, as soon as one engages in the process of trying to think through the consequences of such a model, one encounters the inevitable tendency to begin framing restrictions on the supermarket. Whether one analogizes to alcohol and tobacco, or to the nineteenth-century model of widespread drug availability, one confronts the tendency both in the United States and elsewhere to impose restrictions on the distribution of psychoactive drugs.