From added sugar, to boxing, to nicotine, the United States federal government routinely allows activities that are harmful to health in the name of freedom.
However, there is one consistent exception: drugs.
Demonized, stigmatized, and criminalized, drugs are portrayed as immoral enough to prosecute and imprison Americans merely for possessing them, even in small quantities. For a country that is supposedly built on the notion of unabashed individualism, the American government has routinely abandoned this principle when it comes to illicit substances.
Do drugs really cross the line as to something that the government has a moral right to ban?
Likely, no. The double standard the government places on drugs is unjustly restrictive, and only exacerbates the drug epidemic.
On Individual Agency
To explore the relationship between drug abuse, morality, and the American government, the Harvard Political Review interviewed Jeffrey Miron, a senior lecturer in the economics department at Harvard University. He explained that in determining where to draw this line, Americans ought to consider “whether the actions that the government is considering interfering with have significant, clear adverse effects on other people that [are] costly for them to avoid.”
For example, any American possesses the right to swing their fist at their will. However, that right to swing their fist stops at someone else’s body. Furthermore, Miron explained “[if we’re] talking about things that directly might harm third parties related to drug use and driving under the influence, then that’s a different story, in the same way as for alcohol.”
Therefore, even if drugs were legalized, the direct reckless effects of drug use would likely still be criminalized. For example, the justice system does not punish people for getting drunk in the comfort of their own home, but does punish alcohol use if the consumption of alcohol directly harms someone else, such as when individuals drive under the influence. Drug use should be no different.
Even if it is predicted that legalizing all drugs would catalyze harmful outcomes, the status quo — the current system of drug prohibition — is still an assault on autonomy.
The Black Market
Legal or illegal, people still use drugs and people still die from overdoses. The only delta is that when drug use is stigmatized, it becomes forced into a perilous underground market.
In an interview with the HPR, Kassandra Frederique, the Executive Director of The Drug Policy Alliance, a national nonprofit that aims to put an end to the war on drugs, characterizes that in the black market, “There’s no formalized safety precaution of testing the drugs.”
When someone purchases drugs, they rely on the seller to assure them that the drug is pure and unadulterated. However, in such informal sales, there is no mechanism to ensure that this seller is telling the truth or even knows what the substance is made of. For example, since 2010, overdoses from drugs that are laced with fentanyl have increased by 5,000%, from a mere 0.6% of all U.S. overdoses in 2010 to 32.3% in 2021. This is in large part because 60% of fentanyl-laced fake prescription pills contain a potentially lethal quantity of fentanyl.
Importantly, Frederique explained that legalizing drugs can help prevent the outcome of fatal overdoses. In her words, “the legalization of drugs is about the regulation of how people access them.”
However, even absent explicit regulations, a decriminalized market is still likely to have better incentives for consumers and dealers to secure higher quality products. Miron explained, “In a legal market, when you’re buying [a] substance, you typically know from whom you’re buying it, [and] that person is likely to want to be in the business of repeatedly selling so killing your customers … [is] a really bad business. Firms that don’t control quality get a bad reputation, and customers don’t patronize them.”
Legitimate businesses that must compete with each other have structural incentives to sell safe products. However, sellers in the black market do not have the same incentive for good public relations. Not only do many people not even know the original source of the drug they are purchasing, and therefore don’t blame the seller, but there is an expectation that a possibly impure substance is a risk that buyers in the black market must take.
Frederique explained this phenomenon as “the iron law of prohibition, which really talks about how the harder the enforcement, the more innovation there is, and that innovation can lead to more deadly and more dangerous or more powerful substances being in the drug supply.”
Since federal, state, and municipal governments cannot completely eliminate all illegal drug usage and sale, they should instead implement a set of policies that limit the potency of drugs being produced. When drug production is pushed underground, it is outside of the purview of appropriate regulation and entirely in the hands of people that do not necessarily have an incentive to sell pure substances or who are ignorant about the purity of their products.
Legalization also acts as a mechanism to destigmatize drug use and addiction. The current narrative that addiction is a choice rather than a disease does nothing to stop the spread of addiction. Instead, it only shames and ostracizes those who suffer from it. However, drug legalization can help shape this narrative. Frederique argued, “in a regulatory market where we’re moving drugs outside of this underground, shame, stigma space and bringing it into the light, we can have more conversation about what is the type of education that all these different populations need.”
When drugs are criminalized, society does not treat drug users and dealers as human, and therefore neglects to have the necessary conversations to save lives.
This not only happens on a broad societal level, but at the micro-interactional level as well. Dr. Peter Grinspoon, a primary care physician and an instructor at Harvard Medical School, posited, “people who get addicted can’t get help very easily, because there’s a stigma.” People are less likely to seek rehabilitation if they live in a society where their actions are viewed as criminal, rather than as the byproduct of physical and mental health conditions. They are less likely to talk to trusted family members and friends about their addiction, because they fear the response.
Indeed, it was stigma and fear which defined the AIDS epidemic in the 80s and 90s, and that fear today still prevents some of the 16,000 people who die annually from seeing a doctor or getting tested.
Thus, Grinspoon characterizes criminalization as endangering drug users to “die alone in lonely bathrooms because they are afraid to get help when they’re addicted.”
Although some argue that there are alternative ways to solve the problem, such as good samaritan laws and promoting rehabilitation, anything short of legalization would not remediate America’s culture of stigma. If a government determines an action to be worthy of imprisonment, then it will always be stigmatized, which will consequently disincentivize people from seeking help.
Racial Disparity in Drug-Related Prosecutions
The final problem with the status quo is that Black and Latinx individuals are arrested and convicted at far higher rates than White individuals for drug use and sale. Indeed, federal law infamously prosecutes crack cocaine use harsher than powder cocaine use, even though the two substances are pharmacologically identical. And, there is a reason for this: The latter is used more in predominantly-White, wealthier communities, while the former is used more in predominantly-Black and low-income communities.
These current punitive policies are partially the legacy of Reagan’s draconian “war on drugs.” During his second term, he signed the 1986 Anti-Drug Abuse Act, which granted law enforcement $1.7 billion to convict drug offenders, and established mandatory minimum sentences for drug-related crimes. However, possessing five grams of crack cocaine warranted the same punishment as possessing 500 grams of powdered cocaine, which, as established, was and is racially discriminatory.
Moreover, over policing, majority-White and all-White juries, and a lack of high-quality legal representation cause racial minorities to face disproportionate criminal consequences for non-violent drug use. White and non-White drug users use drugs at around the same rate. However, despite Black and Latinx people making up less than a third of the U.S. population, they comprise over 75% of people in state and federal prisons for drug-related offenses. Grinspoon accurately summarizes the war on drugs as, “throwing people with dark skin in prison.”
Making matters even worse, prisons only exacerbate the drug epidemic, as they do not provide the FDA-approved drugs that treat opioid use disorder such as buprenorphine, methadone, and naltrexone. Indeed, only 10% of prisoners with substance use disorder have received clinical treatment in prison, which exacerbates the damaging cycle of incarceration rather than rehabilitation.
Making matters worse, drugs that do get smuggled into prisons are oftentimes mystery substances that can be especially harmful to users. Moreover, the fact that access to drugs is inconsistent means that prisoners experience rapid changes in tolerance that make overdoses, which are unlikely to be treated due to infrequent treatments.
Finally, inequality does not only occur in terms of crimes of drug possession, but due to the financial reality of living in a low-income community, it is often people who see no other financial options who resort to selling drugs in the first place. Thus, at every stage of a drug sale, it is those who the government has already marginalized that are being disproportionately convicted.
How Legalization Should Work
Although legalization can provide a path to a more safe future, it can also be remarkably harmful if implemented incorrectly. The HPR interviewed Bertha Madras, a professor of psychobiology at Harvard Medical School, about the health risk of full-fledged drug legalization. She asserted that “Full access to drugs increases use. There’s no question about it. And I’ll give you one example, the rate of use of marijuana has increased dramatically over the past 20 years, or even less, since the normalization legalization, medicalization of the drug has occurred.”
However, there are ways to mitigate the fallout of increased drug use. When analyzing why such a large number of Americans use marijuana as opposed to other substances, Professor Madras presented, “An early study that was done … asked … teenagers why they use marijuana, and they all said, well, their primary reason for using it is because people have called it a medicine, and therefore it’s safe because it is a medicine.”
What Madras touches on here is the common misconception between the legalization of medicinal marijuana and recreational marijuana use. However, the reality that many individuals continue to believe that all marijuana use has positive health effects is a reflection of how drugs have been legalized, rather than something inherent to legalization. To assuage concerns, there can still be, and should be, public education on the adverse effects of drugs, and a clear delineation between recreational and medicinal use.
Finally, Madras explained that, “products are much more potent than the label says are less potent,” which can obviously mislead the consumer, and cause them to consume too much.
The final concern to consider is the question of misleading advertisements by the private sector. The tobacco industry, for example, spends $8.2 billion on advertising in the United States alone. The important question, as Frederique puts it, is, “if you are being marketed to 24/7, are you really making a choice or not?”
This is a difficult question to answer, but there are ways to regulate advertising without banning the advertised product. The U.S. government could ban advertising for illicit substances to prevent such, while keeping the substances themselves legal.
Undoubtedly, there are problems that are likely to arise with drug legalization. Yet, other nations have successfully addressed this concern. Portugal is the perfect example insofar as they decriminalized all drug use in 2004 in the midst of a drug epidemic. Concurrently, they established a public health campaign on addiction, and made treatment the standard. After the policy was implemented, the number of Portuguese deaths from drug overdoses fell by 85%. Portugal’s drug mortality rate is the lowest in Western Europe and 15 times lower than that of the United States. Indeed, if America achieved Portugal’s drug mortality rate, a life could be saved every 10 minutes.
Importantly, Portugal did not legalize, but instead decriminalized, drugs. Therefore, the production of drugs was still not legal, but people were not punished for their drug use. Thus, there was less regulation about potency as there would be in a legalized system. The Portugal case study demonstrates that even destigmatizing drug use, prompting rehabilitation, and not imprisoning drug users can still make a world of a difference.
It is not too much to ask the country with the largest GDP in the world to follow in the footsteps of Portugal, and to take it one step further through legalization.
It’s Time for a Change
Calling for legalized drug use does not mean supporting excessive, potentially fatal substance abuse, or diminishing the immense harm that drugs have ravaged on America’s communities.
Rather, it acknowledges how the prohibitionist status quo only perpetuates the use of the very thing it seeks to eliminate.
The drug epidemic is destroying our communities: from prosecutorial disparities to the interpersonal hyper-stigmatization of addiction. Drug overdoses have more than tripled in the last 20 years, and the fentanyl epidemic is breaking apart families and ending lives, just as the crack cocaine and opioid epidemics did in previous decades. Undoubtedly, America needs a change.
Professor Miron said it best: “The question is whether the treatment of prohibition is worse than the disease, and my position is yes, the treatment is worse than the disease.” Drugs are in fact a disease, but the treatment of prohibition has caused diseases far worse: hyperincarceration and a dangerous black market.
A world with legalized drug use is still imperfect. It will certainly not stop people from dying from overdoses. However, America cannot let the perfect be the enemy of good. It is time to protect the livelihoods of all Americans through legalization.
