The War on Drugs--Posner's Comment

I am in broad agreement with Becker. But I am somewhat hesitant to describe the war against drugs as having been �lost.� By that token, so has the war against bank robbery, or any other crime, been lost, because there is a positive rate of these crimes as well. As Becker explains, law enforcement activity raises the cost and hence price of illegal drugs and as a result of the price increase reduces their consumption. If the object of the �war on drugs� is to reduce rather than completely eliminate the consumption of illegal drugs, then the war has been partially won. Which is not to say that the partial �victory� has been worth the considerable costs. If the resources used to wage the war were reallocated to other social projects, such as reducing violent crime, there would probably be a net social gain. For one thing, it is particularly costly to enforce the law against a �victimless� crime, more precisely a crime that consists of a transaction between a willing seller and a willing buyer. The low probability of apprehending such criminals has to be offset by very stiff sentences in order to maintain deterrence. Yet if potential criminals have high discount rates, an increase in sentence length may have little incremental deterrent effect because the increase is tacked on at the end of the sentence. The present disutility of an increase in sentence length from 20 to 30 years may, given discounting, be trivial. Still another consideration is that if the principal effect of illegal drugs is to impair the health and productivity of the consumer of the drugs, then it is just another species of self-destructive behavior and we normally allow people to engage in such behavior if they want; it is an aspect of liberty. Drug crimes are often thought to be inherently violent because of their association with guns, gangs, turf wars, and fatal overdoses. Those characteristics are, however, merely artifacts of the fact that the sale of the drugs in question has been criminalized, so that the suppliers cannot use the usual, peaceable means of enforcing property rights and contracts and are not regulated in the interest of consumer safety, as legal drugs are. To determine the full social effect of the war on drugs, we would have to know precisely how drug users respond to higher prices of drugs, since, from a consumer standpoint, higher prices are what the war on drugs achieves. One possibility is that the user spends the same amount of money on drugs, but, because the price is higher, consumes less. Another possibility is that he reduces his consumption so much that he has money left over, and he uses that to buy a harmless product. A third possibility, however, is that he reduces his consumption enough to have money left over but he uses it to buy a legal mind-altering drug, such as liquor. This seems in fact the likeliest response of someone who desires a certain level of mood alteration and faces a higher price for his drug of choice; he switches to a substitute that now costs him less because it is not burdened by costs imposed by law enforcement. If that is the principal consequence of the war on drugs, it is hard to see what is gained even if one embraces the paternalistic rationale of the war. The political source of the war on drugs is mysterious if, as I am inclined to believe, there is a legal substitute for every one of the illegal drugs: selective serotonin uptake reinhibitors (e.g., Prozac, Paxil, Zoloft) and other antidepressive drugs for cocaine, liquor and tranquillizers for heroin, cigarettes for marijuana, caffeine and steroids for �uppers.� Obviously these are not perfect substitutes; and some of the illegal drugs may be more potent or addictive or physically or psychologically injurious than the legal ones. But it is apparent that our society has no general policy against the consumption of mind-altering substances, and there seems to be a certain arbitrariness in the choice of the subset to prohibit. If these drugs were regulated instead of being prohibited, their content could be made less potent and addictive and consumers could be warned more systematically about their dangers, as they are about the dangers of cigarettes and prescription drugs. As a judge sworn to enforce the law, I will continue as I always have to adjudicate drug cases without any hesitations based on my reservations about the wisdom of the war on drugs. That is a legislative issue. Oddly, one of the strongest cases for prohibiting drugs is the use of steroids by athletes. The reason is the arms-race character of such use, or in economic terms the existence of an externality. Ordinarily if a person uses a drug that injures his health, he bears the full costs, or at least most of the costs, of the injury. But if an athlete uses steroids to increase his competitive performance, he imposes a cost on his competitors, which in turn may induce them to follow suit and use steroids themselves, provided the expected costs, including health costs, are lower than the expected benefits of being able to compete more effectively. There is no offsetting social benefit from an across-the-board increase in athletes� strength. Football games are no more exciting when linesmen weigh 500 pounds than when they weigh 200 pounds; and baseball would be totally unmanageable if every player could hit every other pitch 1000 feet.

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