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Update on the Drug War

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THE U.S. SUPREME COURT has ruled that “medical necessity” is not a permissible defense under the federal statute that outlaws distribution of marijuana. This has been widely interpreted as a lethal blow to the medical marijuana movement.

The government had sought an injunction against an Oakland, California, cooperative that distributed marijuana to people whose doctors had prescribed the drug under that state’s medical marijuana law, which was approved by voters in 1996. A federal appeals court had told the trial court to write the injunction in order to permit seriously ill people who could benefit from marijuana to continue to obtain it.

At that point, the federal government took the case to the Supreme Court. Writing for the majority, Justice Clarence Thomas said that because Congress has listed marijuana as a Schedule I “controlled substance,” the drug was not accepted as a medical treatment. Hence there could be no defense of “medical necessity.”

(The Court ruled 8–0, with Justice Stephen Breyer recusing himself because his brother had been the federal trial judge in the case. Not all justices signed on to Thomas’s opinion, however.)

What are we to make of this ruling? The first thing that comes to mind is this: Why is Congress or the judiciary determining what is and is not a legitimate medical treatment?

In a free society, shouldn’t that be a matter for the patient in consultation with his physician? Obviously, there are doctors all over the United States who believe that marijuana will bring some form of relief to their patients with serious illnesses.

The question, I realize, sounds naive. Obviously, many pharmaceutical drugs are kept out of our hands until we get permission, that is, a prescription, from our doctors. That is just one of the many ways we are infantilized by the government. In a truly free society, our right to self-medication would be honored, as Thomas Szasz has been saying for decades.

In other words, the War on Drugs is merely part of the government’s larger War on Self-Responsibility.

But this casts the effort to legalize medical marijuana in an entirely different light — again something that Szasz has been saying for a long time. Once we realize that medicine is already under the thumb of the state and that doctors are deputies in the enforcement of the drug laws, legalizing only the medical use of marijuana does not sound like an advancement of individual liberty.

Liberty potentially can be achieved step by step. But that doesn’t mean that every step labeled “pro-liberty” really is. Many advocates of legalizing medical marijuana see it simply as a way to get medicine to sick people. Others see it as a strategy for eventually legalizing marijuana, or all drugs, for everyone. And still others believe it will advance individual liberty in general. But once we see the laws against marijuana as part of the government’s control of all types of drugs, including medicines, we can understand that legalizing medical marijuana would not bring us closer to ending the drug war or to liberty in general.

Legalizing medical marijuana would merely permit doctors to prescribe it to certain patients under government guidelines. We should not mistake the widening of doctors’ prescription power for an expansion of liberty. The state controls access to drugs. It deputizes doctors to help carry out that control. Therefore, adding a drug to the list from which doctors may prescribe does not increase people’s freedom but only the state deputies’ power.

To put it another way, freedom is not advanced by letting doctors decide who may and who may not have marijuana. We will not move toward legalization of drugs if the government’s criterion is whether a given drug has “legitimate” medical uses. On the contrary, if medical marijuana is legalized, we can expect a crackdown on doctors who appear a little too free with their prescription pads and on nonmedical users. Why? Because the authorities will be desperate to demonstrate that legalizing medical marijuana is not a signal that it is all right to use the drug outside the medical context.

Medical marijuana, in other words, will be a boon to the war on drugs.

The futility of the drug war

In a related matter, the announcement that we have a new drug czar (a nice term for a government official in America, no?) reminded me of a recent appearance on CNN of the previous drug czar, Gen. Barry McCaffrey, and U.S. Rep. Bob Barr, Republican of Georgia. They were discussing the need to be tough with drug users and traffickers.

Nothing astounding about that. But there came a moment that people should have found truly astonishing. Both the former czar and Barr agreed that one of first things we need if the war on drugs is to succeed once and for all is … “drug-free prisons”!

Drug-free prisons? They aren’t drug-free now?

Of course they’re not. How many Americans know that? That prisons are still not drug-free sheds new light on the war on drugs. After all, if they can’t keep drugs out of prisons, how do they expect to eliminate them from society at large?

Think about it. In prison the inmates are under constant surveillance. Their lives are controlled, theoretically, down to the minutest detail. Their contact with the outside world is subject to the strictest scrutiny. And yet prisoners have no trouble getting any drug you can name.

How can that be? Obviously, they get help from the very people who are watching them so closely. The corruption of prison guards is an old story. There has never been a time when prison guards and even higher-ups were not tempted by bribes to at least look the other way when prisoners did things they were not supposed to do. We know, for instance, that mobsters have continued running their criminal operations from behind bars.

That prison officials would permit, and even enable, inmates to get illegal drugs was predictable for the simple reason that drug dealing is highly lucrative. There’s plenty of money available to bribe officials with. And it is precisely their illegality that makes dealing drugs so profitable. How’s that for irony?

We live in a dreamland when it comes to the war on drugs. We pretend that all government has to do to make drugs disappear from society is to declare them illegal. If they don’t disappear, it’s because the war on drugs isn’t being fought fiercely enough or with enough money.

That isn’t analysis. It’s wishful thinking.

The application of economic principles will indicate where the drug warriors and their supporters go wrong. First, there is a demand for drugs. That is nothing new. In every society from time immemorial there has been a demand for intoxicants and narcotics. Most of the people who have used those substances have done so responsibly. A small percentage have not. At this late date in human history, it is unlikely that the demand for drugs will vanish.

Second, where there is demand, there will be supply. If people are willing to pay for a product, others will be willing to provide it. If the buyers want drugs badly enough, they will be prepared to compensate the sellers for any dangers involved in providing them. The sellers will be prepared to do what is necessary to reap the big profits, including bribe officials who would otherwise stand in their way.

The logical conclusion, amply supported by long experience, is that if the government declares drugs illegal, they won’t disappear but will simply become the province of the black market. But that creates worse social problems than the drugs. Since disputes in the black market cannot be settled peacefully in court, those who are least reluctant to use violence will rise to the top of the drug trade. Thus outlawing drugs inevitably increases the level of violence in society.

Further, as we have seen, black-market profits will be used to corrupt law enforcement — not only prison guards, but policemen, customs officials, judges, and the military. The same thing will happen in foreign countries where the U.S. government tries to prosecute its war. The Washington Post reported recently that in Peru, one of the U.S. government’s partners in the war on drugs, more than a dozen generals have been arrested on suspicion of drug-related corruption.

The next time you hear the drug czar proclaim success, just say to yourself: “They can’t keep drugs out of prisons.”

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    Sheldon Richman is vice president of The Future of Freedom Foundation and editor of FFF's monthly journal, Future of Freedom. For 15 years he was editor of The Freeman, published by the Foundation for Economic Education in Irvington, New York. He is the author of FFF's award-winning book Separating School & State: How to Liberate America's Families; Your Money or Your Life: Why We Must Abolish the Income Tax; and Tethered Citizens: Time to Repeal the Welfare State. Calling for the abolition, not the reform, of public schooling. Separating School & State has become a landmark book in both libertarian and educational circles. In his column in the Financial Times, Michael Prowse wrote: "I recommend a subversive tract, Separating School & State by Sheldon Richman of the Cato Institute, a Washington think tank... . I also think that Mr. Richman is right to fear that state education undermines personal responsibility..." Sheldon's articles on economic policy, education, civil liberties, American history, foreign policy, and the Middle East have appeared in the Washington Post, Wall Street Journal, American Scholar, Chicago Tribune, USA Today, Washington Times, The American Conservative, Insight, Cato Policy Report, Journal of Economic Development, The Freeman, The World & I, Reason, Washington Report on Middle East Affairs, Middle East Policy, Liberty magazine, and other publications. He is a contributor to the The Concise Encyclopedia of Economics. A former newspaper reporter and senior editor at the Cato Institute and the Institute for Humane Studies, Sheldon is a graduate of Temple University in Philadelphia. He blogs at Free Association. Send him e-mail.