David S. D'Amato: The war on Americans

  That the consumption of certain drugs ought to be proscribed by law is probably taken for granted by most people. The presumption in favor of banning some drugs has become so strong, so embedded in the mainstream of popular discourse as to be practically beyond debate — notwithstanding either philosophical or empirical issues that stand in contradiction to the accepted view. But at this stage in the American experiment in drug prohibition, the case for legalizing drugs, for leaving them within the realm of permissible choices, is worth another look. As defenders of individual rights and responsibility, libertarians have been making that case since the Drug War’s incipiency.

  It isn’t that libertarians don’t recognize the problems presented by drug use, but rather that we challenge the assumption that there is any rational relationship between the Drug War and lessening the destructive power and prevalence of drugs within society. The question we ask isn’t whether using drugs is a good decision for the individual person; it is whether a person, under a system of just laws, ought to have the right to decide which substances are fit for his consumption — whether smoking marijuana, for instance, is among the legitimate prerogatives of an adult in civil society.

  Libertarians approach that question, ultimately the question of the rights of the individual, in a distinct manner, one that uniquely demarcates our philosophy from others who attend to specific policy questions less consistently. That distinctly libertarian approach is what Herbert Spencer described as "the law of equal freedom," the notion that "every man has freedom to do all that he wills, provided he infringes not on the equal freedom of any other man." For Spencer and for libertarians, the law of equal freedom means that every person has the right to legislate for himself, no government having any ethical authority to substitute its judgment for that of the individual person. Libertarians deny that the state is any more competent to make fundamental decisions about the danger of a particular substance than is the individual person.

  As a matter of course, some members of society will make self-destructive choices, acting against their own interests, even in ways that could have grave consequences. In the absence of the kind of infringement of others’ freedom that Spencer’s formulation interdicts, however, adults must be left free from the grip of invasive laws and regulations. Champions of the war on drugs argue that indeed drug users do pose the kind of threat to their neighbors that the law of equal freedom is designed to confront — that illegal drugs cause people to engage in acts that threaten society at large. But such causal arguments do not withstand even cursory scrutiny, especially given that dangerous and mind-altering substances such as alcohol fall on the permissible side of the arbitrary line drawn by policymakers. To justify the ban of a particular activity within a free society, the connection between that activity and the harm that putatively results from it cannot be a tenuous one. It is not enough, then, that drug users may cause harm to others. As the Cato Institute’s Doug Bandow notes, any number of perfectly legal activities (gambling, the abuse of alcohol, and tobacco use, among them) may yield externalities, indirect harm or costs to others. To pursue a plan that would hope to eliminate all such externalities or undesirable consequences from human behavior and interaction would be to preclude even the possibility of a free society.

  Furthermore, the drug warriors who most loudly trumpet the externalities argument in favor of the war on drugs often ignore the externalities of prohibition laws, the unforeseen, negative consequences of wielding such a blunt instrument as state power. As the eclectic libertarian lawyer and theorist Stephen Pearl Andrews argued, any essay at crafting laws "applicable in all respects" to "the infinite millions of events" implicated by the diversities of human society will be vain, doomed from the outset by the simple lack of the ability to predict every outcome of a given piece of legislation. The untold number of possible after-effects "mocks at all human attempts to make laws, or constitutions, or regulations, or governmental institutions of any sort, which shall work justly and harmoniously amidst the unforeseen contingencies of the future." Andrews’s words articulate one of the central rationales that today’s libertarians appeal to in opposing drug prohibition: Even assuming, for the sake of argument, that individual persons don’t have a fundamental right to make their own choices regarding the substances they consume, the supposed remedy in this case is far worse than the disease it purports to treat. And the "treatment" comes at an enormous cost to Americans.

The most expensive cost

  The Drug Policy Alliance estimates that the "amount spent annually in the United States on the war on drugs" now exceeds $50 billion, with the Office of National Drug Control Policy (ONDCP) disingenuously leaving billions of dollars out of the budget data that it releases to the public. The ONDCP reasoned that the federal drug budget ought to reflect only spending to reduce drug use — not, as it previously had, expenditures tied to the "consequences of drug use," which of course include enforcement and the prosecution of the war on drugs. Americans are supposed to judge the efficacy of the patchwork of policies at both the federal and state levels using sketchy and incomplete data that necessarily omit what we should arguably regard as the most important and expensive piece of the puzzle. Given the logic professed by Washington as underlying the War on Drugs — that its objective is to reduce drug use and its attendant harms within society — it ought to come as no surprise that the militaristic law-enforcement features of drug prohibition would be downplayed or deliberately obfuscated. Were those features not so hidden, Americans might begin to get the idea that the War on Drugs has been really quite impotent in assailing drugs themselves, and rather better at unjustly destroying lives and expanding the police state.

  As criminal-justice scholar Peter B. Kraska observes, the Drug War has "relied heavily on military ideology and practice, yet this fact has been almost completely ignored by crime and justice academics." The research of Kraska and others has revealed the dominant philosophy underlying the War on Drugs as one that embraces the war aspect of its name in the most literal way. The public-policy ban on certain substances has served as motivation and justification for a steady increase in police paramilitary units, with special forces groups such as Delta Force and the Navy Seals functioning as the template, write Kraska and Matthew D. Michelle. Such forays of municipal police forces into military technology and tactics have naturally meant millions of dollars in contracts for the firms that manufacture the equipment used. Worse than the fiscal costs, however, are the erosions of civil liberties that have accompanied the transition to military ideology within American police departments, an ideology that has continued to grow apace, especially in the "national security" climate that emerged after 9/11. In the new political reality of paranoia, perpetual crisis, and emergency, it has been ever easier for the phenomenon of militarization, which was already well under way, to escalate, to build on police-state measures already in place.

  Radley Balko, a libertarian journalist who focuses on police abuse, notes that the militarization of America’s police is encouraged by a number of federal programs, among them the Byrne grant program, which sets a large portion of funds aside specifically for enforcement of the drug laws. Similarly, federal programs have cemented a pipeline that transfers military gear intended for war to local police. The extreme domestic militarization wrought by these Drug War policies — from armored tanks to military-style machine guns — are simply incompatible with the goals of and the conditions for a free society; they blur the lines between the U.S. armed forces and the police in ways that should make everyone uncomfortable, setting a dangerous precedent and encouraging clandestine, opaque practices and tactics.

  But if drug prohibition is such bad policy on purely economic and utilitarian grounds, why does it endure? An inquiry into and analysis of the connection between Drug War policy and the interests that have skin in the game, so to speak, proves illuminative in the discovery of an answer to that question. Indeed, experience has proven it impossible to be too cynical about the political machinations that sustain the War on Drugs. In addition to police forces, private prison companies are an influential driver of drug prohibition and associated policies, forming a multibillion dollar industry that spends millions lobbying policymakers. (As George Mason University economists Abigail R. Hall and Christopher J. Coyne write, "Consider that the revenue for the two largest private prison businesses total [sic] nearly $3 billion annually.") With 25 percent of the world’s prisoners, the United States, the ACLU notes, has far and away the most of any country, despite having only about 5 percent of the global population. Imprisoning such a disproportionately large segment of the American population is a costly undertaking, translating into staggeringly huge figures — approximately $75 billion in federal and state combined spending and the employment of about 800,000 people, according to the CNBC program "Behind Bars: Inside America’s Prison Industry." The burgeoning prison industry understands both its influence and the relationship between it and the War on Drugs. This is not to suggest any conspiratorial intent on the part of business and government. It only stands to reason that interested actors who stand to benefit from the enactment of particular policies will lobby zealously for their position. To be sure, Hall and Coyne note, the industry itself acknowledges that demand for the service it provides hinges critically on drug prohibition and the harsh penalties associated with it.

  The Drug War, an amalgam of big money interests and state and federal policies, has become a creature unto itself, with its own momentum and extremely high stakes. Libertarians understand that harm can come from drug use (though many people use all kinds of drugs responsibly), but we recognize that the solution — whatever it is — cannot possibly be the failed nightmare of waste, imprisonment, and authoritarianism delivered by the War on Drugs. It would be more accurately named a war on American society and people, one far more deleterious than drug use, the vast proportion of which is confined to marijuana. The end of drug prohibition would be a victory for personal freedom and a blow at the creeping police state now so widely documented; it is not the cause only of seeming weirdo radicals and potheads, but rather of all reasonable people.

  About the author: David S. D'Amato is an attorney with an LL.M. in international law and business.

  This article was published by The Future of Freedom Foundation.