You may recall my previous post on the extreme injustice of the drug war. To my mind, this continues to be the most important, easy to solve issue facing us today.

So I am always glad when there is reason for some (slight) optimism about the war on drugs. And there is now. Last week the New Hampshire state House voted to legalize up to one ounce of marijuana for recreational use by anyone 21 or older. Coupled with the reforms in Colorado and Washington, as well as countries like Uruguay, Portugal, and (of course) The Netherlands, things seem to be slowly moving in a positive direction.

In my earlier post, I made some comments about the racial dimension of drug war’s injustice. Some people expressed concerns about these claims. For those of you who are interested in the issue, here you can check out a recent ACLU report that summarizes some of the racially disparate effects of enforcing laws against marijuana.

The report has two findings, which combine to underscore the points I made earlier. First, if you think the drug war is mostly waged against gangsters, dealers, and associated bad guys, think again. Arrests for marijuana (the most innocuous of illegal drugs) make up over half of all drug arrests. And no less than 88% of those arrests are for possession. (Of all drug arrests, 46% is for marijuana possession. Many others, of course, are for possession of other drugs.)

Second, if you still thought the law is colorblind, think again. While black Americans use drugs at roughly the same rates as white Americans, blacks are 3.73 times more likely to get arrested for drug offenses. The War on Drugs is, was, and will remain a gigantic waste of lives, police effort, money, and time.

Unfortunately, it looks like the New Hampshire initiative is not going anywhere. Democratic Governor Maggie Hassan has announced that she will veto the bill. Let’s not mince words here. What do you call a person who has to do nothing but sign a bill that would predictably take a real step towards ending terrible injustice, but refuses to do so? I have a few terms come to mind. The politest: a thug.

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  • Mark Rothschild

    Can you listen to this and not realize that
    you live in a society permeated with evil?

  • Jerome Bigge

    Neither of our two major political parties believes in personal freedom. Democrats believe they know what is best for all of us. Republicans the same, although they differ from Democrats in what they consider to be of primary importance.

  • Herb

    “What do you call a person who has to do nothing but sign a bill that
    would predictably take a real step towards ending terrible injustice,
    but refuses to do so?”

    A coward more like it…

    The only politician who will lift a finger to legalize cannabis is the one who runs on it.

  • Sean II

    “In my earlier post, I made some comments about the racial dimension of drug war’s injustice. Some people expressed concerns about these claims…if you still thought the law is colorblind, think again. While black Americans use drugs at roughly the same rates as white Americans, blacks are 3.73 times more likely to get arrested for drug offenses.”

    I don’t believe anyone disputed the facts last time. Certainly I did not. The issue is rather that your analysis (the usual libertarian analysis) is facile, and invites people to draw badly mistaken conclusions. As I said before:

    1) The drug war actually makes our prisons whiter than they would otherwise be. If we ever start locking people up only for traditional violent and property crimes, get ready to see a US prison population that, is even more disproportionately black and hispanic. The numbers could approach 60% and 30% respectively. Ending prohibition is still a good idea, but anyone who implies that will lighten the collective skin tone of our CJS supervised population is talking straight out of his hat.

    2) It’s important to understand how possession charges are actually used in the machinery of criminal justice. The standard story is: cops and courts preferentially target minority drug possessors out of racism and malice. This is nonsense.

    The truth is that police and prosecutors are under constant pressure to push down the rate of traditional crimes. In just about every city you can think of, those crimes – murder, aggravated assault, robbery, burglary – are largely exported from the black part of town.

    But there’s a problem. Finding traditional criminals and gathering evidence of traditional crimes is hard. Pot possession cases are easy. So what you get is a system that targets the most prolific crime producing category – young black males – and says “you might not catch these guys with bloody knives and burglar tools, but you can damn sure catch them with a roach in the ashtray, and keep them overnight…thereby reducing by some small fraction the odds that a white girl will get her phone snatched walking out of the Enormodome”.

    That’s what the drug war is now – it’s like a writ of assistance against certain populations, a blanket arrest warrant that can be executed pretty much at will. One of the reasons why legalization strikes fear into mayors, judges, district attorneys, police chiefs, etc., is that, to them, drug possession cases are a way to temporarily gain an upper hand against the violent elements in their community.

    That fact that the drug war increases violence on net is not their concern. All they care about is a way to stop tourists being mugged until the Super Bowl is over.

    • martinbrock

      So a lot fewer people would be in cages, and a lot fewer blacks and hispanics would be in cages, but a larger proportion of people still in prison would be black or hispanic? I still say that’s a huge win for racial justice.

      • Sean II

        No. Ending the drug war would be a big win for regular justice, but a mixed bag for “racial justice”.

        Fewer minorities in prison = good. Higher proportion of minorities in prison = the death of dearly held egalitarian myths.

        Now, thanks to the criminalization of everything, it’s easy to pretend that criminality is some evenly distributed trait among peoples…except, shucks, those racist redneck coppers keep ignoring all the white muggers and assassins on our streets.

        The day our prisons have to subsist on a diet of real criminals is the day we must finally admit that street crime is like many other fields of human endeavor: some groups take to it far more readily than others. The most prolific of those groups, being painfully sensitive to its public image, will absolutely not agree that what they’ve just experienced is a step forward for racial justice.

        • martinbrock

          Egalitarian myths are less pervasive and less mutable than you imagine. Freeing the pot smoker/dealers would free a lot of minorities, change the proportion of minorities in prison only a little and hardly change the myths at all.

        • Fallon

          So, take away the drug war and then you will have your workable lab test for race realism? I don’t think so. There are many other social factors, other complexes besides prison-industrial e.g., that may or may not contribute to the choices people make. Too many factors to sort out the difference between nature v. nurture.

          All of the commanding heights of the state complex as a whole are disproportionately controlled by ‘whites’. (I use common definition, not mine). Failure to include massive crimes of state– especially the thousands of murders carried on around the world by the US every year– is negligent thinking.

          Certainly, the state is the largest criminal organization in the world– and including its crimes in the race stats would do a lot to close the gaps.

          • Sean II

            “Too many factors to sort out the difference between nature v. nurture.”

            Oh, and suddenly you are playing the careful skeptic. How come with this issue, and no other?

            And if you really are a skeptic, why are you still acting like nurture deserves the benefit of every doubt? Why are you not at least starting with 50/50?

            Answer: because your conclusion is really your premise, and you’re diligently working backwards to protect it.

          • Fallon

            Turning this into a psych appointment? Start with my mother? Just this issue? Have you ever refuted anything i had to say?

            How about start with science. One of its main achievements has been to overcome “commonsense”. I know you wish it otherwise– being the common man against the prissy academics and all. As admirable as it is, there are limits.

            Who is the one not starting with 50/50? Race realism starts with a smile on a dog… Why is even 50/50 a good starting point? How does one begin to separate out cause and effect?

            Why point the finger at me for something you should be asking yourself.

          • Sean II

            How wrong you are about common sense. As Michael Huemer (some prissy academic) rightly points out, there are a handful of highly conspicuous examples where science upends common sense, but if you step back and look at the total output of common sense over the years, it turns out the vast majority has been upheld.

            The apple doesn’t fall far from the tree. That’s common sense. Children resemble their parents.

            Far from overthrowing that old wisdom, science has made an amazing contribution to it, in the form of twin and adoption studies.

            Turns out the apple doesn’t fall far from the tree, even if you deliberately remove it, and place it in the shade of another.

          • good_in_theory

            Unfortunately, the typical interpretation of the results of twin and adoption studies is suspect and inappropriate given the methods used.


          • Sean II

            How nice. A mouthful of weasel words backed up by a linked wall of text.

            I find it funny that even you can’t really commit to nature denialism. You don’t say twin/adoption studies are wrong, just that in the “typical interpretation” their “results” are “suspect and inappropriate”.

            That last word is telling. For most defenders of human malleability, the issue has little to do with scholarship, and much to do with propriety.

          • MARK_D_FRIEDMAN

            Yes to this. There is so much that nurture just can’t explain. My mom, like a gazillion other Jewish moms, wanted me to play a musical instrument. So I had four years of lessons that I hated. The money spent on this was the least productive in the history of the world. Then, there are cguys like Charlie Parker, Duke Ellington, Louis Armstrong, etc., a few of a much larger number of self-taught jazz geniuses. These folks were ALL nature and no nurture.

          • Sean II

            It was piano for me, and I showed just enough aptitude to lose the argument whenever I begged them to let me give it up. Not enough, though, for playing to be any fun.

            If nurture really worked like everyone hopes/insists, then you’d see some serious mousetrap-building by now. But you don’t. Every new baby genius innovation turns out to be a fad on its way to becoming simply a scam.

            But think of all the things you don’t see, which would exist if nurture really was magic. Why, for example, don’t you see overnight-rich black or hispanic athletes hiring jewish mothers as nannies, and getting typical jewish mother results?

            But you don’t see that, ever. Somehow Carlos Beltran knows what most academics refuse to understand: growing up rich won’t actually turn his kids into Judah Folkman…probably not even into one of Folkman’s graduate assistants.

            Instead, in real life, you see the very opposite. The mostly jewish and waspish 1% don’t hesitate to outsource their child-care to poor black or hispanic women – in some cases, they even entrust their kids to women with severely limited English. Somehow they know something that most academics stubbornly elude: it doesn’t matter, their kids will pull through.

            Think about that. If everyone really believed that nurture was so powerful, if everyone really believed the bad early environment and bad parenting of the poor was the cause of their pathologies, they wouldn’t let Fabienne from Haiti or Rosie from Dominica come within 50 feet of their kids. And yet, they do…they do, without difficulty.

          • MARK_D_FRIEDMAN

            Very strange. Of all the people in the universe you might mention to represent genius, you happen to pick Judah Folkman, who is much less known to the general public than Einstein or even Bohr, etc. But, my father, who was also a cancer researcher, was a friend of his–weird. As to your main point, I agree. Not to say that it’s ALL nature, but I believe it is the main factor.

          • good_in_theory

            What’s incredibly “telling” here is your reading of the word, “inappropriate.” Methodological propriety has nothing to do with your predictable whining about political correctness and the issues of moral propriety it concerns. The fact that you would think that it does just illustrates your own pathology.

            The problem with twin/adoption studies is that they are meaningless when it comes to the question of “human malleability.” They don’t demonstrate much of anything about human malleability. If you actually bothered to read, or understood the statistics behind the biometric modelling done in such studies, you would know this.

            Since your own ability to seriously read about the methodology of the science you put so much faith in is in doubt, I’ll just excerpt:

            ” Heritability is a technical measure of how much of the variance in a quantitative trait (such as IQ) is associated with genetic differences, in a population with a certain distribution of genotypes and environments. Under some very strong simplifying assumptions, quantitative geneticists use it to calculate the changes to be expected from artificial or natural selection in a statistically steady environment. It says nothing about how much the over-all level of the trait is under genetic control, and it says nothing about how much the trait can change under environmental interventions. If, despite this, one does want to find out the heritability of IQ for some human population, the fact that the simplifying assumptions I mentioned are clearly false in this case means that existing estimates are unreliable, and probably too high, maybe much too high.”

            “Implicit in the last steps is the assumption that the value of the trait is, in each organism, just the sum of a genetic contribution and an environmental one, i.e., that there is no interaction between the relevant genes and the relevant environments; also the assumption that the genetic contribution to the trait is completely uncorrelated with the environmental contribution. If these assumptions fail, one can still calculate heritability-like quantities, somewhat like in the simple analyses of variance, which can play similar roles in some evolutionary calculations, but they become strongly context-dependent, so it no longer makes any sense to speak of the heritability of a trait….”

            “Saying a trait is highly heritable is saying that, in a given distribution of genotypes and environments, most of the variance in that trait is associated with genetic differences. Maybe the most important point I’ll make here is that this is not the same most of the value of the trait being genetically controlled…. Similarly, heritability says nothing about malleability, about how much or how easily the trait changes in response to environmental manipulations: heritability is defined with respect to a given distribution of environments, and does not predict the response to environmental changes. ”

            “This is a good place to remind ourselves that the different contributions to the variance are basically never, in humans, measured in any direct way, or “controlled for” by regression. C [common environment] and S [specific environment] are not measured variables, nor are A [additive genetic component] and D [non-additive]. Rather, they are all inferred indirectly, by comparing the correlations predicted by the model with observed correlations…. If the model’s specification is wrong, then even the best estimator of a parameter like heritability can give you rubbish…. In particular, to get the right values for the genetic contributions to the variance, it is essential to account for all environmental sources of correlations, otherwise we are back to the genetics of zip codes. It is also crucial that the form of the model — additive contributions from uncorrelated sources — be correct. If there are correlation between genes and environments, or there are interactions between genetic contributions and environmental ones, then all bets are off.”

            “Does a trait’s heritability tells us anything about its malleability, about how easy it is to change the trait with environmental manipulations? The answer is “no, of course not”, even assuming (1) the basic biometric model holds, and (2) we are talking about true heritability and not biased-to-nonsensical estimated heritabilities.”

            For detailed explanation of the problems with the models used, as well as contraindicative examples of how the methods used in twin studies would show heritability for things like accent, tradition, and zip code/neighborhood, read the whole thing.

          • Sean II

            I read it the first time. It was crap, and a second reading won’t make it otherwise.

          • good_in_theory

            It’s pretty clearly not crap to anyone who understands the subject matter, so you’re either being mendacious or just stupid. Probably both.

          • Sean II

            You’ve got it quite backwards. That piece was written precisely for people who don’t understand the subject matter.

            The whole point of drivel like that is to give partisans the illusion they’ve read something technical and science-y which, by glorious accident, just happens to support their prejudices.

            True, the illusion is somewhat spoiled by the fact that it’s a blog post pretending to topple a vast body of scientific work, but that’s just the sort of thing a willing reader can easily ignore.

          • good_in_theory

            Sorry, until you actually evince some understanding of the statistical methods upon which this “vast” body of scientific work depends, there’s pretty much no reason to listen to you.

          • Sean II

            You put scare quotes around the “vast” in “vast body of genetic science”…and you propose to lecture me about numeracy?

            I’m sorry, but I just can’t continue this conversation until you get a better grip on the concept of vastness.

    • Jano Szabo

      If I may digress somewhat. Seventeen year-old men and women are now being criminalized if they’re not in high school. The progressive infantilization of older and older young adults, adolescents, teenagers – whatever you want to call them – has simply turned millions people into statutory, unemployable prisoners of shameless, featherbedding academic racketeers.
      Anyone suggesting nowadays that 12 year-olds be allowed to got to work or stay on the farm would be seen as uncaring and naive.

  • Orrie Cather

    “First, if you think the drug war is mostly waged against gangsters,
    dealers, and associated bad guys, think again. Arrests for marijuana
    (the most innocuous of illegal drugs) make up over half of all drug
    arrests. And no less than 88% of those arrests are for possession. (Of
    all drug arrests, 46% is for marijuana possession. Many others, of
    course, are for possession of other drugs.)”

    The second two sentences do nothing to support the first. The fact that most arrests are for marijuana (a Schedule 1 drug, like heroin), says nothing about whether the drug war is mostly waged against gangsters, dealers and bad guys. Unless you think that gangsters, dealers and bad guys don’t use or sell marijuana.

    Better arguments, please.

    • martinbrock

      I suppose “88% of those arrests are for possession” means that the person charged with possession was not also charged with “gangsterism” (whatever that is) or dealing. Not that I have anything against drug dealers. Drug dealing is an honorable profession, much more honorable than politics.

    • Sean II

      This is very much the point I was making before. Yes, of course…drug prohibition is bad for so many reasons. Easily one of our worst policies ever.

      But it simply does not follow to say that all or even most of the prisoners incarcerated for drug offenses are non-violent. Some are, some are not.

      There are plenty of Radley Balko type horror stories, with truly innocent and sympathetic victims of the drug war. But behind them lurks this reality: lots of people who end up in prison are scary motherfuckers, and damn well were before they got there. Many are the same sort of men and boys who terrorized American cities during the crime spike of 1965 to 1990. You’ll find them locked away for good reasons, bad reasons, debatable reasons, and indeed, any reasons society could find.

      Libertarian conclusions about the drug war are still correct, but appealing though it is, the libertarian narrative about the drug war is naive and incompatible with the facts. For one thing, urban crime shot up well before the drug war really got going. So at a minimum, we should stop saying the drug war caused the crime wave.

      But more importantly, ending the drug war won’t itself do anything to deal with the horde of fatherless, uneducated, unemployed young men who we’re all afraid of…and quite often right to be. Hell, if anything, ending prohibition deprives those kids of the only job they can still get!

      • Libertymike

        Is there a monolithic, undifferentiated, nuanced challenged, one size fits all, libertarian narrative about the drug war?

        • Sean II


          • Sergio Méndez

            “Libertarian conclusions about the drug war are still correct, but appealing though it is, the libertarian narrative about the drug war is naive and incompatible with the facts. For one thing, urban crime shot up well before the drug war really got going. So at a minimum, we should stop saying the drug war caused the crime wave.”

            What is the evidence of that? If not wrong crime rates started to climb significatively in the 70´s, just after Nixon started the drug war (and the same apply to many other countries, not only the US). And the evidence that the drug war is linked with other forms of criminality is overwelming.

          • Sean II

            Nope. You’re talking out of your hat.

            The crime wave started around 1960 and achieved rocket trajectory in most cities as early as 1965.

            That’s why Nixon was able to campaign on law-and-order anxiety in ’68. If anything, his declaration of war on drugs – in 1971 – was a panicked and desperate response to a crime wave that was by then well underway, and threatening to empty our cities.

            But hey, why let the facts spoil a perfectly good narrative.

          • Sergio Méndez

            Property related crimes, yes. But then, the incarciration rate skyrocked in the 80´s actually, and I bet it is closely tied to war on drugs (since still most of the jail population is still put there by non victim crimes).

          • Sean II

            No again. The violent crime rate went up in the 1960s at terrifying speed.

            The fact that the incarceration rate shot up two decades later actually helps my point, because it suggests that the drug war was (at least in part) an evolved strategy to remove and warehouse scary urban youths.

  • Irfan Khawaja

    I think this post oversimplifies things, as does its predecessor. Far too much work is being done by reliance on the phrase “war on drugs.”

    For one thing, does the phrase “war on drugs” refer just to the present criminalization of drugs, or to any regulation of drug markets as such by government? Would a “war” be thought to continue if drug dealers were regulated in the way that, say, psychiatrists are currently regulated by the FDA and state licensing boards? There are occasionally criminal sanctions involved in both cases. If the use of the criminal law is a sufficient condition for war, “war” would continue as long as drugs were regulated with any criminal sanctions involved for violation of the law. But I would argue that that’s as it should be. Sorry if this makes me a “thug.” But I guess that’s my question. What exactly is the criterion for thug-hood here? Is it the desire to continue the current war on drugs, or does it extend to anyone who wants the government to regulate drugs roughly in the way that physicians are licensed and regulated now?

    As it happens, there’s a literature in (or about) psychiatry that suggests that despite FDA regulation aimed at combating it, there is widespread iatrogenic injury by psychiatrists (and internists) arising from mis- or over-prescription of psychotropic drugs. Many illegal drugs are psychotropic as well. If regulation is compatible with widespread iatrogenic injury in the psychiatric case, there’s reason to think that complete non-regulation in the other cases would increase the frequency of such injury. If some of these injuries are rights violations, and I think they are, then the move from decriminalization of drugs to total non-regulation would replace one set of injustices with another. The pushers would be let out of jail (which is fine by me), but then they’d be defrauding and imposing torts on people with impunity, sometimes causing addiction, sometimes loss of life (which is not fine). It’s really not obvious how that ends up being a net gain. Something intermediate between criminalization and complete non-regulation seems advisable.

    To that end, I’d be interested to hear how malpractice is to be handled under libertarian (or BH libertarian) forms of drug legalization. In (conventional, regulated) medical contexts, transactions require informed consent with known, licensed practitioners working in a publicly known workplace. People disagree about whether malpractice is a tort or should be handled by contract, but If malpractice is a tort, it has to be regulated somehow, whether judicially or by legislation or executive agency. But how are unlicensed drug dealers to be regulated? Or are they not to be regulated? In that case, torts would just proliferate without remedy.

    Even if we treat malpractice in this context as purely contractual, how do we enforce contracts with drug dealers lacking a known address or identity–unless we insist that they have one? Do we assume that those are all cases in which liability has implicitly been waived by the consumer, and adverse risks have been assumed? In that case, all drug transactions are in effect to be regarded as cases of “caveat emptor,” even when the consumer ends up addicted or dead, whether out of misinformation/fraud, duress, recklessness, stupidity, or irrationality.

    Whatever the answers to these questions, I don’t think that “this” issue is all that “easy.”

    PS. I posted earlier on this, but I don’t think the post went through–just in case I end up double posting without meaning to.

    • martinbrock

      “War on drugs” is not a disparaging term invented by opponents of U.S. drug policy. Architects of the policy declared their policy a “war”.

      The “right balance” of drug regulation is a fair question if you believe that any drug regulation, other than market regulation and voluntary medical intervention, is necessary. A policy increasing the U.S. prison population four fold in as many decades hardly seems the right balance. Locking people in cages also harms them, and it’s also costly to non-drug users. People abusing drugs suffer all sorts of consequences that can discourage the abuse without states caging anyone, and both the abuse and its harms are more easily observed without a state driving them underground.

      I have no problem with a community establishing remedies for torts or even prohibiting drug use (as long as association with a community is voluntary), but I don’t agree that harms proliferate unchecked when markets alone regulate the sale of goods. News travels fast. You aren’t the only person on Earth who learns from experience. Most people avoid drug abuse for the same reasons that you do and would continue avoiding drug abuse without any war on drugs.

      • Irfan Khawaja

        The question isn’t who coined the term “war on drugs,” but what it’s supposed to mean. We can’t assume that the author means by it what Richard Nixon meant. My question was: would the author extend the “war” metaphor to a regulatory regime as well–a regulatory regime on par with the one that governs physicians? That hasn’t been answered yet, and isn’t answered by anything you’ve said.

        I’m not sure why you’re saddling me with caging the prison population. I explicitly said that letting convicted drug offenders out of jail is fine by me. Not arresting them in the first place would also be fine by me. I’m not in favor of “the drug war,” at least on my interpretation of that phrase. The question is what happens next, and so far I’ve seen no serious attempt to engage that question. For all I know, my pro-regulatory policy proposals for what happens next turn out to be some libertarian’s idea of “the continuation of the drug war by other means.” That’s why I was asking.

        I do think that government regulation of drug markets is necessary. In particular, I think we need some equivalent of the FDA (reformed and pared down perhaps, but essentially the same agency) and of state licensing boards. That may well put me outside of the libertarian or BHL fold, I realize. Having heard it now for twenty years, I simply don’t buy the standard libertarian line that the safety and efficacy of drugs can be effectively regulated without government involvement. The marketing of unsafe and inefficacious drugs is a rights violation, and I think governments ought to enforce rights.

        The evidence that harms proliferate when markets alone regulate the sale of drugs can be inferred from the frequency of iatrogenic injury from the mis- and over-prescription of psychotropic drugs over the last several decades. That’s a controversial claim, and I can’t bear all of it out in the comments on a blog. A good source to consult is Robert Whitaker’s Anatomy of an Epidemic (2010). Peter Breggin’s work is also relevant. There’s a large literature out there.

        Anyway, suppose ex hypothesi that Whitaker et al are right. In that case, psychiatrists regularly overprescribe psychotropic drugs with harmful effects on their patients. The explanation is under-regulation, not over-regulation, of the drug market. Take a physician who cavalierly prescribes Xanax and gets the patient addicted, then denies that the patient is addicted. What part of the explanation for this addiction makes essential causal reference to government regulation? The more obvious explanation is that there are no legal sanctions for behavior of this kind. If “news travels fast,” why does this sort of thing continue to happen as frequently as it does? In fact, news doesn’t travel that fast, and anyway, people’s rights can’t be held hostage to the speed at which news travels. If this is what happens with “respectable” psychiatrists and internists, imagine what happens with drug dealers who lack an identity and address. There is little legal recourse in these cases against malpractice by physicians. What legal recourse would there be against malpractice by drug dealers? If there is little legal recourse against physicians in a somewhat regulated and litigious environment, I think we can infer that there would much less in an unregulated environment in which providers were unlicensed.

        Strictly speaking, to say that “most people avoid drug abuse” is just to say that 51% of the population does. A 49% addiction rate wouldn’t be anything to brag about. If you think that’s nitpicking, the question arises: what IS the addiction rate in the US? When you calculate it, make sure to include the abuse of prescription psychotropics. Whatever the number, it’s not small or insignificant. The average internist and pharmacist has no idea how these drugs work. What you get from them is bluffing. I treat dealers of illegal drugs as being roughly on par with psychiatrists (and vice versa). I’ve dealt with a few in my day (psychiatrists and drug dealers), and I haven’t found them to be models of moral probity. (There are exceptions, I know.) But bluffing in a quasi-medical context is the thin wedge of fraud, and unless you think that all torts can be handled by contract or waivers of liability (which I don’t), drug transactions plus bluffing/deception are no longer voluntary, consenting transactions but methods of fraud.

        “Markets” aren’t capable of ensuring informed consent to transactions in this context. It’s not enough to observe, behaviorally, that one guy forks over some money and the other guy hands him some stuff. Nor is it enough to say: well, take that dimebag at your own risk; it could be pot, it could be something else, who knows, but it’s your problem either way! Since I think prescription medications are UNDERregulated, I have a problem with the idea that we’re to leave the sale of currently illegal psychotropic drugs UNregulated.

        We know what happens when people can buy psychotropic drugs with lax regulation, and do so in a tort regime that is biased toward treating torts as tractable by contract. People get addicted in droves. The medical profession pretends not to notice, the pharmacists pretend not to notice, the pharmaceutical companies pretend to care, and the drug legalization people assume that the issue has nothing to do with them.

        But the relevance is obvious. It’s one thing to end the militarized “war on drugs” in the old Nixonian-Reaganite sense. It’s fine by my lights to stop arresting people for dealing, possessing, and consuming. I have no problem with either suggestion. But it is not at all plausible to think that once you do that, you’re home free: the drug war is over, so the injustices are over and “the” problem is solved. Things aren’t that “easy.” In fact, at that point, the misery begins again in a new location. Critics of legalization have a point when they balk at legalization. If we have no real idea what happens on the day after legalization–no clinics, no regulation, just a “free market” in drugs and guns–we could be walking into a disaster. I’m just not impressed enough with libertarian arguments to want to risk that.

        • martinbrock

          I don’t saddle you with caging the prison population, but I do saddle the war on drugs with a huge chunk of it.

          To answer your question directly, I see no need for any regulation of any drug or medical procedure at the state level, but I have no problem with communities regulating them however they like and advertising their regulations to attract members.

          A free community may forbid marijuana use within its borders or permit this use only in designated areas and require members violating these regulations to accept confinement or other treatment for a time or leave the community. I have no problem with any of that, but the United States certainly is not a “free community” in this sense.

          I don’t agree that regulating drug safety and efficacy requires the state. People want to know that drugs they consume are safe, and they would heed other regulatory agencies, like a Consumer Reports or a Good Housekeeping Seal or the like. I never take a prescription drug without googling anymore, but criminalizing drugs tragically outlaws regulation of this sort.

          A legal market in drugs would produce drugs of uniform quality just as a legal market in beer produces beer of uniform quality now, and FDA regulation of beer production is hardly responsible. If you want to find widespread consumption of dangerous, bootleg whiskey poisonous to the drinker, you must go back to the days of prohibition.

          “Markets” ensure consensual transactions by definition. I don’t imagine perfectly informed consent under any circumstances, and the FDA certainly does not ensure this consent. The drug war does effectively outlaw informed consent.

          If people want a credible agency to regulate the drugs they consume, they have no trouble accomplishing this goal without a central authority monopolizing the service. Why only one FDA? Why not two or three or as many as people will support? Why wouldn’t multiple agencies of this sort police each other as well as policing drug manufacturers?

          By your account, people get addicted to drugs in droves now, so I’m not sure how this addiction is an argument for the existing regulatory regime. I’m addicted to this web site, as you can easily verify in the archives. So what?

          • Irfan Khawaja

            So at least we’re agreeing that the current method of
            criminalizing drug use and possession is unjustified. I still don’t know whether Van Der Dossen would describe an FDA-style regulatory regime as a continuation of ‘the war on drugs’ or not, not that that’s your problem. FDA
            regulations can involve criminal sanctions, so the line is not entirely sharp.

            I understand the position you’re taking, but I don’t think
            you’re understanding the rationale for mine. I’m not saying that drugs have to be regulated for paternalistic reasons, i.e., to prevent people from wasting their lives if they’d like to. People are free to waste or take their own lives without coercive interference from anyone, including the state. The topic I’m raising is not paternalism but fraud and torts more generally. But we should probably distinguish some issues here.

            (1) I’m assuming that fraud and torts are rights violations.
            Someone might dispute that. I’m not sure whether you are or aren’t.

            (2) There are disputes about what counts as fraud or a tort in a given context, e.g. a medical or pharmaceutical one. Again, I’m not sure whether we agree or disagree there, but I have a much broader conception of
            fraud than most libertarians (and most lawyers) I’ve ever met. I also am less optimistic than most libertarians about what would actually happen in a free market for drugs.

            (3) There are disputes about whether torts can all be
            handled by contract remedies, or not. I think not.

            (4) I’m assuming that governments (“states”) ought to
            protect rights. You’re disputing that.

            (5) I’m arguing that governments ought to regulate drug
            markets, and you’re disputing that for the same reason as you’re (4).

            I’ve listed (1)-(3) just to be explicit about them, but our disagreement is really about (4) and (5).

            A legal market in drugs requires government (a state)
            because you can’t get uniform protection of rights out the arrangement you describe. You say people ‘would’ heed Consumer Reports or Good Housekeeping Seals. I doubt they would, but that’s beside the point. Neither Consumer
            Reports nor Good Housekeeping has jurisdiction to enforce laws governing fraud or torts. It’s interesting that you say that you don’t take prescription drugs without Googling them. For one thing, what difference does it make whether the drug is prescription or non-prescription? For another, why are you Googling
            drugs when the most obvious expedient would be to ask the advice of your prescriber or pharmacist? The implicit answer is that you can neither trust them to give you good information, nor hold them accountable if the information is bad. You can be the victim of what any non-lawyer would call malpractice and have no case whatsoever for a malpractice suit in an American court. That’s because despite all of the talk about an anti-doctor ‘malpractice crisis’, in many ways, doctors engage in malpractice with impunity all the time. As I see it, that’s
            a systematic rights violation that goes unregulated. My view is that it should be more tightly regulated, and that we should stop paying so much deference to the ‘efficiency’-based arguments of the Law & Economics crowd, whose only concern is how to decrease litigation costs.

            If rights violations go unregulated in the case of supposedly respectable doctors with known addresses and licenses, etc., it’s very implausible to think that Consumer Reports or Good Housekeeping is going to
            deter drug dealers without known addresses or licenses from doing much, much worse. Since the topic here is fraud, and fraud is involuntary on the part of
            the victim, it isn’t useful to postulate consumers who ex hypothesi know what is going on by Googling the information. We need to think about victims who are
            fooled by prescribers or pushers out to make a buck, and how they are to get redress in a completely unregulated market. The libertarian answer seems to be
            that they won’t—redress is to be sacrificed to ‘freedom’. That’s the claim I’m rejecting. It is not a net gain to abolish one set of rights violations but then be systematically blind to another set, which is what all of the hasty talk about abolishing the drug war NOW amounts to. Again, my point is not that we should criminalize drugs, but that we can’t legitimately decriminalize
            before we’ve put a regulatory structure in place to deal with the predictable problems that arise from drug dealing.

            You say that a legal market in drugs would produce drugs of uniform quality just as a legal market in beer does. The example doesn’t work. Beer is a food, and food is regulated by the FDA (as well as by state health depts.) so regulation is a confounding factor here. It’s an empirical question to what degree the uniform quality of beer owes its existence to market conditions minus regulation versus market conditions plus regulation. Yes, Prohibition made alcohol unsafe (and I’m against it, after the fact), but again, it’s an empirical question whether beer was of uniform quality and safety before the
            advent of the FDA. You’d have to ask a beer historian, and in any case, you can’t simply infer that what’s true of beer will be true of any drug.

            You say that markets “ensure” consensual transactions by definition. It’s not clear what that means. Suppose there’s a market in cars. Then I steal your car. That’s a non-consensual transaction by definition. How does the market in cars “ensure” the consensuality of that transaction? I’m not disputing that when a transaction is genuinely voluntary, it should proceed. I’m saying that when it isn’t, it has to be addressed. Is the police department part of the “market” for cars?

            We need a single FDA for the same reason why we need one police department per jurisdiction, and/or a clear chain of hierarchical agencies with one monopolist superseding the others. You can’t otherwise get
            effective enforcement of a uniform set of rights. Who polices the FDA? Yes, the voters via Congress. But your rhetorical question misunderstand my point. I
            think voters are competent to make such decisions, or can be educated into competence. There’s no inconsistency in saying that and saying that voters
            police an agency that protects them against fraud and torts. They’re not being protected against fraud and torts because they (the voters) suffer some cognitive impairment that the FDA is expected to remedy. They’re being protected against them because they’re rights violations.

            Regulatory capture certainly happens under the current
            regime, but it need not be the rule, and if it is the rule, it’s still compatible with criminal prosecution of the drug manufacturers. If the FDA is the captive of regulatory capture, that hasn’t stopped it from prosecuting GlaxoSmithKline.


            Strictly speaking, this is a Justice Department case against GSK for violating FDA regulations, but it cuts against any simple ‘regulatory capture’ thesis. Suppose the FDA were ‘captured.’ How about the Justice Department, HHS, and FBI? Are they run by Monsanto, too?

            Anyway, the sheer fact of the FDA’s being the former VP of Monsanto doesn’t prove regulatory capture unless you simply subtract the possibility of moral integrity entirely from the equation on the assumption that no former
            VP could have any. But if that were the case, the institutional framework you prefer would be worse than any regulatory capture scenario. There would be
            nothing to “capture.” The current VPs of various companies might well control everything from the outset. If they committed fraud, the best you could do is write an angry article in Consumer Reports. I don’t think that would stop them.

            Yes, by my account people get addicted in droves even under the current regulatory regime. You somehow infer that because they do, that indicts the regulatory regime. But my point is that they are getting addicted
            despite that regime, not because of it, so if you loosened the regime, more would get addicted. The regulatory regime is porous and people are uninformed.
            Plenty of addicts slip through the cracks. I don’t see how it follows that if you abolished the FDA tomorrow, the addicts would disappear or diminish in numbers. How?

            The more forthright libertarian argument would be to admit that they wouldn’t, but insist that you don’t care one way or the other. Unfortunately, that admission would flout the entire BHL program of insisting that one must
            care. That’s why I asked my question. The ‘abolish the drug war NOW’ agenda is in tension with the BHL ‘we care about the helpless’ agenda. It may not seem
            that way if you focus resolutely on the prison population, but there are other relevant populations. Once you focus on them, the picture changes.

          • martinbrock

            You seem concerned that a multitude of independent agencies does not ensure that no one ever suffers the consequences of taking a dangerous drug, but the FDA cannot offer this assurance either.

            We must carefully distinguish the terms of a free association and the impositions of a state. Most of what you expect from the FDA is permissible within a free assocation in my way of thinking. I only oppose the monopoly you would grant to the FDA as a provider of this service.

            I don’t decide for other people what constitutes a violation of their rights, except to decide that other people have a right to make this decision themselves. I’m quite zealous on this score.

            Recreational drug use is particularly problematic in this regard. Consider two examples.

            First, John tells Mary that a particular substance is a recreational drug that will give Mary a sense of euphoria. In fact, the substance is a deadly poison with no euphoric effects. John is fully aware of this fact, and when Mary ingests the substance, she quickly dies.

            I’m such a zealous voluntarist, in principle, that I can imagine a scenario in which Mary freely accepts John’s right to mislead her this way. For example, Mary wants to commit suicide but doesn’t want to know the precise time of her death.

            On the other hand, outside of this hypothetical scenario, I expect few people to accept this sort of deception and its consequences freely, so I’ll grant you that practically any free community would consider John’s deception fraud and its consequences a tort and would sanction John severely for it.

            Because I expect practically any free community to regulate itself this way, I see no need for a state imposing this regulation on communities.

            That’s the easy case. In the second scenario, John tells Mary that a substance is a recreational drug that will give Mary a sense of euphoria, a euphoria so profound that Mary will never want anything else again. In reality, without any hypothetical caveats, John’s assertion is true, and Mary takes this drug.

            Mary later dies in a homeless shelter after years of material poverty, having prostituted herself and suffered every conceivable indignity to obtain as much of this drug as possible, because she never again wanted anything more, not even her own dignity, just as John told her prior to the transaction.

            Is John guilty of fraud in the second scenario? Does Mary experience a tort, or does she get precisely what she bargained for?

            For me, the answers to these question are irrelevant. A free community may forbid this drug and sanction John’s behavior regardless, and I would join this community; however, though I expect few people freely to join a community permitting unrestricted use of this drug, I would not invade a community permitting this use to impose a prohibition, as long as the community does not permit members to die of starvation or similar privation.

            I expect few free communities to permit unrestricted use of a drug with such dire consequences, but most recreational drugs, in reality, have less cut and dried effects, and I also don’t impose rules on others based upon my necessarily myopic expectations. I’m content for communities to reach their own conclusions within their own experience.

            Do I therefore not care about Mary? I’ll say this much. I don’t care that other people think that I don’t care. I rather think that I care enough about other people to let them make their own choices, and I think that a monopolist presuming to impose drug regulations on everyone everywhere doesn’t care to grant his own fallibility.

          • Irfan Khawaja

            I’m concerned about any institutional set-up that fails to protects the rights of parties to a transaction or interaction. That concern is narrower than the one you attribute to me, of being concerned to regulate all of the negative consequences of drug use. I agree that people can voluntarily choose to be addicted. What I dispute is that the conditions of consent are obvious in drug transactions, or that when they’re not obvious, they should go ignored or unregulated. That concern is not tied in any simple way to the rate of drug addiction. The rate could go up or down. What’s essential is how transactions take place–whether fraud and torts are regulated or ignored. Non-fraud/non-tort harms will no doubt take place, and are unavoidable.

            The principle you mention in your third paragraph strikes me as self-contradictory, ad hoc, or both. But it lays bare the disagreement between us perfectly:

            “I don’t decide for other people what constitutes a violation of their rights, except to decide that other people have a right to make this decision themselves. I’m quite zealous on this score.”

            The “except” clause is both self-contradictory and ad hoc. Self-contradiction: you’re saying that you don’t decide for others what constitutes a rights-violation, except for the most important right, which determines the structure and content of all the others. That seems to me prima facie incoherent. The first clause simply contradicts the second. Ad hocery: why the exception? If deciding people’s rights is a bad thing, why decide the most fundamental right for others, but then leaving “the rest” undecided?

            I think that paragraph just misconstrues the relevant issue. The issue is WHEN someone has freely decided something. My point is that they have not done so if they’ve been defrauded, and you are both conceding and rejecting my claim.

            If you yourself are admitting that there is one right that whose structure you will decide for other people, then fraud has to be excluded from the decisions they make while exercising this right. You’re imagining “free communities,” but the decision to be a member of such a community cannot involve fraud, can it? Nor can the promulgation of community standards. Nor can the enforcement of those standards. All of that has to be free of fraud. If it was fraudulent, the communities wouldn’t be free. That’s the concession.

            But when it comes to drug transactions, you inexplicably reject the same principle. Here, for no apparent reason, transactions are to be left in a kind of legal netherworld where we have to sit around and wonder about the the examples you’ve just given (Mary/John). That’s the rejection.

            My view is that the combination of concession and rejection is incoherent. It’s just another instance of the first incoherence.

            Re the John/Mary examples:

            The first example obviously involves fraud, and it should be treated that way. You say that “few” people would accept the legitimacy of John’s action (meaning that most would regard it as fraud), but that seems very speculative to me. You don’t really know that. After all, many people think that drug users are losers. If so, they may simply think that whatever happens to them is fine, including fraud. There’s no way to know short of going out and doing fieldwork.

            On my view, regardless of the findings of that fieldwork, it’s mandatory to regard John’s action as fraud and enforce Mary’s rights against him. So the FDA et al should regulate the John-Mary transaction. After all, if you yourself are conceding that most people would regard John’s action as fraud, where is the harm in outlawing it? Why worry about the (according to you) small minority who eccentrically believe otherwise? Incidentally, my point is not that drug addiction per se will fall if we have FDA regulation, but that transactions like the first John-Mary one will be deterred, and fall. At the very least, we’ll have a framework in place for making the attempt.

            The second case is indeterminate. For that reason, I think it would be legitimate for the FDA to specify that if John is going to sell this sort of drug, he has to specify what he means by “you’ll never want anything again.” Suppose Mary survives and sues. A court would have to decide what that clause meant. You might as well save the trouble by getting clear on that from the outset.

            No harm in that, right? I don’t think there’s any free-standing right to be a bullshit artist with dangerous substances by playing clever word games. If John loses that “right,” so what? I doubt he ever had such a right because I doubt there is one. The exercise of rights has to be specified by context (Rand works that into her definition of rights, actually, and so do many other theorists), so I think it’s unreasonable of the Johns of the world to expect acontextually broad or stringent rights to deal drugs free of any regulation.

            Contrary to what you say, I think the view you describe subverts rights. It’s entirely possible on your view for what is currently the USA to be constituted by “free communities” many of which systematically ignore Mary’s rights in one or both of your examples. That strikes me as unacceptable. Whatever its flaws, a reformed, rational, reined-in version of FDA regulation is preferable to that.

          • martinbrock

            Why does concern about any institutional set-up failing to protect parties to a transaction lead you to favor a monopoly provider of this protection? If a monopoly fails to protect people, they have no options left.

            Conditions of consent are rarely obvious, in drug transactions or other transactions, but I don’t see how a monopoly provider of “clarity” solves this problem. A monopoly provider can only create an illusion of clarity by declaring itself the final arbiter of disputes. Its declarations are clearly final, and that’s all. The declarations aren’t clearly true or clearly good or clearly anything else.

            Again, I’m not sure how fraud is the issue here. If a drug dealer sells me a drug so addictive that I’ll exchange anything for it, finally reducing myself to poverty in its pursuit, how has he defrauded me? Does your monopoly of my protection intervene only if the drug dealer misrepresents the drug’s addictive effects? What if I want more protection than that?

            “I don’t decide for other people what constitutes a violation of their rights, except to decide that other people have a right to make this decision themselves. I’m quite zealous on this score.”

            The “except” clause is both self-contradictory and ad hoc.

            I don’t see how the statement with this clause is self-contradictory. The statement is self-contradictory without this clause. Suppose I say, “I don’t decide what sort of beer other people prefer. I only realize that other people make this decision for themselves.” Is that statement self-contradictory?

            Self-contradiction: you’re saying that you don’t decide for others what constitutes a rights-violation, except for the most important right, which determines the structure and content of all the others.

            I’m saying it, but it’s not self-contradictory, and it doesn’t much determine the structure and content of anyone’s rights.

            Basically, I’m saying that all rights are contractual, and since I’m not a party to every contract, I don’t influence the terms of every contract, except insofar as contracts generally govern people’s rights. How is that incoherent?

            Even if I don’t add “all rights”, I still say that contractual rights are contractual, and since I’m not a party to every contract, I don’t influence the terms of every contract, except insofar as contracts generally govern people’s contractual rights. How is that incoherent?

            If deciding people’s rights is a bad thing, why decide the most fundamental right for others, but then leaving “the rest” undecided?

            How else can I leave people to govern themselves regardless of my preferences? If I do not grant people a right to be free of my impositions, am I then being consistent?

            The issue is WHEN someone has freely decided something. My point is that they have not done so if they’ve been defrauded, and you are both conceding and rejecting my claim.

            I’m not. I don’t want to be as free as you want me to be. I don’t want to be free of this drug dealer only if he defrauds me. I want to be free of him even if his representations are entirely truthful, so I don’t want your state enforcing only a prohibition on fraud; however, if you want to be free only of fraudulent drug dealers, I want you to have your preference as well.

            If you yourself are admitting that there is one right that whose structure you will decide for other people, then fraud has to be excluded from the decisions they make while exercising this right.

            No. The one right that people have, in my way of thinking, incorporates a right to decide that fraud is permissible. I don’t expect many people to want fraud to be permissible, but the one right I imagine does not entitle me to make this decision for others.

            You’re imagining “free communities,” but the decision to be a member of such a community cannot involve fraud, can it?

            A community’s terms of association can permit fraud. Yes. If someone entices you fraudulently into an association, you may leave the association upon discovering the fraud. That’s the only protection I offer you. You can imagine some omniscient being always protecting you from these deceptions, but you can only imagine it. The FDA can never be this omniscient being.

  • John

    Keep in mind that if you actually look at racial disparity, it comes with good reason. Something like 95% of all gang members are black or hispanic. Not white. This may be related to poverty, but regardless, it is a critical distinction. Gang members are viewed by police as the most dangerous drug dealers and therefore they use ANY means, ANY charge necessary to put them in jail. It has nothing directly to do with race, but with who actually joins gangs. If you look at these individuals, there are precious few you’d like to see walking the street.

    So if you’re wanting to make a real libertarian case against the drug war, you’re simply going to muddy the waters with making it seem like it is racist. For another thing, one of the reasons police go after crack dealers is because the target isn’t some wealthy guy who can bail himself out, but poor blacks who LEAST need a drug addiction. The goal wasn’t to jail as many blacks as possible, but to SAVE as many blacks as possible.

    Libertarians need to refrain from assuming that liberal spin on a subject is valid, repeatable or useful.

  • John

    Also, you imply that by arresting someone for marijuana, they are NOT bad guys, NOT drug dealers, NOT gang members. That is a ridiculous assertion. The problem isn’t that the police arrest dangerous people on questionable charges, the problem is that prohibiton CREATES dangerous people.

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