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Jack L. B. Gohn: Prohibiting Prohibition – It’s high time

In another era, Uncle Burt would have been more of a paradox. His stock-in-trade was a dangerous and addictive substance sold to the public in full awareness of the danger. Despite this, Burt (a former in-law of mine) was a decent, law-abiding, respectable middle-class man. Both of his children attended fine colleges and became professionals.

The apparent contradiction between his solid citizenship and what he peddled is easily resolved: Burt was a sales manager for a liquor distributorship. But it was all a matter of when he did it. Had he entered the workforce 40 years earlier, during Prohibition, there would have been more disconnect. He would have had to be part of an underworld dominated by criminal gangs where turf disputes were settled with killings, and law enforcement officers existed to be bought. (As journalist Daniel Okrent put it, “Prohibition offered a graduate course for training in the gang industry.”)

Same product, comparable level of consumption by the public, comparable toll in addiction and ruined health. The difference was 40 years. Fortunately for Burt, by the time he came on the scene, commerce in his product was regulated, taxed and legal, and Burt could sell it without killing or buying off anyone. And most of us are happier that way.

This is not at all to say that alcohol takes a negligible toll. Quite the contrary. Alcohol kills about 80,000 people a year. Chalk up another 440,000 to tobacco. And that’s where the comparison gets interesting. Heroin only kills about 2,000. Another 2,000 die from cocaine. We may lose another 1,000 to meth. And absolutely no one dies from marijuana. It is madness that we (quite properly) let the Uncle Burts sit on the Chamber of Commerce while we derive tax money from what they do, but at the same time we spend perhaps $25.7 billion a year on Drug Prohibition, addressing a problem that takes only approximately 6 percent as many lives as does alcohol, and less than 1 percent of the death toll of alcohol and tobacco together.

No one says drugs are good for you. But the Prohibitions are worse. They engender the criminal gangs, because only gangs are strong enough to withstand law enforcement. But once the gangs learn that trick, there may be no law enforcement left — witness the Mexican status quo. In any event, law enforcement will always lose in the long run. It was ever thus; Okrent in his book Last Call retells the story of the Prohibition “navy,” the huge new Coast Guard presence created to block rum running. It worked — for a while. Then the rum runners just started buying boats from the same shipyards that made the Coast Guard craft — and equipped them with machine guns. The rum flowed again.

You can create policies that will predictably put violent criminals in charge of the marketing of addictive substances. But you cannot legislate abstinence, and in the face of that reality, Prohibitions will inevitably fail. In fact, they do worse than fail: they magnify the behavior they seek to suppress. That fact was recently borne out for the thousandth time by a new study on potency of cannabis, cocaine and opiates in the wake of our 40-year War on Drugs published in BMJ Open (a peer-reviewed publication of the British Medical Journal). The basic conclusion: everything is much more potent than it used to be — and cheaper.

This substantiates yet again a widely-recognized “iron law” of prohibition, observed by many economists, including Milton Friedman: “The more intense the law enforcement, the more potent the prohibited substance becomes.” Likewise, there is little evidence to suggest that there are fewer users after all this.

What prohibitions add to the toll of drugs is a trail of lives ruined by drug enforcement.

It starts with the new generation of violent drug gangs, so knowingly chronicled in former reporter David Simon’s television show The Wire, successors to Al Capone and his friends.

For statistics, you can read the National Drug Intelligence Center’s most recent National Gang Threat Assessment. Here’s a good one: “There are approximately 1.4 million active street, prison, and [outlaw motorcycle] gang members comprising more than 33,000 gangs in the United States.” They commit 48 percent of the violent crime in the whole country. And they typically start with drugs and then start moving into other endeavors, criminal and otherwise.

Wouldn’t you really rather have Uncle Burt?

Even the violent crime and the corruption, for my money, aren’t the worst. The worst is the over-incarceration. And here we get into statistics which are depressingly familiar. We imprison about 2.4 million of our countrymen, about 1 percent of our population, making us the undisputed champion jailer among the nations of the world, and fully a quarter of the inmates are there for drug offenses, mostly thanks to mandatory minimum sentences.

Beyond statistics, the reports on the quality of life there seem unanimous: they are places where human lives and potential are agonizingly wasted, under the supervision of staff who could not care less. Piper Kerman memorably commented, in the peroration to her prison memoir Orange Is the New Black: “What is the point, what is the reason, to lock people away for years, when it seems to mean so very little, even to the jailers who hold the key? How can a prisoner understand their punishment to have been worthwhile to anyone, when it’s dealt in a way so offhand and indifferent?”

And of course the ruination of drug offenders’ lives is only beginning when they are released. A felony record will make you ineligible for most professional licenses, will render you virtually unemployable, and, if you are an immigrant, will likely ensure your deportation. Almost every sentence thus becomes a life sentence. Even during Prohibition, we generally didn’t send ordinary users to prison, let alone stigmatize them with career-ending sentences.

We need to stop this insanity. Drugs are bad, but the War on Drugs is far worse. We should repeal this Prohibition as we did the last one. It really is beyond sane debate. The War has accomplished nothing good, and made many bad things worse.

Of course, however necessary, decriminalization is a scary thing to do. Maybe the Portuguese experience over the 12 years since that nation decriminalized drugs can be encouraging. There was a slight uptick in the use of drugs; HIV infections went down; treatment went up; adolescent use went down, as did the total of “problematic users.” As did the price of drugs. The world absolutely did not come to an end.

Anyway, I’d rather have Uncle Burt managing the sales, as opposed to Al Capone or The Wire’s Stringer Bell, or Breaking Bad’s Walter White. And you would too.

Jack L.B. Gohn is a partner with Gohn, Hankey & Stichel LLP. The views expressed here are solely his own. See a longer version, with links to his authorities, at