Fight Cigarettes But Legalize Drugs?

A prediction: The day will someday arrive when a man who dares to light up a cigarette on an American street corner will be hauled off to jail, that is if he isn’t first set upon and stoned to death by a mob outraged at the effrontery. And the police, in so hauling, or the mob, in so stoning, will scarcely bother to notice the other man on the same street corner, the one who is injecting himself with a syringe full of heroin.

Consider the opposite trajectories in public sentiment as it pertains to cigarettes and drugs. Cigarette smokers are being banished from an ever-growing list of indoor spaces, even to include, in some cities, one’s own home should his neighbor be discomfited by the slightest trace of tobacco smoke wafting in from next door. And cigarettes are unwelcome at some outdoor sports arenas and even in the wide open spaces of beaches and public parks, no matter how remote the smoker may be from others.

Even as this national ethos is building against cigarettes, even as the smokers themselves are being corralled into ever-shrinking enclaves (the better for others to scorn them), one sees a paradoxical but growing cry for the legalization of drugs, a recent manifestation of which was a July 5 op-ed in the Los Angeles Times titled “This Is the U.S. on Drugs.” Co-written by Los Angeles attorney David W. Fleming and Orange County judge David Gray, the piece laments the failure of the “so-called war on drugs,” which, the authors say, has only served to enrich those who produce and sell drugs while failing to reduce their consumption.

Neither Fleming nor Gray can be dismissed as some kind of loose-living libertine, and indeed both have solid establishment credentials. Fleming is an attorney with the white shoe law firm of Latham & Watkins and boasts a long record of civic and charitable involvement. Gray was appointed to the bench in 1983 by a Republican, then-Governor George Deukmejian, and in 1994 he was the Libertarian Party’s candidate for the Senate. (Alas, he only came up 6.2 million votes shy of defeating Barbara Boxer.)

Fleming and Gray join a long list of establishment types who have come out for some form of drug legalization, and like many of them they argue their case from a libertarian point of view. “The mission of the criminal justice system should always be to protect us from one another and not from ourselves,” they write. “That means that drug users who drive a motor vehicle or commit other crimes while under the influence of these drugs would continue to be held criminally responsible for their actions, with strict penalties. But that said, the system should not be used to protect us from ourselves.”

Such thinking is today gaining currency, and to those with an open mind on the matter Fleming and Gray’s arguments may indeed be persuasive. But it’s interesting to note that even Fleming and Gray propose replacing the large and unwieldy government apparatus which today fights the war on drugs with an arguably larger and more unwieldy one that would regulate and tax the use of those same drugs. “We could generate billions of dollars by taxing the stuff,” they say, “just as we do with tobacco and alcohol.”

And how would they spend those billions of dollars, you ask. In the treatment of drug addiction, of course.

So, if I understand the argument, the government should cease its wasteful prohibition of drugs, allowing any and all so inclined to consume any and all substances, all of which will be regulated and taxed for the purpose of reducing their consumption.

But if these advocates for legalization remain true to libertarian principles, shouldn’t they argue against any government role at all in the production and consumption of drugs? And if drugs are decriminalized, shouldn’t free markets dictate how they are sold and to whom? With government prohibitions — and, presumably, any social stigma — removed, shouldn’t drug producers be allowed, even encouraged, to strive for an increase in their market shares through advertisement of their products?

But if one is willing, as are Fleming and Gray, to depart from such an unadulterated libertarian position and admit that drug use ought to be discouraged, what then is the government’s proper role in the discouraging? I am not unsympathetic to libertarian arguments, whether they pertain to drugs or anything else, but if those arguments fly in the face of common sense and experience, the prudent man pauses to reflect. And here in California, experience has brought many to just such a reflection.

In 2000, California voters passed what was known as Proposition 36, more formally known as the Substance Abuse and Crime Prevention Act, which gave nonviolent drug offenders the option of enrolling in treatment rather than going to jail. But a study conducted in 2007 found that less than half of those sentenced under Proposition 36 completed a treatment program, and that more than a quarter of them failed to show up for treatment at all. To those who understand the manipulativeness and self-absorption of the typical drug addict, Proposition 36 has turned out to be the farce most knew it would be before it passed.

Put simply, without the threat of jail time, drug users will merely use each successive arrest and empty promise of treatment as a free pass. Without accountability there is no hope of reform.

But for all the inefficiencies and even horrors that have attended the drug war — and I acknowledge there have been many — there remains a compelling philosophical argument for keeping drugs illegal, one that cannot be negated by any appeals to pragmatism or libertarian “freedom.” If we allow that people should be free to use drugs, are we not acquiescing to some uncertain number of them becoming addicted to those drugs? Can a man then be said to be truly free if he has allowed himself to become enslaved to his addiction? And are we to stand idly by and observe as our fellow citizens become thus enslaved?

Or do we rather have an obligation, as Edmund Burke said, to place “moral chains” on our appetites? “Society cannot exist,” Burke wrote, “unless a controlling power upon will and appetite be placed somewhere; and the less of it there is within, the more there must be without. It is ordained in the eternal constitution of things, that men of intemperate minds cannot be free. Their passions forge their fetters.”

I am not so very old, but I am old enough to remember when taking drugs was considered shameful. Someday soon the only habit freighted with such a stigma will be smoking cigarettes. This is not progress.