I find this to be an interesting and frustrating topic. Let me take a somewhat different approach to it, one that I use when I engage the issue in a policy class I teach.
I begin with two assumptions.
- There is a universal desire for intoxication among human beings. This is clearly exhibited by the demand for intoxicants both cross nationally and over time.
- There is a justification for regulating access to intoxicants. Even “smoke em if you got em” libertarians do not condone distribution of intoxicants to minors (even if they might quibble over the precise age that prohibition should end).
From this point, I believe that one can make a strong case that regulations should be designed to channel the universal desire for intoxication toward those intoxicants that are the least harmful (and thus carry fewer negative externalities). One might imagine that this could be accomplished via taxation. This would be good news for those who enjoy psilocybin mushrooms or marijuana; bad news for those who smoke cigarettes or crystal meth. One might assume that such a regime—rather than a blanket prohibition of anything other than alcohol and tobacco—would create incentives for those seeking intoxication to replace a more toxic drug with a less toxic drug.
As a generalization, I am far more comfortable with laws that focus on the activities one does while intoxicated rather than criminalizing the mere fact that one gets intoxicated or is in the possession of intoxicants.
For example, while I would not criminalize the possession or use of intoxicants, I would have no problem with a zero-tolerance policy on driving while intoxicated (or engaging in other activities that require sobriety) backed with significant criminal penalties.
One can also imagine that the market would come to play a significant role. Some private insurers already have risk-based schemes in place (for example, life insurance is more expensive for cigarette smokers—and yes, they will take a urine sample—than for non-smokers). Given that this is a private and voluntary transaction between adults, I have no problem with setting rates based on risk. One can imagine that if we had drug regulations that focused on the toxicity of intoxicants, insurers would follow suit. Certainly, employers, landlords, car rental agencies…you name it…could adopt comparable schemes. They are free to control their property and those wishing to engage in voluntary transactions with these firms are free to walk away from any arrangement they find overly invasive.
There are other unresolved questions. If we moved toward a harm-based regime for drug regulation, would the government or some third party need to assume a role in regulating or certifying the purity of the drugs in question? There is a strong case for this.
Let me give a brief anecdote. A few years ago, the price of cocaine had fallen dramatically. While demand was relatively stable, there was an oversupply (more evidence of our successful war on drugs). Dealers who could no longer make a profit selling cocaine, moved into heroin. Unfortunately, they did not have sufficient experience in cutting the heroin so there was both wild variability in the purity of the heroin and the stuff that was being used to cut it. As one might predict, the end result was a spike in deaths due to overdoses in Connecticut and other states in the New York area. I knew one of the victims quite well. Regulation of purity would have prevented such an occurrence. If we are intent on reducing harm, then regulation of drug purity would appear to be a necessity.
While I still mourn the death of the young man who died from a heroin overdose, I also mourn the deaths of several friends who died from consumption of legal intoxicants (for example, three of my friends have died of lung cancer in the past few years, aged 51, 60 and 64). There is strong statistical evidence that the legal intoxicants they consumed impose a far greater cost on society than many of the alternatives that are criminalized.
Bottom line: A harm-based regime that channeled the universal desire for intoxication into less toxic alternatives won’t solve all the problems. But it seems like a reason-based approach that would be a massive improvement over our pyrrhic war on drugs.
PILEUS 
Your post would certainly represent a vast improvement over today’s mess we call the war on drugs.
But your reasoning represents some problem areas. The over-riding issue is the attraction to an appeal to authority of regulation. Such regulation requires troublesome assumptions.
The first assumption of regulation is that law-makers will remain, if not omniscient manipulators of incentives, at least benevolent and non-invasive, ever vigilant reviewers of the negative externalities caused by their legislation. Second, while your use of taxation and its underlying motivation is attractive, it presumes that the government needs more money. That is the last thing it needs. See assumption #1. Third, it assumes regulation is an effective and at least practically efficient method of attaining desired ends. That is demonstrably untrue.
The last assumption is more subtle, but it is perhaps the most foundational and central. And it concerns the society and culture in which we wish to live. In schools, jobs, and government, the march toward authority and the nanny state, and robotic subservience to our betters doubtlessly produces a very troublesome result; a passive, listless and disengaged populace who rely on rules for life guidance, or ignore them altogether.
Do we really wish to continue our advancement to perpetual childhood as an optimal cultural state? Is that how we nurture our children in order to produce actualized adults? I submit that over-reaching and misguided authority is the number one job friction. Why do we continually treat our citizens as childish idiots?
Added to that, humans are genetically wired as social and tribal AND self-autonomous; we are much more susceptible to influence from our families and friends than we are to a police state.
It may be impossible to cite regulation where all these assumptions remain true over time. And there must be at least some concession that our ever encroaching state and its ‘solutions’ to societal problems are part of the problem (even perpetuate it), not the solution. Take for example, the war on drugs. We are killing people; 150,000 in Mexico last year alone.
Which uncovers another problem with regulation; ridding ourselves of the war on drugs remains a faint hope. Entrenched interest in the status quo is now firm and prosperous.
Still, your taxation suggestion may be the only practical avenue in which to progress; the state may allow drugs not from any philosophical or moral stance, but for the tawdry excuse that it needs the money. And only a small minority actually believes we can nurture a society where folks both help each other and internalize their choices. You know, like adults.
As to regulating quality, please consider allowing markets and civil courts to establish their own direction. We should by now view any regulation with the prejudice that it has earned.
Next up, the war on poverty, which may do more harm to our society than the war on drugs. Certainly condemning a whole swath of folks to inter-generational idleness cannot be healthy. One could not dream of a more screwed up set of incentives if self-worth, accomplishment and adulthood were the goals.
Damn.
@Jim
Thanks for your comments, Jim. A few quick responses. The first two assumptions that you find troublesome are not assumptions I make nor are they really necessary. For example, policymakers need not be seeking revenues when they write laws that impose fines (indeed, often the fines are less than the cost of enforcement). Assumption 3—that regulation can be effective—is actually true. Of course, this is not to say that regulations are effective when taken as a whole (once again, an assumption that no one would make). There are myriad instances of regulatory failure (if not for regulatory failure, there would be little for regulatory scholars to do).
The remainder of your comment is interesting. I would not deny that there has been a “march toward authority and the nanny state” that produces “a passive, listless and disengaged populace.” Read Buchanan’s “Afraid to Be Free” to find a pretty convincing presentation of this thesis.
In the end, I think we would both agree that the current war on drugs has been a failure and a tragedy. The goal of my post was simply to propose a slightly different way of thinking through the issue that would put an end to the foolish war while better managing the risks associated with intoxicants.
I found your post very refreshing and I agree 100 %. I would just add it is also important to take a look from the other side of the border. Some Mexican states are living in constant violence. Paramilitares in Colombia threaten civil poblation. Central American governments have less money than the drug cartels, therefore all police and state aparus is ineffective in this sense. There is no change awaiting ahead, since too many people in US, Canada and Europe consume drugs. They don´t care and it doesn´t surprise me. But the obvious moral barrer is always present and makes us behave schizophrenically over certain issues. It is the same as with bad neighbours, who constantly harass you but you are not able to do anything because you think it is inappropriate..
We just have to step ahead and make our society go through this obvious moral hazards without being overinfluenced by any lobby, especially Christian one.