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.