I think one thing which plagues the war on drugs, perhaps more than most other areas of public policy, is the tendency for simple, well meaning policies to produce unintended consequences. Of course this is a problem for every area of public policy, from the way that welfare helped create unemployment and single parent families to the host of unintended beneficiaries receiving farm subsidies, every policy is subject to unintended consequences. However the war on drugs seems to have more than its fair share.
Perhaps it is because policy tends to be more driven by emotion than in other areas. People do tend to get more worked up about drug dealers than farm policy. Or maybe it is because there are few whose livelihood depend on drug policy, so less independent analysis is done of drug laws than business regulations. Whatever the reason, drug regulations tend to produce more side effects than other areas of the law.
Perhaps an example will help. It isn't exactly a drug law example, but from the related area of regulation of alcohol.
Recently I was discussing the laws in the United States restricting access to alcohol by those under 211. This was around the same time I was writing on the same topic in this blog. My conversation followed the normal pattern for such discussions. As there were no teenagers present, no one mentioned that they could join the military but not buy a beer, but the other tired old topic did arise. That being Europe's general lack of age based drinking restrictions.
However, I will not be mentioning that particular topic. First, because it has been discussed ad nauseam. Second, and more importantly, because it is one of those topics which "everyone knows", yet about which almost nothing concrete can be established. Yes, Europe lacks laws concerning drinking by those under 21, but what effect does that have? Many people have provided anecdotal evidence of teens being "more responsible" about alcohol, but is it true? Europe not only has no laws about drinking under age, but it also differs in a number of other respects. For example many nations have very harsh laws concerning drinking and driving, so it is quite possible teens do not drink and drive more because of those laws than because of the liberal drinking restrictions. The point being that it is very hard to control for other differences, making it a very poor example.
That being the case, I am going to avoid the argument that by prohibiting teen drinking we create a more irresponsible attitude toward drinking among teens. It is possible that is the case, it is possible that the opposite is true. Since I can't make a strong case either way, I will focus on what I can prove, that our age based restrictions tend to promote excessive binge drinking.
Now, let me start by saying that the purpose of these restrictions is quite simple. The laws exist to keep teenagers from drinking and to prevent adults from selling or giving alcohol to teens. And by and large the laws do achieve that end. Not completely, as the amount of teenage drinking proves, but they definitely make it more difficult for teens to drink, and much more difficult for them to obtain alcohol2. So, in this regard they are successful.
What I am going to add, however, is that precisely because they succeed there, they lead to more dangerous behavior among those teens who do drink. Not only that, but that such an outcome is a logically necessary outcome of the law.
Think about the situation of the teen who wants to drink. Provided he does not ahve a willing older sibling or friend, he is unlikely to have regular access to alcohol, which means that when he does have access, he is going to purchase as much alcohol as his limited means allow. As he will be unable to go back for more should he run out, it only makes sense o adopt an attitude that too much is better than not enough.
However, having obtained the alcohol he is confronted with a new problem, leftovers. As he is a teenager he is not supposed to be in possession of alcohol. He can hardly bring it home and store it for later. He doesn't want to keep it in his car or home, as it is illegal for him to possess it. So, as a result, he will make sure he consumes every bit of alcohol in his possession. Leftovers will simply be wasted, as they cannot be kept for later.
Now I am not about to commit the mistake so many do after raising such issues, and follow up an unintended consequence with the argument "thus we should eliminate the drinking age". The simple fact that a law has unintended consequences does not logically mean that the law should be repealed. What it does mean is that we should examine the law again, and see if we still believe it is important enough to maintain despite the additional costs3. In some cases that may mean that a law should be repealed, but in many others, most likely we will decide that the law is still worth the added costs.
However, even that was not my main point. I do not want to argue the merits of enforcing a minimum age for drinking. All I wanted to point out was that laws, even seemingly simple laws such as those concerning drinking ages, often have unintended consequences. And not just unintended consequences, but consequences which are contrary to the goals of the law itself. Doubtless those who wrote laws about drinking ages were equally opposed to teenage binge drinking, yet inadvertently that is precisely what they encouraged.
And that is my point. When we look at drug laws, either in hindsight or when proposing new laws, we need to look not just at the explicit goals and the obvious effects, we need to delve a bit deeper and try to see if there are any other effects, any unintended consequences, and ask ourselves if the law is still worth enforcing given all we know about the costs.
1. This is a good analogy to the federal take over of drug laws I mentioned in my last post. Drinking age used to be purely the concern of the states, but the federal government, using highway funds to blackmail states, forced the states to follow federal policy. This is a topic I may deal with at greater length in my main blog, as federalism is a major topic there, but for the moment I would point out that, even where the federal government has no explicit enforcement policy, the control of purse strings gives the federal government effective control. Thus even matters which are nominally controlled by the states are often really controlled by the central government.
2. I cannot speak for the present day, but during my own teen years we often commented on the fact that it was easier to find drugs than alcohol. Perhaps I should mention that as another unintended consequence, the relative difficulty of finding alcohol versus drugs leading those seeking an altered state to drugs rather than alcohol. But then again, it is hard to say whether using drugs or drinking alcohol is a worse choice, especially given the results of long term alcohol abuse. So I think I will leave that topic alone for the moment.
3. In the case of drinking ages, I think most will consider them worth maintaining even with the added incentive to excessive drinking by teens. And, I must admit, I can understand the logic. The teens who are driven to binge drinking are those teens who would be drinking whether or not the laws were in effect. However, were the laws repealed, there are doubtless other teens who would drink who currently do not. So, by keeping the law you simply increase the amount consumed by a set number of teens. If you repeal the laws, those specific teens will still drink, just not quite so much, but another set of teens will also begin drinking. So the laws limit the number of individuals who drink, even if it does increase slightly the amount drunk per person.
Please do not think that I am being one sided because of the example I provided, I want to look for unintended consequences of legalization as well as criminalization. I even want to look for the unintended results of allowing greater variability between the states. (For example, to find fault with my favorite cause, federalism, there is a great likelihood of cross border smuggling should a state enact sweeping legalization without their neighbors doing the same. This would doubtless create a very profitable criminal traffic into neighboring state, offsetting much of the decline in crime legalization would bring by creating a matching, or even greater, increase in crime in nearby states.)
I only chose a law relating to criminalization because such laws are all we currently have. At present legalization is a dead issue, the federal government having refused to allow a handful of states to enact even limited medical marijuana laws. As I have to work with what I have available, I am forced to draw examples from the laws making drugs illegal. Were there legalization measures available to criticize, I would take those on as well. Unfortunately that is not an option at the moment.
Originally Posted on Examining the War on Drugs on 2008/05/31.