Alexander Deane: The case against legalising drugs

Alex Deane, author of The Great Abdication and a CentreRight contributor, rebuts some of the arguments in favour of legalising drugs.

As a junior criminal barrister, perhaps the majority of my work concerns drug addicts or drug dealers.  I am often asked by friends and acquaintances whether it might be better simply to legalise drugs, circumventing the problems of policing them and potentially making treatment easier.  This attitude is one that is increasingly common. The “Transform” campaign to legalise all drugs is one that has garnered support of late, as Trevor Kavanagh pointed out in a column in The Sun.  Universal or significant legalisation of hard drugs is an increasingly popular policy amongst those on the libertarian wing of the Conservative Party and the right more generally.

I do not claim any particular expertise on the topic.  However, I believe that a number of negative effects inevitably flow from legalisation and I thought that I would therefore set them out here.

Drugs will be more freely available

Whatever the industrial capabilities and marketing acumen of the underground drug business now, they are certain to be dwarfed by those of commercial business conducted openly.  It is often said that it is easy to buy drugs under the status quo– but don’t you think that it will be easier when they are sold by shops on your high street?  Drugs will be ubiquitous in an environment in which they are legal.

Drugs will be taken by more people

Legalising drugs will remove the inhibition people feel about taking them, and advertising will present them as attractive.  Legality leads to greater social acceptance.

Shops openly selling drugs are more convenient and attractive than making a purchase in a dangerous environment.

The result of these changes, taken together, would be a growth of the number of addicts.  Apart from the potential for getting into trouble, illegality makes obtaining drugs inconvenient and less likely to be purchased on impulse.   

Drug addicts would come to this country to get their drugs

Hard drugs would remain illegal in other countries even if the United Kingdom were to legalise them (some nations would never follow our lead and, even if the policy were a tremendous success, others would not do so straight away).  We would therefore be buying ourselves a drug tourist problem.  Anything to be gained by the spending that that tourism would attract would have to be measured against the harm done to the areas in which people would come to snort / shoot up / etc.  Amsterdam thought that this would yield great benefits – now the Dutch are hardly so certain.  The city’s centre sees large numbers of “junkies” whose activities presumably aren’t conducive to regular tourism – or indeed, pleasant life in Amsterdam generally – and, though precise figures are difficult to obtain, studies suggest that many of the city’s addicts have come from other countries to pursue their habit: many of the city’s prostitutes are foreign addicts, for example. 

Those who favour legalisation offer a series of arguments in favour of it.  Each of them, I shall contend, is false.  The situation with regard to each argument would remain unchanged were hard drugs legalised – or worsen.

Claim: the illegal market will be ended
Truth: the illegal sale of drugs will continue

It’s claimed that if drugs are available legally, they will cease to be sold illegally, ridding Britain of the perils of the drug underworld and the thuggery that goes with it.  Though drugs will certainly be cheaper given economies of sale and so forth (and putting aside the question of whether that is a good thing), that this will put drug barons out of business is actually far from clear, for the following reasons. 

Businesses marketing drugs openly will have to pay taxes and business overheads and will be required to uphold standards of human rights in the production of their products.  Illegal dealers won’t.  That will almost certainly constitute a significant difference in transaction margins, given the duty currently imposed on the mainstream legal recreational drugs, alcohol and tobacco.  A level of taxation lower than the (very high) rate on cigarettes could not be justified – it is inconceivable that the state would impose a higher tax on tobacco than cannabis, or ecstasy, or heroin.  Given that part of the justification for tax on cigarettes and alcohol is the desire to deter people from using them because of the health risks concerned, and given the enormous health risks posed by – for example – crack cocaine, the tax on newly legal hard drugs would have to be swingeing.

The financial difference between the legal and illegal trades will therefore mean that dealing in drugs illegally will continue to be very profitable

Furthermore, most schemes for legalisation include a caveat of a maximum amount permissible for sale – either strength or quantity, or both – to prevent overdosing, which illegal dealers will ignore.  Drug users often want to take lots of their drug of choice, more than the state would sanction selling them (this is particularly the case given the swift-growing tolerance to drugs they build up).  Certainly, the desire to take drugs in inherently unsafe amounts is not rational, but people make irrational choices when under the influence of drugs.  The state will not condone these choices, given the innate health risks in taking more than a determined safe level of a drug, but illegal dealers will be happy to facilitate them.  Those wishing to take more and more drugs, or buy in bulk amounts that for safety reasons the state won’t condone, will have to go to the illegal market to get them.

Thirdly, illegal dealers will accept “markers” and undertakings from addicts that legitimate businesses won’t, as the illegal dealer has violence available to him as a tool to enforce the collection of a debt that the legitimate sector might regard as too risky to allow a customer to undertake.  Some addicts will not be able to obtain their product legally as they will be banned from taking it by the courts or the law, just as some people are banned from taking alcohol due to their behaviour or their age.  Such customers will be supplied by illegal dealers.

So illegal dealers will undercut the state regulated market on price, sell drugs in larger quantities, sell stronger drugs, and accept high levels of debt from addicts.  For all these reasons, illegal dealing would continue in an environment in which the sale of drugs is legal.

Even if a diminution or elimination of the illegal sector would indeed come about as a result of legalisation, there’s a flip side to the benefits of the creation a legitimate market: it will lead to the creation of legitimate drug barons, who will have a financial interest in the promotion and continued use of powerful and harmful drugs.  Such captains of the “recreational” drug industry will know how to market their product to their best advantage, and will have the help of cutting edge advertising companies to help them do it. Is it such a good idea to create such a sector?  Its leaders will be motivated to compete against one another, seek out new markets for their products, and new ways of appealing to potential customers.

Claim: people won’t have to commit crimes to get drugs any more, so the crime / drug connection will be broken
Truth: addicts will still commit crime to feed their habit

Drugs will still cost something even if the free market drives down price.  Large quantities are required as addicts swiftly develop tolerances that mean the same amount that gave you a buzz yesterday is not enough today, and even more will be needed for a buzz tomorrow.1

Furthermore, even presuming that the addict’s drug of choice is cheaper, it is usually difficult and often impossible to hold down work whilst addicted.   

Addicts will therefore still want drugs in large quantities and not have money for them.  This is the case whether those drugs are legal or not.  They will finance their addictions the same way they do now – from crime.

Claim: people should be free to take drugs
Truth: you’re never truly “free” if you’re a drug taker

Libertarians maintain that people should be free to do as they wish, as long as they do not harm others.  But the “choice” to take drugs is not a free choice at all – for addiction vitiates consent.  Addicts do not “choose” to take drugs, beyond the very first “hit” at least – they are compelled to seek out the drug by dint of an addiction that makes them suffer physically without it.

In addition to the addiction/consent issue, peer pressure, particularly in some settings like the clubbing scene, should be considered: for it is often peer pressure that leads to that first hit.   

Drug use has a sub-culture of its own.  At the moment, the law is empowered to investigate it, and those who encourage others to take drugs and supply them are culpable in law and can be prosecuted.  If drugs were to be legalised, the guy in the club making a living pushing pills on his teen acquaintances is no worse in law than the chap who urges another pint on you before closing.

The argument about the freedom of the individual may seem sound to an impartial, academic observer, but applied to the sink estates of Britain, where the policeman is the only thing (potentially) between a child and a dealer, it seems very different.  Of course, proponents of greater freedom claim that drugs will still be regulated, won’t be supplied to children, etcetera – but if they think that the trade in hard drugs will be easier to regulate in a legal environment in which it is legitimate to carry some drugs, than under the status quo, they are wrong – and the effect of the recent relaxation in the law on cannabis shows that.  In some environments, without the comfortable pleasures of monied living and natural restriction of well educated, employed families and peers, it is only the law that acts as a brake on drug taking – remove it, and the unfortunate people living there will suffer (this is the logic behind an old and very good article by Katie Grant claim in The Spectator [requires subscription] that legalising drugs will harm the poor the most.)  The Gallowgate estate in Glasgow is home to dozens of bereaved families who have lost loved ones to drugs.  It is also home to some of the most fervent advocates of tougher drug laws.  No coincidence.

Claim: the strain on policing will be lessened
Truth: it won’t be

Policing the drug trade is difficult.  That is an understatement.  But there is a difference between realising the reality of a situation and condoning it.  We don’t simply give up on something we think is right because it is hard.  Crime happens and perhaps we will never stamp it out, but we still try.  Society is entitled to a moral position on drug taking.  Hitherto, whilst individual politicians may have demurred from it, the consensus has been that drugs are a corrosive and pernicious influence on society and ought to be resisted.   

By dint of their general availability, legal drugs find their way with ease than to those who should not have them, principally children.  That certainly happens now with alcohol and cigarettes – why won’t it with other drugs?  It is easier to crack down on drugs which should not be in anyone’s possession than to police an environment in which it is acceptable for A and B to have the drug, but not their friend C.  Certainly, some children may have access to illegal drugs at the moment.  But legality and availability will mean that it will happen a great deal more.

That is just one of the reasons that the supposed savings that flow from legality as far as police resources are concerned are unlikely to come about.  Furthermore, the police will still patrol for illegal dealers and border controls will still exist to stop smuggling, illegal immigrants and terrorists.  These exercises are “dual purpose” – they would not stop with the legalisation of drugs and should not be presented as savings in a legalised regime.

Furthermore, for the reasons outlined above, drug dealers will still peddle illegal drugs and drug addicts will still commit crimes to buy drugs.   

Claim: drugs have an illicit appeal by dint of their illegality
Truth: perhaps – but how important is that, exactly?

We are often told that people take drugs because they are illegal – they feel a great illicit urge to do the forbidden.

This argument is greatly overstated.  People keenly take legal drugs such as alcohol, and do not need the incentive of illegality to do so.  Surely people take drugs because they are interested in doing so (for whatever reason) in the feeling at the beginning, and are addicted thereafter – whether that drug is legal or not.  It is that first decision to take the drug or not that we must attempt to affect.

Furthermore, the “illicit appeal” argument applies to all things that are illegal, such as vandalism or violence.  We do not advocate legalising such things because some people feel the need to do them.

If the “illicit appeal” argument is really true, what would happen in an environment in which hard drugs were legal?  Such people, motivated as we are told they are by the illicit appeal of drugs, would move to other, even worse drugs, even more dangerous drugs, drugs designed for use on animals, etcetera.

The claim that the current ban serves to give drugs an illicit attraction should be examined from another angle, too: what would happen, in terms of appeal, in an environment in which hard drugs were legal?  Perhaps illegality is holding back even more positive portrayals of a drug taking lifestyle in television and amongst celebrities.

Claim: hard drugs should be legal because other drugs are legal
Truth: there is no logic to such an argument

In the argument for legalising hard drugs, a comparison with alcohol or tobacco is often made – if these drugs are legal, why shouldn’t other drugs be legal, too?  But the comparison is – to put it politely – inexact.   

For cultural and historical reasons, both tobacco and alcohol are legal.  It would be tremendously difficult, given the widespread social acceptance and use of them, to try to ban them (namely the flip side of the analogy people always make between them and other drugs) and I would not want us to try anyway – apart from anything else, because these drugs are not as harmful as the currently banned drugs.  On the other hand, legalising a drug that is currently banned sends a message of approval about taking that drug.  The position on alcohol and tobacco is clear – even though, for reasons out of the control of current governments, these drugs are legal, we attempt to discourage excessive use of the former, and the state discourages any use of the latter.  The message on legalising a drug runs contrary to such messages.  We would seem to be condoning the use of such drugs.  There is a symbolic stamp of approval on something that goes from being illegal to legal, and the state’s official position on something is viewed by citizens as important – look at the significance attached to the much smaller step of changing the category in which cannabis appears, or the significance attached by the gay lobby to the state’s attitude to gay marriage. 

Furthermore, the notion that there is parity between hard drugs and the legal drugs is false.  Whilst certainly dangerous drugs with frequently unpleasant effects, neither tobacco nor alcohol pose the magnitude of physical danger manifest in single-dose consumption of heroin or crack cocaine.   

Even if there is a parity of potential harm between banned and legal drugs, the presence of harmful drugs on the open market under the status quo is not an argument in favour of having additional harmful drugs available – it is an argument against it.  There are already harmful drugs being taken, to the detriment of public health – adding more will make things worse.  Indeed, just as many people both smoke and drink, some will smoke, drink and take drugs that are presently illegal.

The cost

I cannot help but feel that those who wish hard drugs to be legalised overlook the human cost of drugs.  Drugs ruin lives.  They ruin families.  The work of perhaps 2/3 of the junior criminal Bar is taken up with the representation of (and social work for) drug addicts.

These individuals suffer – they suffer terribly.  Legalisation says that their suffering is acceptable, or not too unacceptable, and that more suffering like it is acceptable too.

Addicts swiftly develop resistances to their drugs of choice which mean that more and more has to be taken to obtain the same “high.”  Their lives are consumed by their drug.  They are defined by it and live by it.

When drugs have such a catastrophic effect on society, society and the state are entitled – are obliged – to take a moral position on it. The law reflects our moral attitude towards something.  Banning something shows that it is disapproved of.  Legalising the previously illegal indicates that the state approves of it. 

Nobody should be encouraged to profit from such suffering.

The purpose of this essay is to show that legalisation would not help our national drug problem, but rather make it worse.  However, it naturally begs the question – is there another route?  For most would agree that the status quo – even if better than a legalised regime – is far from ideal.

The two brief suggestions that follow are not radical or new.  But they have not been taken up thus far.

Education, education, education

Those who favour legalisation claim that education about the perils of drugs is a far more effective policy than a ban.  But informing people about the dangers of drugs is not mutually exclusive with illegality.  Indeed, it might be thought to be more consistent.

Treatment under a regime of illegality can be successful, too.  Addaction is a very successful organisation, for example.

The campaign against smoking in this country has been a successful one.  People must be convinced not to take drugs.  Not merely told, but convinced.  If the harrowing stories of addicts were told, again and again, to school children and in advertisements – as the suffering of long term smokers were broadcast – it would have an effect.  It certainly hasn’t been tried thus far.  The state was not shy about using effective propaganda against a legal drug.  Why should the same tools not be used, with the same persistence and vigour, on illegal drugs, too?

Harsher penalties for dealers

People might believe that we already sentence drug dealers harshly.  We do not.  Though there is a “three strikes” automatic imprisonment for a period of seven years for those convicted on three separate occasions of supplying Class A drugs, those convicted for a first or second time – who will probably have conducted scores if not hundreds of deals by the time they come to court – generally receive between one and four year terms of imprisonment if they are sentenced to custody at all.  Bearing in mind the fact that one serves half of one’s time in custody, that means that generally a two year maximum sentence is served.  Take time off for early release given our very crowded prisons, and the maths – profit made against time served – understandably begins to appeal.

Higher sentences don’t deter people from taking drugs – they’re addicted and cannot make rational choices about their addiction.  But people are deterred from dealing drugs by higher sentences.  Drug dealing often occurs because of close-knit groups who recruit like-minded individuals.  News of but a few harsh sentences amongst such groups spreads quickly.