Prohibitions: Mind Drugs and Policy
By John Alcorn
In my first post about mind drugs, I provided an overview of social-science research about addiction. In this, I focus on policy.
Let’s set the stage with a striking indicator of the trend of acute self-harm by abuse of mind drugs in the USA. In groundbreaking research, Hawre Jalal and co-authors establish that the overall mortality rate of overdoses (“unintentional drug poisonings”) exhibits a long-term pattern of exponential growth, despite many differences and discontinuities in sub-patterns by age, race, region, and type of mind drug. The consistency of the aggregate trend is at once astonishing and puzzling:
“The overall mortality rate for unintentional drug poisonings in the United States grew exponentially from 1979 through 2016. This exponentially increasing mortality rate has tracked along a remarkably smooth trajectory (log linear R2 = 0.99) for at least 38 years. By contrast, the trajectories of mortality rates from individual drugs have not tracked along exponential trajectories. Cocaine was a leading cause in 2005–2006, which was overtaken successively by prescription opioids, then heroin, and then synthetic opioids such as fentanyl. The demographic patterns of deaths due to each drug have also shown substantial variability over time. Until 2010, most deaths were in 40- to 50-year-old persons, from cocaine and increasingly from prescription drugs. Deaths from heroin and then fentanyl have subsequently predominated, affecting younger persons, ages 20 to 40. Mortality rates for males have exceeded those for females for all drugs. Rates for whites exceeded those for blacks for all opioids, but rates were much greater among blacks for cocaine. Death rates for prescription drugs were greater for rural than urban populations. The geographic patterns of deaths also vary by drug. Prescription opioid deaths are widespread across the United States […], whereas heroin and fentanyl deaths are predominantly located in the northeastern United States and methamphetamine deaths in the southwestern United States. Cocaine deaths tend to be associated with urban centers.”
Manolis Galenianos and Alessandro Gavazza report find that the War on Drugs has backfired:
“in the past 30 years the United States has markedly increased the enforcement and severity of its drug laws—the so-called ‘war on drugs’—which has resulted in the tripling of arrests for drug-related offenses. Interestingly, during the same period, drugs have become dramatically cheaper and purer. [… .] our analysis suggests that increasing penalties may have contributed to the observed increased purity and affordability of retail drugs in the United States.”
Carlos Dobkin and Nancy Nicosia find that a targeted ‘surge’ in the War on Drugs, against the market for illicit methamphetamines, had ephemeral results:
“A government effort to reduce the supply of methamphetamine precursors successfully disrupted the methamphetamine market and interrupted a trajectory of increasing usage. The price of methamphetamine tripled and purity declined from 90% to 20%. Simultaneously, amphetamine-related hospital and methamphetamine-related treatment admissions dropped 50% and 35%, respectively. Methamphetamine use among arrestees declined 55%. Although felony methamphetamine arrests fell 50%, there is no evidence of substantial reductions in property or violent crime. The impact was largely temporary. The price returned to its original level within four months; purity, hospital admissions, treatment admissions, and arrests approached pre intervention levels within eighteen months.”
Are there prospects for fresh, constructive policy, compatible with liberty?
“we sort of accept the laws that we have as being optimal—even from a consequentialist standpoint, not even just from a moral standpoint more generally, but having optimal consequences. But why should we accept that? So you think, ‘Okay. The drug laws we have right now, we shouldn’t legalize all of the recreational drugs, because that would just be like chaos.’ You’d be like, ‘Oh, okay. Here are some other drugs that cause a lot of social harm, like alcohol,’ and some people would be like, ‘Oh, we tried that before and it was terrible.’ But why would we think that right now we’re at the optimum when it comes to the justice of our laws?” (p. 13)
Flanigan discusses mind drugs under the rubric, self-medication:
“self-medication has a clear parallel with informed consent, and I think informed consent is something that a lot of people already accept, so that’s a good foundation to build an argument against paternalism with respect to drug policy. Self-medication includes things like the right to die, the right to use recreational drugs, in addition to investigational drugs and prescription drugs.” (pp. 11-12).
“it is not just that we are punishing people for no good reason. We are punishing people for exercising their natural rights. Individuals have a right to use drugs. [… .] no one should be permitted to drive or operate heavy machinery while under the influence of drugs that impair their ability to do those things; nor should pregnant mothers be permitted to ingest drugs, if it can be proven that those drugs cause substantial risks to their babies [… .] But, in the great majority of cases, drug use does not harm anyone in […] ways that we normally take to merit criminal penalties—and should not be outlawed. [… .] The harm of being unjustly imprisoned is qualitatively comparable (though it usually ends sooner) to the harm of being enslaved. […] scapegoating and stereotyping of drug users and sellers […] is comparable to the racial prejudices of previous generations.”
Some moral philosophers worry that mind drugs and self-medication can become vice. Baruch Spinoza, although hardly a conformist, shares the worry about vice; but argues that prohibitions of vice tend to backfire:
“He who seeks to regulate everything by law is more likely to arouse vices than to reform them. It is best to grant what cannot be abolished, even though it be in itself harmful. How many evils spring from luxury, envy, avarice, drunkenness and the like, yet these are tolerated—vices as they are—because they cannot be prevented by legal enactments.” (Tractatus Theologico-Politicus  Ch. xx, pp. 338-339)
Now, Spinoza’s dichotomy notwithstanding, there also are those who decry prohibition of drugs, but seek to regulate everything about drugs by law. Jim Leitzel writes in this vein. Leitzel explores several broad modalities of drug regulation. He rejects general prohibition, which places an unnecessary burden on those who harmlessly consume drugs:
“Perhaps an easy-to-enforce prohibition would minimize the costs associated with some vice by eliminating it, but such a policy would [be] too constraining on ‘rational’ would-be users.” (p. 10)
Even experts slip readily and fallaciously into focusing entirely on harms—and ignoring (a) benefits from mind drugs and (b) improvements, upon legalization with regulations, in the ratio of benefits to costs of use. There is a tendency arbitrarily to assume that an increase in prevalence is intrinsically adverse. Leitzel explains:
“Much of the public dialogue about vice policy pointedly ignores the potential benefits of vice, focusing only on the costs. As the total costs arise both from the prevalence of vicious behavior and the average cost per ‘use’ or ‘incident,’ policy that is interested in reducing costs might aim either at limiting prevalence, or at reducing the harm per incident. Prevalence and harm-per-incident are not independent, however: policies such as a strict prohibition that try to reduce (or, as ‘zero tolerance’ suggests, eliminate) the prevalence of a vice tend to simultaneously raise the cost per incident.” (p. 9)
For example, as Jonatan Pallesen points out, even a cost-benefit analysis of marijuana by Scott Alexander largely ignores pleasure from marijuana. Pallesen states:
“You cannot […] ignore […] the value of living in a free society. And more importantly, you cannot ignore […] the amount of enjoyment people get from consumption of a recreational good. That is the main benefit the good brings, and to make an analysis of the advantages of the good without considering this is nonsense.”
Leitzel favors a complex regulatory framework, to enable responsible use of mind drugs, and to police ‘problem use.’ He is skeptical of simple sorting:
“If it were possible to separate the diseased or compulsive or irrational decisions from the fully judicious (or even reasonably judicious) ones, then (presumably) a desirable regulatory regime would intervene only on the irrational side of the ledger, leaving rational adults to their own vice-related devices. It is not possible to target regulations in such a fashion, however—indeed, an individual, looking at her own behavior, might have a hard time distinguishing between her tolerably rational and her well-less-than-rational vice decisions.” (p. 8)
Leitzel believes that extant regulations of legal ‘vices’ err on the side of liberty:
“In terms of current vice policies in the United States, some policy regimes regulating legal vices (alcohol and gambling, for instance) fall short of robustness by being insufficiently protective of less-than-rational or addicted consumers.” (p. 9)
Thus Leitzel advocates more stringent regulation of alcohol and gambling (and tobacco?)—and legality of the full range of mind drugs, from marijuana to heroin, with a graded range of controls.
The crux of Leitzel’s regime is licensing:
“All drug control regimes, looked at from the point of view of potential consumers, can be described as variations on the license theme. What steps do you have to take, what hoops must you jump through, to acquire the drug legally, to be a ‘licensed’ user? [… .] acquisition of a license that permits an adult to purchase and consume drugs cannot be particularly burdensome. The licensing system, however, must offer some assistance to those who might develop an unhealthy relationship with drugs.” (p. 102)
Exclusion of mind-drug consumers who harm bystanders, and self-exclusion by mind-drug consumers who mistrust their own ability to consume responsibly, are intrinsic complements to licensing. Self-exclusion is a voluntary device to solve a problem user’s Jeckyl and Hyde problem:
“a person who causes harm under the influence of the drug will lose the privilege of consuming the drug—and the exclusion can be enforced via testing. Such mandatory exclusions built into the regulatory structure can be supplemented with voluntary measures: self-exclusion regimes, which already are popular in gambling regulation.” (p. 103)
Leitzel proposes a double-default system:
“The significant number of dimensions of potential controls […] suggests the possibility of employing a sort of double-default system for the currently illegal drugs. The licensing requirement sets up the initial default, that of being an unlicensed non-consumer. For those who choose to override that default and acquire a buyer’s license, there can be a second set of defaults over the myriad dimensions of drug use to implement a fairly conservative regime for licensed drug acquisition.” (p. 113)
Leitzel sketches a panoply of specific licensing regulations: “the full spectrum of rules will be rather elaborate.” For example, rules will govern:
- Eligibility and requirements to obtain licenses for each type of mind drug. Loss of a drug license is an additional sanction that can be used to dissuade illicit sharing.
- Prescriptions for some types of mind drug.
- Mandatory counseling for use of some types of mind drugs.
- Controls on advertising, to discourage manipulation of consumers.
Availability, modality, quantity, and price:
- Time, place, and manner of consumption (ingestion modes, dosages) for each type of mind drug.
- Waiting periods (advance order requirements), to discourage impulsive consumption.
- Limits on quantities one may purchase, to discourage excessive consumption and illicit sharing: “Quantity controls can limit the extent to which any one licensed individual can undermine the intent of the overall program—an option currently unavailable for alcohol.” (p. 114)
- Strategic pricing of mind drugs, to discourage excessive consumption: “Pricing
(tax inclusive) can increase with quantity, so that the first units of drugs each month, say, cost less than additional units.” (p. 113)
- Traceability of mind drugs, via microtaggants (microscopic, traceable identification particles), to discourage diversion of mind drugs to other persons: “enforcement resources are probably best aimed at diversion to teenagers and at profit-motivated secondary distribution channels. […] Loss of a drug license is an additional sanction that can be used to dissuade illicit sharing.” (p. 114)
- Testing of individuals for drug consumption, as a screening and enforcement mechanism.
- Disclosure of individuals, who hold mind-drug licenses, to employers in sensitive occupations.
Separate maintenance regimes for ‘heavy users’:
“The importance of heavy users to sustaining a black market implies that displacing their demand into licit channels is a key, perhaps essential component of combating illegal drug selling. […] a separate channel of legal supply is probably appropriate, something akin to the maintenance regimes some jurisdictions have in place for opiate users.”
Leitzel includes even a mechanism for individuals to establish long-term phase-out of consumption—temperance planning:
“The regulatory regime can offer some assistance to individuals in implementing their plans for forthcoming temperance, by giving them the opportunity to commit to reduced purchase limits in the future. When a person applies for a heroin license, for example, and chooses her daily, weekly, monthly and annual limits, she might also be able to choose reductions in those limits for future years.” (p. 113)
Leitzel’s complex proposal boils down to a regime of hyper-licensing of consumers of mind drugs.
Jessica Flanigan reports that regulations can backfire. For example, prescription can induce imprudent consumption:
“People think that if we didn’t have prescription requirements, people would accidentally overdose all the time. There’s some evidence from the 70’s that middle income countries in Europe that didn’t enforce prescription requirements actually had lower rates of accidental poisoning. People made riskier choices if they thought that their self-medication choices were authorized by a physician.” (p. 8)
Moreover, William Evans, Ethan Lieber, and Patrick Power report that the reformulation of OxyContin—a change designed to reduce abuse and illicit diversion—backfired by increasing heroin use:
“We attribute the recent quadrupling of heroin death rates to the August 2010 reformulation of an oft-abused prescription opioid, OxyContin. The new abuse-deterrent formulation led many consumers to substitute to an inexpensive alternative, heroin. Using structural break techniques and variation in substitution risk, we find that opioid consumption stops rising in August 2010, heroin deaths begin climbing the following month, and growth in heroin deaths was greater in areas with greater pre-reformulation access to heroin and opioids. The reformulation did not generate a reduction in combined heroin and opioid mortality: each prevented opioid death was replaced with a heroin death.”
“The man of system […] is apt to be very wise in his own conceit; and is often so enamoured with the supposed beauty of his own ideal plan of government, that he cannot suffer the smallest deviation from any part of it. He goes on to establish it completely and in all its parts, without any regard either to the great interests, or to the strong prejudices which may oppose it. He seems to imagine that he can arrange the different members of a great society with as much ease as the hand arranges the different pieces upon a chess-board.”—The Theory of Moral Sentiments, VI.II.42.
To be fair, Leitzel allows the possibility of decentralized experimentation with regulations:
“Different jurisdictions could experiment with different exclusion options, and a set of best practices could emerge” (p. 110)
Gary Becker, Kevin Murphy, and Michael Grossman analyze a different approach to public policy about mind drugs: legalization with taxation, rather than complex regulation. Their model assumes—reasonably, I think—that ‘problem use’ of mind drugs under prohibition involves inelastic demand. (Heavy users are addicts.) Legalization with taxation is then superior to prohibition:
“a monetary tax could cause a greater reduction in output and increase in price than optimal enforcement against the same good would if it were illegal, even though some producers may go underground to avoid a monetary tax. When enforcement is costly, excise taxes and quantity restrictions are not equivalent. [… .] This means, in particular, that fighting a war on drugs by legalizing drug use and taxing consumption may be more effective in reducing consumption than continuing to prohibit the legal use of drugs. [… .] When demand is inelastic, quantity reductions through enforcement against illegal producers are very costly and can be disastrous. [… .] Suppliers who avoid detection make huge profits, which provides them with resources to corrupt officials and gives them incentives even to kill law enforcement officers and competitors.” (pp. 38, 40, & 60)
Broader questions naturally arise: Will legality cause a great increase in prevalence of consumers of mind drugs? Will a panoply of stringent regulations cause many (or even most) consumers of mind drugs to rely on black markets rather than legal supply? Would any major increases in prevalence, addiction, illicit diversion, or black markets become entrenched and difficult to reverse even by re-enactment of prohibition of mind drugs? Even open-minded citizens may reason that legalization of mind drugs is too risky to try because it would be a leap in the dark with unpredictable out-of-sample effects. In a nutshell, given majority rule, advocates of legality must address concerns that the sky will fall.
Robin Hanson proposes an utterly different, market-based mechanism for addressing uncertainty about potential consequences of a major policy change: futarchy, i.e., prediction markets, wherein bettors (predictors) have ‘skin in the game,’ and emergent odds (prices) reveal accountable ‘wisdom of the crowd’ about the likelihood of specific outcomes. For example, there could be a prediction market—specifying dates, parameters, evidence—about changes in prevalence of mind-drug use (measurable by random drug tests), conditional on enactment of a specific policy.
Hanson proposes also a second, novel institutional mechanism: vouching for individuals by insurers. A regime of vouching would hold persons accountable for rule-violation and harms, and would enable individuals voluntarily to abridge their own freedoms (a more nuanced version of Leitzel’s self-exclusion device) in order to qualify for a vouching policy or for lower premiums:
“each person chooses their own ‘constitutional rights,’ and vouchers acquire incentives and opportunity to innovate and adapt, by searching in a large space of ways to discourage crime.”
Might Hanson’s twin institutions—prediction markets + vouchers (insurers)—enable (a) informed, prudent experimentation with mind-drug policies and (b) accountable, voluntary, individual choice of personal freedoms?
In the meanwhile, technology might disrupt drug markets and prohibition—and already has done so. For example, Lena Edlund and Cecilia Machado explain that cell phones reduced turf violence in black markets for mind drugs in the 1990s:
“U.S. homicide rates fell sharply in the early 1990s, a decade that also saw the mainstreaming of cell phones […]. Cell phones may have undercut turf-based street dealing, thus undermining drug-dealing profits of street gangs, entities known to engage in violent crime. Studying county level data for the years 1970-2009 we find that the expansion of cellular phone service […] lowered homicide rates in the 1990s. Furthermore, effects were concentrated in urban counties; among Black or Hispanic males; and more gang/drug-associated homicides.”
The internet profoundly disrupts and changes some markets. Leitzel calls attention to the emergence of vice 3.0:
“The internet can go beyond reducing information and transaction costs and enhancing privacy; rather, it can facilitate a wholesale transformation in the nature of commercial vice [… .] Personalized drugs might be designed and purchased via the web, or fabricated at home from web-acquired directions on 3D printers.” (p. 16)
Internet transformation of ‘vice markets’ will feature in our next topic: prohibition of sex markets. If you would like background readings, I recommend Michael Sandel, “Market Reasoning as Moral Reasoning”; Scott Peppet, “Prostitution 3.0?”; and Samuel Lee & Petra Persson, “Human Trafficking and Regulating Prostitution” (MS 2018).
John Alcorn is Principal Lecturer in Formal Organizations, Shelby Cullom Davis Endowment, Trinity College, Connecticut.