In response to a question about libertarianism, Matt Yglesias recently had this to say:

The right to have full-scale commercial production, marketing, distribution, and sales of fentanyl is compatible with a similar system of liberty for all. But it would also be a huge catastrophe for human welfare. I think we’re all familiar with the flaws and shortcomings of the so-called “War on Drugs.” At the same time, we can also see the very significant harm that the sale and distribution of fentanyl are causing in the United States, even as it continues to be illegal. If manufacturing, distribution, and sale were allowed, it would be much cheaper and more widely available — we’d have more addicts, more ruined lives, and more overdose deaths. But even worse, we’d have something like the advertising boom we’re currently seeing for sports gambling with large, sophisticated players investing in creating the largest possible new cohort of addicts.

This might be correct, but I am not at all convinced by the argument.  Instead, I suspect that the boom in fentanyl use (and the resulting drug overdoses), is more of a consequence of the War on Drugs.  Here are a few facts to consider:

1. In the 2000s and early 2010s, there was an increase in the abuse of legal opioids such as Oxycontin.  The federal government responded by cracking down of Oxycontin prescriptions.  As this legal medication became more difficult to obtain, addicts switched to illegal alternatives such as fentanyl.  The new policy turned out to be a spectacular failure, as opioid deaths skyrocketed much higher in the years after the crackdown on Oxycontin use.  A graph in a National Affairs  article shows the increase:

2.  There is other evidence that evidence that the rise in opioid deaths is linked to the illegal status of narcotics.  The same National Affairs article describes the consequence of a black market in drugs, where quality controls are nonexistent:

Late last year, the Wall Street Journal reported on three high-status casual drug users — an investment banker, a lawyer, and a social worker — who ordered cocaine from the same New York delivery service. The drugs were laced with fentanyl; all three died.

Such stories — of overdose death among people who are not the conventional “faces of addiction” — have grown increasingly common.

Some might argue that they got what they deserved, as they recklessly chose to consume an illegal product.  I don’t believe that’s the right way to think about the issue.  I view these tragedies as “collateral damage” in the War on Drugs.  If cocaine were legal, all three people would likely still be alive today.

3.  I don’t know how many people would use narcotics if they were legal.  But I suspect the answer is not “most people”.  Look at the death rate from overdoses during the early 1900s, a time when opioids were legal in the US.  Admittedly, modern products like fentanyl are more dangerous than opium or heroin.  But even back in the pre-fentanyl 1990s, the US overdose death rate was comparable to the early 1900s (a time when hospital emergency room treatments for overdoses were presumably pretty primitive.) 

As is so often the case in public policy, this is a question of elasticities.  How much would legalizing drugs increase the rate of drug addiction?  I don’t know anyone who would decide to go out and consume fentanyl, but I don’t doubt that in a country as large as the US the effect of legalization would be to substantially boost drug use, perhaps by millions of people.

At the same time, full legalization would dramatically improve the safety of drugs in two ways.  First, those who chose to consume opioids would know exactly what dose they were getting, which would reduce the risk of accidental overdose.  Most fatalities seem to be due to people consuming more fentanyl than they anticipated.  Second, if drugs were legal then people might choose to consume less deadly drugs.  That investment banker ended up dying from fentanyl not because he wished to consume fentanyl, rather because in a market where cocaine is illegal the product will often be sold in an adulterated form. 

Thus if legalization doubled drug use, but also led to a 60% decline in overdose deaths for any given drug user, then total deaths from drug use would decline.  Of course there are other side effects to consider, both positive (fewer people in prison and fewer gang wars) and negative (more drug use, which has negative consequences beyond overdose deaths.) 

One could also envision intermediate options, such as legalizing “natural” products such as marijuana, hallucinogenic mushrooms, cocaine and opium, while continuing to ban more deadly synthetic drugs like fentanyl and methamphetamines.  Here the goal would be “harm reduction”.  It’s not that consuming the milder drugs is a good idea, but if people are determined to consume some sort of narcotic, then providing a less dangerous way of getting high will lead to fewer overdose deaths than under a regime where all drugs are illegal, and hence people have no idea what they are consuming.

Another intermediate option would be to fully legalize drugs only for those who do not violate the law or rely on welfare to survive.  People convicted of crimes and/or reliant on public welfare because they are unable to hold a job could be required to enter rehab programs.  

To summarize, I believe that ideas like drug legalization are dismissed too quickly.  It certainly might be a bad idea, but the arguments I’ve seen are not persuasive. In particular, it does no good to cite the horrors of fentanyl use when the fentanyl crisis was created by drug cartels in response to the federal government’s war on less deadly drugs.  We need to do more than simply think about where to go next—we need to think deeply about how we got to this position in the first place. 

PS.  This post is not about libertarianism, and hence I’m not going to comment on Yglesias’s remarks about legal marketing of narcotics, which I regard as an entirely separate issue.  My focus here is on the legalization of drug production and consumption.

PPS.  Some people view decriminalization as the sensible compromise between prohibition and full legalization.  To me, decriminalization seems like the worst of both worlds.  You still have the illegal drug trade with all the crime and accidental overdoses, but you also have increased consumption.