The War on Drugs:
Violence Driven by Flawed Law

Edward J. Dodson

[November 2001]

A study of history combined with the discoveries of biological science strongly suggests that people are born with an instinctive moral sense of right and wrong. Just as some behaviors are so ingrained that they have become involuntary, we have acquired by virtue of some extraordinary process the power of self-contemplation. And, invested in this power is awareness (i.e., consciousness) and conscience (i.e., a recognition that certain behaviors are wrong).

Our biology has not perfected this ingrained moral sense of right and wrong. Philosophy is one of the human endeavors that continues to work on the hard wiring of this behavioral code. The challenge of philosophy is to discover knowledge and make this knowledge generally available to be absorbed and adopted as broadly as possible. There are, of course, enormous obstacles standing in the way of the identification and acceptance of universal moral principles. Throughout most of history, people have lived in small groups, totally or relatively isolated from other groups. We possess technologies today that have the potential to reduce the practice of isolation, but even in a society such as the United States - which contains people of almost every ethnic, racial and cultural heritage - people still choose quite often to live most closely with those they share the closest ethnic, racial and/or cultural connections. Some sociologists have suggested the United States has been much less of a melting pot than a salad bowl.

How is this history and our experience relevant to the current war on drugs? There are many ways to answer this question. The issues are complex, the public policy options (i.e., the formal societal responses) based on contradictory ideas of what constitutes moral behavior on the part of individuals and the obligation of society to intervene to prevent such behavior or, failing prevention, impose penalties as a remedy.

The Lockeian perspective is that the individual is born free into a state of nature. The biological parent nurtures an infant to childhood and until that younger individual is capable of providing for his or her own needs (at least at a very basic, survival level). Nurturing adds another dimension. Positive nurturing creates a special bond between the individuals, a moral sense of obligation to one another that is the basis of intimate cooperation between people living closely together day-to-day. This relationship is voluntary, although during childhood (when we are not yet competent to survive on our own) we are seldom able to escape on our own from a biological parent who is abusive and cruel. As extended family groups chose to live together, to form communities and to share the benefits of living in larger groups (e.g., enhanced security from external threats and dangers of the natural environment, more efficient means of securing food and providing for other needs) the collective moral sense of right and right eventually acquired a formal structure: societal norms, social mores, oral codes of behavior, written laws.

Other dynamics were also at work, unfortunately, so that the end result of the formalization process was not the evolution of our moral sense of right and wrong into systems of law - enforced by the socio-political arrangements and institutions of society - consistent with universal principles of justice. What occurred, generally, is that as groups settled in particular parts of the earth, the instinct to cooperative was subjected to an equally powerful instinct to dominate. Settlement resulted in the appearance of warriors (and warrior-chieftains become kings) and knowledge-bearers (become a priestcraft who interpret the workings of the natural world, create superstitions and rituals and declare themselves as the chosen middlemen between the gods and the general population). Finally, the remainder of the population becomes a source of labor to supply the two non-producing groups with whatever goods and services are demanded.

Tribal societies introduced the use of certain hallucinogenic substances as part of their rituals and religious practices. People discovered that certain plants contained naturally-occurring stimulants, substances that numbed pain or created pleasurable sensations. These plants eventually became valued commodities for exchange. Processed to extract active ingredients, they became part of treatments for injuries and diseases that continue to this day in the form of alternative medicines.

We can recall that in North America, the Europeans arriving in the 16th century brought with them a long history of consuming alcoholic beverages. Many of the tribal societies in the Americas began to accept these beverages in trade for goods, with results almost as disastrous as the exposure to Old World diseases against which they had no resistance. Military adventurism, colonialism and the more benign expansion of trade exposed people everywhere to nature's warehouse of addictive chemicals. Trade in tobacco, in whiskey, in wine, in opium, in cocaine, in marajuana were all part of the world's system of exchange. Science and alchemy combined to identify, isolate and extract the behavior-modifying, mind-expanding and/or mind-numbing experience of consuming these substances. Some portion of the population in every society became periodic or frequent users, for various reasons and with various short-term and long-term consequences.

Protecting markets for the distribution of these substances became one of the functions of the military forces of imperialistic nation-states, much the same as the military participated in the capture and transport of people for sale into slavery. One can make a strong argument that a primary function of the State has been to allocate to a few the power to engage in criminal behavior with impunity. The differences between societies in this respect are differences of degree rather than differences of kind, meaning that there continues to be some level of institutional corruption of moral principles in virtually every society. Laws may be inherently unjust and tightly enforced by a criminal state. Laws may be inherently just on the surface but unfairly enforced or ignored by those charged with enforcement.

Our laws in the United States has always contained elements at odds with moral principles. Many of the framers of the Federal Constitution recognized and accepted that compromise of moral principle was necessary in order to form a union of the colonies declaring their independence from the British empire. While they eliminated inherited titles and the trappings of aristocratic privilege, they failed to remove the fundamental privileges attached to landed property. The established a republic with a restricted democracy, excluding almost all persons of non-European heritage from protections under the law, and even some persons of European heritage from more than nominal protections. Numerous constitutional crises and one devastating war brought us to the late nineteenth century and the introduction of changes to the structure and operation of government under the banner of liberalism. Liberalism is not a philosophy but a set of public policies advanced or thwarted by the efforts of those who are committed to very confused and contradictory agendas. The result is a century of change in law and public policy by a process of disjointed incrementalism that rarely asks: "Is this idea consistent with moral principles?"

There was never a very broad acceptance of moral principles as espoused by John Locke back in the 17th century. And, from that low level of acceptance there has been continued erosion. Instead, there is a majority acceptance of form over substance and a minority rejection of even form. There is widespread theft by many persons at some level - from taking office supplies for personal use, to shoplifting items from stores, to falsifying income on tax returns, to fraudulent chargings for services not performed or goods never delivered, to identify theft, to highjackings of truckloads of goods transported on the highways. The list is endless. The disrespect for law deeply entrenched and widespread. To some extent this behavior can be traced to the arbitrariness of laws and their enforcement and the failure over many generations to consistently challenge conventional wisdoms (i.e., cultural relativism) in a search for objective, universal moral principles.

As many will recall, the first real organized effort at social engineering was fought against the use (not merely abuse) of beverages with alcoholic content. Alcohol consumed above certain levels dulls the senses, causes aberrant often violent behavior, is often addictive and leads to life-threatening diseases. In the process, addicts frequently neglect their obligations to spouse or partner, to children, to parents, to employer and to community. In one sense, the individual is a victim of a potentially (or inherently, depending upon which scientific research you accept) harmful product against which there were no regulations or restrictions. In another sense, the individual is a victim of his or her own weakness, engaging in behavior known to be dangerous and with the potential to result in temporary or permanent incompetency. Our moral obligations to one another as members of a society coming together in voluntary association are not - to use the term of the founding fathers - self-evident.

We are individuals but our actions have consequences. Others are almost always affected by what we do or do not do. Freedom and liberty are not the same things; liberty is the exercise of freedoms within the constraints of justice. And, justice demands that our behavior does not infringe on the liberty of another. Drawing lines in the sand is the tough part where the preservation of justice is the highest priority. Billions of people consume tobacco products, alcoholic beverages, marijuana and even some more seriously addictive drugs and still manage to live up to at least a minimum standard for meetings their obligations to others. That has essentially always been the case.

In the early 20th century, those who believed that the societal norm in the United States ought to be "zero tolerance" managed to get the Congress of the United States to pass an amendment to the Constitution prohibiting the manufacture, sale or use of any form of alcoholic beverage. The penalty for non-compliance was imprisonment. In economic terms, the supply-side of the equation was immediately contracted, while the demand side was left only marginally reduced. Expectations of enormous profits lured individuals who had no respect to law and no compunction against the use of violence in the quest for personal wealth into the criminal activity of providing supply to the market. Finally, after years of violent confrontations between criminal gangs, deep corruption of the criminal justice system and the establishment of organized crime on a level that might never have developed without prohibition, the amendment was repealed.

Alcohol and tobacco became the drugs of choice for an increasing percentage of people over the next several generations. In both cases, the consequences of use and abuse took years to develop, taking years or decades off of the user's life span - with the last several years at minimum absorbed (if one had insurance coverage) by surgical procedures, hospital stays and long periods of incapacitation. Gradually, societal toleration for these substances has found a different form of expression - ostracism. People who continue to choose to smoke tobacco products are prohibited from doing so anywhere others might be adversely affected. For those who enjoy the taste of wine or beer but who are no longer willing to accept the risk of drunkenness or disease, producers offer alcohol-free alternatives. Peer pressure exists in various ways to encourage or discourage consumption. The younger that people begin to use such substances regularly, the more likely it is they will continue to do so, become victims of their harmful effects and impact the lives of others. The societal response has been on the whole appropriate - consume alcoholic beverages to the point your ability to drive an automobile is impaired, get behind the wheel and then crash into someone who is injured or killed, and you are by law guilty of murder. Did you intend to kill someone? Of course not. Did you engage in behavior known to be dangerous to others? Yes. You are responsible for the consequences of your actions. A similar analogy might result in a jury awarding damages under civil law to the victim of second-hand smoke. Who might be the defendant? An employer who failed to prohibit the use of tobacco products in a confined area once the science proved that smoke inhaled from the air is a cause of lung cancer. Another form of market response to the use of dangerous substances is to refuse to insure persons who engage in such behavior, or charge them premiums that truly reflect the probability of illness and the costs associated therewith.

Until the middle of the 1960's, the consumption of addictive substances other than alcohol and tobacco was confined to a relatively small number of people. The youth of the 1960s then became in just a few short years a new mass market for every sort of substance that might be consumed without immediately causing death - if there was some prospect of a mind-enhancing or mind-numbing experience. A generation of young people trained in chemistry put their education to work on new chemical compounds that could be produced in easily-consumed pill form. Marijuana was discovered as an easy-to-cultivate and relatively inexpensive substance that brought on an almost immediate "high" to users without alcohol's tendency to excite violent behavior and without headaches or hangovers. At the beginning the societal response was denial. What is not well-understood is the cross-cultural influence of the war in Southeast Asia. A large number of men returning from Vietnam came back thoroughly addicted to drugs in wide use in Southeast Asia. They introduced many others to opium and heroine and cocaine. Unregulated drug production and sale was becoming big business, which attracted the surviving organized crime families and many new entrants from all around the globe.

With so much profit to be had and the demand side increasing exponentially, the new dynamic entering the market has been the scale of violence. Drug production and distribution is protected by and accompanied by a resort to murder that the criminal justice system in the United States is unable to respond to. Young people from all ethnic and economic groups continue to be recruited into the drug world every day. The risks of addiction or violent death are simply accepted as risks one has to take in order to make fast money. And what has been the societal response? To expand the police powers of the State at the expense of individual liberty, to tax some citizens ever more heavily to pursue, arrest and incarcerate people who produce and/or distribute illegal substances - all with no prospect of eliminating the potency organized crime or addressing the demand side of the equation.

What ought to be done? In my opinion, we must accept the fact that some people will at some times in their lives behave irrationally. Even with the best educational programs offered to the very young and continued until early adulthood, some people will continue to want to experience the "high" offered by existing and newly-created substances. Education is the beginning. Well-funded and broadly available treatment programs are essential. Most controversial is to legalize the production of drugs under standards similar to those established by the Food & Drug Administration for other types of drugs.

The immediate benefit, of course, is that the number of criminal cases going thru the state and federal courts would drop by around 70 percent. Persons convicted of production, sale or possession of drugs but not of weapons violations or violent crimes could be released from prison "without prejudice" and assisted toward reintegration into society as productive citizens. Product development research would certainly result in the introduction of milder, less addictive forms of drugs that met the wants of casual and social users. Criminal organizations would be denied the profits from the drug market and begin to have a diminished influence.

There may come a time in the future, when our socio-political arrangements and institutions are all consistent with moral principles and just law. When there is equality of opportunity for all persons and privilege is a thing of the past, the excitement of learning and of achieving and of reaching one's potential will certainly replace the use of the substances we now fear are destroying the social fabric. Until then, we need to face reality. What we have been doing for the last quarter century or so, as far as I can see, has done little more than to further impoverish the poor, punish victims and expand the reach of organized crime across borders and in societies where weapons are freely available and government corruption is rampant. If our elected leaders had met with the objective of constructing a plan for the disintegration of our society, they could not have been more successful than the measures disjointed incrementalism has produced.