Should Everything That Is Bad Be Illegal?

Should Everything That Is Bad Be Illegal? March 28, 2014/ Francis Menton


Read (or re-read) the Declaration of Independence, and you will be reminded that the big complaint of the colonists was the arbitrariness of rule by a king who could just do to you whatever he wanted. We replaced that, with remarkable success, with what we call "the rule of law." In fact, maybe the rule of law has been too successful.


Faced with a situation where the laws are viewed as basically fair and well-applied, most people show a remarkable willingness to be law-abiding. Thus arises the fallacy that the world can be perfected if only we can enact enough laws prohibiting everything bad. And in this game, "bad" quickly morphs from something that most everyone would agree is wrong, to whatever got a bare majority in Congress or a state legislature on some particular day.


It may seem like most of the victimless crimes have been around forever, but look into it and you find out that this game only really got started well into the 20th century, and it only took off during your own lifetime. Gambling, for example, was pretty much open season in the United States in the 19th century, and restrictions started proliferating in the 1920s and 30s. Drugs were almost entirely legal at the federal level before the Marijuana Tax Act of 1937 tried to make marijuana illegal by back-door means. Only when that was struck down by the Supreme Court in the Timothy Leary case in 1969 did we then get the Controlled Substances Act of 1970 and the launch of the "War on Drugs." I was in college. Also launched in the momentous year of 1970 was the war against the victimless crime that I regard as the most ridiculous and most futile of all to try to wipe out, namely "money laundering." The law that started it was the so-called Bank Secrecy Act of 1970. (A better name for it would be the Bank Non-Secrecy Act -- It requires your bank to rat you out to the government on request and not tell you that they are doing it.) And then we have the explosion of increasingly preposterous "crimes" over the past few decades: Installing a toilet of more than 1.6 gallon flush (Energy Policy and Conservation Act of 1992)! Manufacturing a 100 watt incandescent light bulb (Energy Independence and Security Act of 2007)! OK, make that a 75 watt incandescent light bulb! I could go on (and on, and on).


Read the justification for any of this stuff, and you find out that freedom just isn't considered a value of any importance by many people. And actually, it's far worse than that, because restrictions on human freedom come with untold unintended consequences as people act to evade the restrictions. Yet it is very hard to get the unintended consequences heard as part of the debate.


Nowhere is this clearer than in the drug war. Most of the debate is between drugs = bad and therefore should be illegal, versus drugs = good and therefore should be legal. There actually is some to be said on the side of drugs = good, most notably medical uses of marijuana, and remarkably that is where most of the recent ground has been gained. But I would not stand up for the drugs = good position for most people and in most circumstances.


Looking over the arguments put forth by the drugs = bad crowd, it's hard to find much if any discussion of the value of human freedom or of the unintended negative consequences of the drug war. For example, Bill O'Reilly of Fox News has become a big advocate of continued illegality of drugs including marijuana. Here is a 2013 column he wrote on he subject. Excerpt:


If you have kids, you most likely prayed hard that they would avoid drugs and alcohol. Once a child becomes intoxicated, childhood is over. The young person will never be the same again. Thus, a sane society discourages substance abuse if only to protect children. A sane society does not put a happy face on inebriation.


O'Reilly puts what he calls the "freedom issue" among the "usual excuses" put forth by the legalizers. He completely equates "discouraging substance abuse" with necessary criminalization and putting millions of people in jail. Or here is a relatively balanced discussion of the drug war from a high ranking official of the New York Police Department. But at bottom he weighs freedom at zero and thinks that drugs turn the users into crazed maniacs who go on crime sprees. Is there any actual evidence for that?


Or for that matter, is there any actual evidence that criminalization decreases the number of drug users? A big recent study from the European Union concludes "Among the strongest and most consistent findings, eliminating punishments for possession for personal use is not associated with higher drug use."


And then there is the long list of negative consequences of the war. Here is a roundup. Examples:
$51 billion annually spent on the drug war. (I have seen higher numbers elsewhere.)
1.55 million arrests in the U.S. in 2012 on nonviolent drug charges.
658,000 arrests in the U.S. in 2012 for marijuana for possession only
$46.7 billion foregone tax revenue (OK, that one is kind of made up, but doesn't seem wildly out of line to me.)
70,000 deaths in Mexico since 2006.


And they don't even mention hard-to-quantify (but also hard to deny) things like increased crime and corruption of the police. It sure seems like a lot of the murders in places like Chicago and Detroit stem from drug turf wars, a consequence of prohibition.


And don't get me started on money laundering!