Curing The Law of Drug Addiction: The Harmful Side Effects of Legal Prohibition

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DEALING WITH DRUGS
Consequences of Government Control
Edited by: Ronald Hamowy

Randy E. Barnett

INTRODUCTION

Some drugs make people feel good. That is why some people use them. Some of these drugs are alleged to have side effects so destructive that many advise against their use. The same may be said about statutes that attempt to prohibit the manufacture, sale, and use of drugs. Using statutes in this way makes some people feel good because they think they are "doing something" about what they believe to be a serious social problem. Others who support these laws are not so altruistically motivated. Employees of law enforcement bureaus and academics who receive government grants to study drug use, for example, may gain financially from drug prohibition. But as with using drugs, using drug laws can have moral and practical side-effects so destructive that they argue against ever using legal institutions in this manner.

              One might even say-and not altogether metaphorically-that some people become psychologically or economically addicted to drug laws.1 That is, some people continue to support these statutes despite the massive and unavoidable ill-effects that result. The psychologically addicted ignore these harms so that they can attain the "good"-their "high" they perceive that drug laws produce. Other drug-law users ignore the costs of prohibition because of their "economic dependence" on drug laws; these people profit financially from drug laws and are unwilling to undergo the economic "withdrawal" that would be caused by their repeal.

              Both kinds of drug-law addicts may "deny" their addiction by asserting that the side effects are not really so terrible or that they can be kept "under control." The economically dependent drug-law users may also deny their addiction by asserting that (1) noble motivations, rather than economic gain, lead them to support these statutes; (2) they are not unwilling to withstand the painful financial readjustment that ending prohibition would force them to undergo; and (3) they can "quit" their support any time they want to (provided, of course, that they are rationally convinced of its wrongness).

              Their denials notwithstanding, both kinds of addicts are detectable by their adamant resistance to rational persuasion. While they eagerly await and devour any new evidence of the destructiveness of drug use, they are almost completely uninterested in any practical or theoretical knowledge of the ill effects of illegalizing such conduct.

              Yet in a free society governed by democratic principles, these addicts cannot be compelled to give up their desire to control the consumption patterns of others. Nor can they be forced to support legalization in spite of their desires. In a democratic system, they may voice and vote their opinions about such matters no matter how destructive the consequences of their desires are to themselves, or more importantly-to others. Only rational persuasion may be employed to wean them from this habit. As part of this process of persuasion, drug-law addicts must be exposed to the destruction their addiction wreaks on drug users, law enforcement, and on the general public. They must be made to understand the inherent limits of using law to accomplish social objectives.

In this chapter, I will not attempt to identify and "weigh" the costs of drug use against the costs of drug laws. Instead, I will focus exclusively on identifying the harmful side-effects of drug law enforcement and showing why these effects are unavoidable. Such a "one-sided" treatment is justified for three reasons. First, a costbenefit or cost-cost analysis may simply be impossible. 2 Second, discussions by persons who support illegalizing drugs usually emphasize only the harmful effects of drug use while largely ignoring the serious costs of such policies. By exclusively relating the other side of the story, this chapter is intended to inject some balance into the normal debate. Third, the effects of drug use will be discussed by other contributors to this volume.

              The harmful side-effects of drug laws have been noted by a number of commentators,3 although among the general public the facts are not as well known as they should be. More important, even people who agree about the facts fail to grasp that it is the nature of the means-coercion-chosen to pursue certain ends-the suppression of voluntary consumptive activity-that makes these effects unavoidable. This vital and overlooked connection is the main subject of this chapter.

Clarifying Our Terms

Before we can discuss the destructive effects of drug laws, it is necessary to clarify the nature of (1) the legal approach to social problem-solving and (2) the conduct that is the subject of these particular laws.

The Nature of the Legal Approach. There are two senses in which we regularly use the word law. The term law may refer simply to a command that has been enacted according to procedures recognized by a community to be legitimate.4 In contrast, the same term may also be used to describe a rule or principle that is both duly enacted and sufficiently "right" that it merits at least a prima facie moral duty 'of obedience.5 Using the term law in the second sense, it may be said that a duly enacted statute or "law" that is unjust is not really a law at all.6

               This difficulty arises, at least in part, from our using the same word in two ways, where other societies employ two different words.7 In this discussion, when 1 use the phrase "drug laws," I am only speaking descriptively about duly enacted statutes regulating drug use. When, however, I speak of the institution of law generally, I mean those rules that are not only duly enacted, but are also in accord with principles of right or justice. I expect that the context will also help clarify this distinction.

              Drug laws reflect the decision of some persons that other persons who wish to consume certain substances should not be permitted to act on their preferences. Nor should anyone be permitted to satisfy the desires of drug consumers by making and selling the prohibited drug. For our purposes, the most important characteristic of the legal approach to drug use is that these consumptive and commercial activities are being regulated by force. 8 Drug-law users wish to decide what substances others may consume and sell, and they want their decision to be imposed on others by force.

              The forcible aspect of the legal approach to drug use is one of two factors that combine to create the serious side effects of drug-law use. The other contributing factor is the nature of the conduct that drug laws attempt to prohibit.

Clarifying the Type of Conduct Under Consideration. Only by understanding the kind of conduct that is the subject of drug laws and how it differs from other kinds of conduct regulated by law can we begin to see why the legal order is the inappropriate sphere in which to pursue our objectives.

              No one claims that the conduct sought to be prohibited is of a sort that, if properly conducted, inevitably causes death or even great bodily harm.9 Smoking tobacco is bad for your health. It may shorten your life considerably. But it does not immediately or invariably kill you. The same is true of smoking marijuana.10 Of course, prohibited drugs can be improperly administered and cause great harm indeed, but even aspirin can be harmful in certain cases. Further, the conduct that drug laws prohibit is not inevitably addicting.11 Some users become psychologically or physically dependent on prohibited substances. Others do not.12

              What then characterizes the conduct being prohibited by statutes illegalizing drugs? It is conduct where persons either introduce certain intoxicating substances into their own bodies, or manufacture or sell these substances to those who wish to use them. The prime motivation for the drug user's behavior is to alter his state of mind to get "high." 13 The harmful effects of the substances are not normally the effects being sought by the user-thus they are usually termed "side effects." People could introduce all sorts of harmful substances into their bodies, but do not generally do so unless they think that it will have a mind altering effect. Anyone who wishes to ingest substances to cause death or great bodily harm will always have a vast array of choices available to him at the corner hardware store. A widespread black market in poisons has not developed to meet any such demand.

                One can speculate about the underlying psyche of those who would engage in such risky behavior. One can argue that such persons must be "self-destructive"-that is, out to harm themselves in some way. It is doubtful, however, that such generalizations are any truer for drug users than they are for alcohol users or cigarette smokers, for whom the adverse health effects may be both more likely and more severe than those of many prohibited substances,14 or for skydivers or race car drivers-not to mention the millions of people who (for reasons that totally escape me) ardently refuse to wear their seat belts.15

                We can conclude then that the laws are the end or purpose of such laws and the means by which they attempt to fulfill this end. The end of drug laws is to discourage people from engaging in (risky) activity they wish to engage in either because they desire the intoxicating effects they associate with the consumption of a drug or because they desire the profit that can be realized by supplying intoxicating drugs to others. The means that drug laws employ to accomplish this end is to use force against those who would engage in such activities, either to prevent them from doing so or to punish those who nonetheless succeed in doing so.

THE HARMFUL EFFECTS OF DRUG LAWS ON DRUG USERS

At least part 16 of the motivation for drug prohibition is that drug use is thought to harm those who engage in this activity.17 A perceived benefit of drug prohibition is that fewer people will engage in self-harming conduct than would in the absence of prohibition.18 While this contention will not be disputed here, there is another dimension of the issue of harm to drug users that may seem obvious to most when pointed out, but nonetheless is generally ignored in policy discussions of drug prohibition. To what degree are the harms of drug use caused not by intoxicating drugs, but by the fact that such drugs are illegal?

Drug Laws Punish Users

The most obvious harm to drug users caused by drug laws is the legal and physical jeopardy in which they are placed. Imprisonment must generally be considered a harm to the person imprisoned or it would hardly be an effective deterrent.19 To deter certain conduct it is advocated that we punish-in the sense of forcibly inflict unpleasantness upon-those who engage in this conduct.20 In so doing it is hoped that people will be discouraged from engaging in the prohibited conduct.

                But what about those who are not discouraged and who engage in such conduct anyway? Does the practice of punishing these persons make life better or worse for them? The answer is clear. As harmful as using drugs may be to someone, being imprisoned makes matters much worse.

               Normally when considering matters of legality, we are not concerned about whether a law punishes a lawbreaker and makes him worse off. Indeed, normally such punishment is deliberately imposed on the lawbreaker to protect someone else whom we consider to be completely innocent-like the victim (or potential victim) of a rape, robbery, or murder.21 We are therefore quite willing to harm the lawbreaker to protect the innocent. In other words, the objects of these laws are the victims; the subjects of these laws are the criminal.

         Drug laws are different in this respect from many other criminal laws. With drug prohibition we are supposed to be concerned with the well-being of prospective drug users. So the object of drug laws-the persons whom drug laws are supposed to "protect"-are often the same persons who are the subject of drug laws. Whenever the object of a law is also its subject, however, a problem arises. The means chosen for benefiting prospective drug users seriously harms those who still use drugs and does so in ways that drugs alone cannot: by punishing drug users over and above the harmful effects of drug use. And the harm done by drug prohibition to drug users goes beyond the direct effects of punishment.

Drug Laws Raise the Price of Drugs to Users

Illegalization makes the prices of drugs rise. By increasing scarcity, the confiscation and destruction of drugs causes the price of the prohibited good to rise. And by increasing the risk to those who manufacture and sell, drug laws raise the cost of production and distribution, necessitating higher prices that reflect a "risk premium." (Price increases will not incur indefinitely, however, because at some level higher prices will induce more production.) Like the threat of punishment, higher prices may very well discourage some from using drugs who would otherwise do so. This is, in fact, the principal rationale for interdiction policies. But higher prices take their toll on those who are not deterred, and these adverse effects are rarely emphasized in discussions of drug laws.

            Higher prices require higher income by users. If users cannot earn enough by legal means to pay higher prices, then they may be induced to engage in illegal conduct-theft, burglary, robbery-that hey would not otherwise engage in 22 . The increased harm caused to he victims of these crimes will be discussed below as a cost inflicted )y drug laws on the general public. Of relevance here is the adverse affects that drug laws have on the life of drug users. By raising the costs of drugs, drug laws breed criminality. They induce some drug users who would not otherwise have contemplated criminal conduct or develop into the kind of people who are willing to commit crimes against others.

            Higher prices can also make drug use more hazardous for users. Intravenous injection, for example, is more popular in countries where the high drug prices caused by prohibition give rise to the most "efficient"-`means of ingesting the drug. In countries where opiates are legal, the princ al methods of consumption are inhaling the fumes of heated drugs or snorting 23. While physical dependence may result from either of these methods, neither is as likely as intravenous injections to result in an overdose. And consumption by injection can cause other health problems as well. For example: "Heroin use causes hepatitis only if injected, and causes collapsed veins and embolisms only if injected intravenously."24

Drug Laws Make Drug Users Buy from Criminals

Drug laws attempt to prohibit the use of substances that some people wish to consume. Thus because the legal sale of drugs is prohibited, people who still wish to use drugs are forced to do business with the kind of people who are willing to make and sell drugs in spite of the risk of punishment. Their dealings must be done away from the police. This puts users in great danger of physical harm in two ways.

             First, they are likely to be the victims of crime25. I would estimate that approximately half the murder cases I prosecuted were "drug related" in the sense that the victim was killed because it was thought he had either drugs or money from the sale of drugs. Crimes are also committed against persons who seek out criminals from whom to purchase prohibited drugs26 . These kinds of cases are brought to the attention of the authorities when the victim's body is found. A robbery of a drug user or dealer is hardly likely to be reported to the police.

              Second, users are forced to rely upon criminals to regulate the quality and strength of the drugs they buy. No matter how carefully they measure their dosages, an unexpectedly potent supply may result in an overdose. And if the drug user is suspected to be a police informant, the dosage may deliberately be made potent by the supplier.

Drug Laws Induce the Invention of New Intoxicating Drugs

              Drug laws make some comparatively benign intoxicating drugs-like opiates-artificially scarce and thereby create a powerful (black) market incentive for clandestine chemists to develop alternative "synthetic" drugs that can be made more cheaply and with less risk of detection by law enforcement. The hallucinogen, phencyclidine hydrochloride-or "PCP"-is one drug that falls into this category27. Some of these substitute drugs may turn out to be far more dangerous than the substances they replace, both to the user and to others.28.

Drug Laws Criminalize Users

Prohibition automatically makes drug users into "criminals." While this point would seem too obvious to merit discussion, the effects of criminalization can be subtle and hidden. Criminalized drug users may not be able to obtain legitimate employment. This increases still further the likelihood that the artificially high prices of illicit drugs will lead drug users to engage in criminal conduct to obtain income. It is difficult to overestimate the harm caused by forcing drug users into a life of crime. Once this threshold is crossed, there is often no return. Such a choice would not be nearly so compelling if prohibited substances were legal.

            Further, criminalization increases the hold that law enforcement agents have on drug users. This hold permits law enforcment agents to extort illegal payments from users or to coerce them into serving as informants who must necessarily engage in risky activity against others. Thus illegalization both motivates and enables the police to inflict harm on drug users in ways that would be impossible in the absence of the leverage provided by drug laws.

             In sum, drug laws harm users of drugs well beyond any harm caused by drug use itself, and this extra harm is an unavoidable consequence of using legal means to prevent people from engaging in activity they deem desirable. While law enforcement efforts typically cause harm to criminals who victimize others, such effects are far more problematic with laws whose stated goals include helping the very people that the legal means succeed in harming. Support for drug laws in the face of these harms is akin to saying that we have to punish, criminalize, poison, rob, and murder drug users to save them from the harmful consequences of using intoxicating drugs.

           To avoid these consequences, some have proposed abolishing laws against personal use of certain drugs, while continuing to ban the manufacture and sale of these substances .29 However only the first and last of the five adverse consequences of drug prohibition just discussed result directly from punishing and criminalizing users. The other three harms to the user result indirectly from punishing those who manufacture and sell drugs. Decriminalizing the use of drugs would undoubtedly be an improvement over the status quo, but the remaining restrictions on manufacturing and sale would continue to cause serious problems for drug users beyond the problems caused by drug use itself.

           As long as force is used to minimize drug use, these harms are unavoidable. They are caused by (1) the use of force (the legal means) to inflict pain on users, thereby directly harming them; and (2) the dangerous and criminalizing black market in drugs that results from efforts to stop some from making and selling a product others wish to consume. There is nothing that more enlightened law enforcement personnel or a more efficient administrative apparatus can do to prevent these effects from occurring. But, as the next section reveals, enlightened law enforcement personnel or an efficient administrative apparatus will not come from employing legal force to prevent adults from engaging in consensual activity.

THE HARMFUL EFFECTS OF DRUG LAWS ON THE GENERAL PUBLIC

The harmful side effects of drug laws are not limited to drug users. This section highlights the various harms that drug laws inflict on the general public. There is an old saying in the criminal courts that is particularly apt here: "What goes around, comes around." In an effort to inflict pain on drug users, drug laws inflict considerable costs on nonusers as well.

Resources Spent on Drug Law Enforcement

The most obvious cost of drug prohibition is the expenditure of scarce resources to enforce drug laws-resources that can thus not be used to enforce other laws or be allocated to other productive activities outside of law enforcement.

              Every dollar spent to punish a drug user or seller is a dollar that cannot be spent collecting restitution from a robber. Every hour spent investigating a drug user or seller is an hour that could have been used to find a missing child. Every trial held to prosecute a drug user or seller is court time that could be used to prosecute a rapist in a case that might otherwise have been plea bargained. These and countless other expenditures are the "opportunity costs" of drug prohibition.

Increased Crime

By artificially raising the price of illicit drugs and thereby forcing drug users to obtain large sums of money, drug laws create powerful incentives to commit property and other profitable crimes. And the interaction between drug users and criminally inclined drug sellers presents users with many opportunities to become involved in all types of illegal conduct.

             Finally, usually neglected in discussions of drugs and crime are the numerous "drug-related" robberies and murders (sometimes of innocent parties wrongly thought to have drugs) that the constant interaction between users and criminal sellers creates. Drug dealers and buyers are known to carry significant quantities of either cash or valuable substances. They must deliberately operate outside the vision of the police. They can rely only on self-help for personal protection.

             Many drug-law users speculate quite freely about the intangible "adverse effects of drug use on a society." They are strangely silent, however, about how the fabric of society is affected by the increase in both property crimes and crimes of violence caused by drug laws.

Harms Resulting from the "Victimless" Character of Drug Use

The best hidden and most overlooked harms to the general public caused by drug prohibition may also be the most significant. These are harms that result from efforts to legally prohibit activity that is "victimless." It was once commonplace to call drug consumption victimless, but not anymore. Therefore, before proceeding, it is very important to explain carefully the very limited concept of "victimless" crime that will be employed in this section.

               To appreciate the hidden costs of drug law enforcement, it is not necessary to claim that the sale and use of drugs are "victimless" in the moral sense-that is, to claim that such activity harms only consenting parties and therefore that it violates no one's rights and may not justly be prohibited 30. For this limited purpose it is not necessary to question the contentions that drug users and sellers "harm society" or that drug use violates "the rights of society."

               To understand the hidden costs of drug laws, however, it is vitally important to note that drug laws attempt to prohibit conduct that is "victimless" in a strictly nonmoral or descriptive sense, that is, there is no victim to complain to the police and to testify at trial. This will be explained at greater length in the next section, and the implications of this dimension of drug law enforcement will then be explored.

The Incentives Created by Crimes without Victims. When a person is robbed, the crime is usually reported to the police by the victim. When the robber is caught, the victim is the principal witness in any trial that might be held. As a practical matter if the crime is never reported, there will normally not be a prosecution because the police will never pursue and catch the robber. From the perspective of the legal system, it will be as though the robbery never took place. So also, if the victim refuses to cooperate with the prosecution after a suspect has been charged, the prosecution of the robber will usually not go forward 31 .

          As a theoretical matter, however, the victim of a robbery is not a party to a criminal prosecution. 32 The victim is considered to be a witness-sometimes called a "complaining witness"-to the crime; the government could prosecute the defendant without the cooperation of the victim, as it prosecutes those accused of murder. 33  What special law enforcement problems result from an attempt to prosecute crimes in the absence of a victim (or "complaining witness") who will assist law enforcement officials?

          To answer this question, let us imagine that robbery-a crime that undoubtedly has a victim34-was instead a "victimless" crime in this very limited sense, and that the police set out to catch, and prosecutors to prosecute, all robbers whose victims refused to report the crime to the police and cooperate with the prosecution. How would the police detect the fact that a crime had occurred? How would they go about identifying and proving who did it? How would the case be prosecuted?

           To detect unreported crimes, the police would have to embark on a program of systematic surveillance. Because they could not simply respond to a robbery victim's complaint as they do at present, the police would have to be watching everywhere and always. Robberies perpetrated in "public" places-on public streets or transportation, in public alleys or public parks35 -might be detected with the aid of sophisticated surveillance equipment located in these public places.

           Those robberies committed in private places-homes and stores would require even more intrusive practices.

           If the police did detect a robbery, they would be the principal witnesses against the defendant at trial. It would be their word against that of the alleged robber. As a practical matter, it would be within their discretion to go forward with the prosecution or not. There would be no victim pressing them to pursue prosecution and potentially questioning any decision they might make to drop the charges or withhold a criminal complaint.

We can easily imagine the probable results of such a policy of victimless crime enforcement. To the extent that they were doing their job and that money permitted, the police would be omnipresent. One could not do or say anything in public without the chance that police agencies would be watching and recording. The enormous interference with individual liberty that such surveillance would cause is quite obvious. And putting robbery prosecutions entirely in the hands of the police would create lucrative new opportunities for corruption in at least two ways, depending on whether or not a crime had in fact occurred.

           When a crime had occurred, if the effective decision of whether or not to prosecute is solely in the hands of the police, police officers would be far more able to overlook a criminal act than they are when a cognizable victim exists. As a result, the opportunities for extortion of bribes and the incentives for robbery suspects to offer bribes are both tremendously increased. When a crime had not occurred, the fact that the courts would be accustomed to relying solely on police testimony in such cases would give the police a greater opportunity to fabricate (or threaten to fabricate) cases to punish individuals they do not like, to coerce someone into becoming an informant, or to extort money from those they think will pay it.

           All of the increased opportunity for corruption would result directly from an attempt to prosecute robberies when robbery victims do not come forward to report and prosecute the crime themselves. If robbery were victimless in this way, the natural counterweight to these corrupt practices-the potential outrage of the victim of the robbery and the normal reliance by courts on victim testimony-would be absent. 36

           Of course we know that this is not how robbery victims normally behave. Victims do routinely report instances of robbery, creating a case that the police department must "clear" in some way. And they are usually willing to cooperate with the prosecution, giving the police far less ability to influence the success of a given prosecution.37 Where a victim exists, the problem of corruption is enormously reduced; this is true even for the crime of murder where the victim cannot be a witness.38

          Now suppose that in addition to not reporting the crime and not testifying at trial, robbery victims were willing to pay to be robbed; that they actively but secretly sought out robbers, deliberately meeting them in private places so that the crime would be perpetrated without attracting the attention of the police; that billions of dollars in cash were received by robbers in this way.

            Such a change in the behavior of robbery victims would dramatically affect law enforcement efforts. First, as will be discussed in the next section, the secrecy engendered by the consensual nature of this "victimless" transaction would make necessary far more intrusive kinds of investigative techniques than we at first supposed. Second, the victims' willingness to pay robbers to be robbed would make robbery more lucrative than it would otherwise be and would thus increase the ability of robbers to bribe the police when they are caught.

            Police who are willing to fabricate evidence against someone they knew to be a robber would expect that such a person would probably be able to afford a substantial payoff. Of course, corrupt police officers would be risking detection by honest officers and prosecutors. So we can expect that corrupt officers will attempt to minimize their risk by entering into a regular prepayment arrangement with professional robbers to ensure that they would not be arrested when they commit a robbery. Such an illicit arrangement could be enforced by the corrupt officer's credible threat to prosecute a legitimate case or, if necessary, to fabricate a case.

            The sale and use of illicit drugs are like victimless robberies, with the final twist I added. Drug users not only fail to report violations of the drug laws, they actively seek out sellers in ways that are designed to avoid police scrutiny. Drug use is a private act that, unlike most robberies, does not take place in public places. And, because drugs users desire to consume drugs, they are quite willing to pay for the product.

            Because drug use and sale are "victimless" in the special descriptive sense employed here, the hypothetical consequences of policing victimless robberies result, all too regularly and unavoidably, from drug law enforcement. The next three sections will discuss some of the more serious of these consequences.

Drug Laws and Invasion of Privacy. The fact that drug use takes place in private, and that drug users and sellers conspire to keep their activities away from the prying eyes of the police, means that surveillance must be extremely intrusive to be effective. It must involve gaining access to private areas to watch for this activity.

            One way to accomplish this is for a police officer, or more likely an informant, to pose as a buyer or seller. This means that the police must initiate the illegal activity and run the risk that the crime being prosecuted was one that would not have occurred but for the police instigation.39  And, since possession alone is also illegal, searches of persons without probable cause might also be necessary to find contraband.

Such illegal conduct by police is to be expected when one seeks to prohibit activity that is deliberately kept away from normal police scrutiny by the efforts of both parties to the transaction. This means that the police must intrude into private areas if they are to detect these acts.40 The police would be overwhelmed if they actually obtained evidence establishing probable cause for every search for illicit drugs, no matter how small the quantity. But if no constitutional grounds exist for such an intrusion, then a police department and its officers are forced to decide which is more important: the protection of constitutional rights or the failure to get results that will be prominently reported by the local media.

The Weakening of Constitutional Rights. The fact that such privacy invading conduct by police may be unconstitutional and therefore illegal does not prevent it from occurring. Some of those who are most concerned about the harm caused by drug laws are lawyers who have confronted the massive violations of constitutional rights that drug laws have engendered. Such unconstitutional behavior is particularly likely, given our bizarre approach to policing the police.41.

             At present we attempt to rectify police misconduct mainly by preventing the prosecution from using any illegally seized evidence at trial. While this would generally be enough to scuttle a drug law prosecution, it will not prevent the police from achieving at least some of their objectives. They may be more concerned with successfully making an arrest and confiscating contraband than they are with obtaining a conviction. This is especially true when they would have neither confiscation nor conviction without an unconstitutional search. 42

             In most instances, the success of a suppression motion depends on whether the police tell the truth about their constitutional mistake in their report and at trial. They may not do so if they think that their conduct is illegal. "There is substantial evidence to suggest that police often lie in order to bring their conduct within the limits of the practices sanctioned by judicial decisions."43 The only person who can usually contradict the police version of the incident is the defendant, and the credibility of defendants does not generally compare favorably with that of police officers.

            Those who have committed no crime-who possess no contraband-will have no effective recourse at all. Because no evidence was seized, there is no evidence to exclude from a trial. As a practical matter, then, the police only have to worry about unconstitutional searches if something illicit turns up; but if something turns up and they can confiscate it and make an arrest, they may be better off than if they respect constitutional rights and do nothing at all. Moreover, by encouraging such frequent constitutional violations, the enforcement of drug laws desensitizes the police to constitutional safeguards in other areas as well.

             The constitutional rights of the general public are therefore threatened in at least two ways. First, the burden placed on law enforcement officials to enforce possessory laws without victims virtually compels them to engage in wholesale violations of constitutional prohibitions against unreasonable searches and seizures.44 For every search that produces contraband there are untold scores of searches that do not. And given our present method of deterring police misconduct by excluding evidence of guilt, there is little effective recourse against the police available to those who are innocent of any crime. 45

             Second, the widespread efforts of police and prosecutors to stretch the outer boundaries of legal searches can be expected, over time, to contribute to the eventual loosening up of the rules by the courts. The more cases that police bring against obviously guilty defendants (in drug prosecutions, the evidence being suppressed strongly supports the conclusion that the defendants are guilty), the more opportunities and incentives the appellate courts will have to find a small exception there. 46 And instead of prosecuting the police for illegal conduct, the prosecutor's office becomes an insidious and publicly financed source of political and legal agitation in the defense of such illegal conduct. 47

             One point should be made clear. The police are not the heavies in this tale. They are only doing what drug-law users have asked them to do in the only way that such a task may effectively be accomplished. It is the drug-law users who must bear the responsibility for the grave social problems caused by the policies they advocate. By demanding that the police do a job that cannot be done effectively without violating constitutional rights, drug-law users ensure that more constitutional rights will be violated and that the respect of law enforcement personnel for these rights will be weakened.

The Effect of Drug Laws on Corruption. While most people have read about corrupt law-enforcement officials who are supposed to be enforcing drug laws, few people are fully aware how this corruption is caused by the type of laws being enforced. Drug laws allow police to use force to prevent voluntary activities. Unavoidably, the power to prohibit also gives the police a power to (de facto) franchise the manufacture and sale of drugs, in return for a franchise fee.

                The increased corruption caused by prohibiting consensual activity is further increased by the ease with which law enforcement officers can assist criminals when there is no complaining victim. As was seen in the discussion of "victimless robberies," without a victim to file an official complaint, it is easier for police to overlook a crime that they might see being committed. When there is no victim to contradict the police version of the event, it is much easier for police to tailor their testimony to achieve the outcome they desire whether good search/bad search or guilt/innocence. It is usually their word against the defendant's, and in such a contest the defendant usually loses. With no victim pressing for a successful prosecution, the police, prosecutor, or judge may scuttle a prosecution with little fear of public exposure.

               Owing to the victimless character of drug offenses (in the limited sense discussed above) and the fact that drug users are willing to pay for drugs, the incentives created by making drug use illegal are quite perverse when compared to a victim crime like robbery. When robbery is made illegal, robbers who take anything but cash must sell their booty at a tremendous discount. In other words, laws against robbery reduce the profit that sellers of illegally obtained goods receive and thereby discourage both robbery and the potential for corruption. 48

                Drug laws have the opposite effect. The actions of drug law enforcement create an artificial scarcity of a desired product. As a result sellers receive a higher price than they would without such laws. While it is true that drug prohibition makes it more costly to engage in the activity, this cost is partially or wholly offset by an increased return (higher prices) and by attracting individuals to the activity who are less risk-averse (criminals)-that is, individuals who are less likely to discount their realized cash receipts by their risk of being caught. 49 For such persons, the subjective costs of providing illicit drugs are actually less than they are for more honest persons.

           As I have observed elsewhere, 50 the social consequences of the wholesale corruption of our legal system by the large amounts of black-market money to be made in the drug trade have never been adequately appreciated. The extremely lucrative nature of the illicit drug trade makes the increased corruption of police, prosecutors, and judges all but inevitable. And this corruption extends far beyond the enforcement of drug laws.

         Since the prohibition of alcohol we have witnessed the creation of a multibillion dollar industry to supply various prohibited goods and services. The members of this industry are ruthless profit-maximizers whose comparative market advantage is their ability and willingness to rely on violence and corruption to maintain their market share and to enforce their agreements.

         The prohibition of alcohol and other drugs has created a criminal subculture that makes little of the distinction between crimes with victims and those without. To make matters worse, to hide the source of their income from tax and other authorities requires these criminals to become heavily involved in "legitimate" or legal businesses so that they may launder their illegally obtained income. They bring to these businesses their brutal tactics, which they employ to drive out the honest entrepreneur.

        The fact that law enforcement personnel are corrupted by drug laws should be no more surprising than the fact that many people decide to get high by ingesting certain chemicals. The tragic irony of drug laws is that by attempting to prevent the latter, they make the former far more prevalent. Drug-law users must confront the question of whether the increased systemic corruption that their favored policies unavoidably cause is too high a price to pay for whatever reduction in the numbers of drug users is achieved.

THE INJUSTICE OF DRUG LAWS

In this chapter I have described some people as being "addicted" to drug laws. Just as many people use drugs in spite of the serious harms such conduct can cause, many people advocate the use of drug laws in spite of the savage social and personal harms these laws can inflict. The argument to this point has dwelled exclusively on exposing the hidden costs of drug prohibition-costs that unavoidably result from the fact that drug use is consensual and victimless in a nonmoral or descriptive sense.

             There is, however, a more principled or philosophical lesson to be drawn from this discussion of drug laws. How is it that such policies are so popular? True, many of the costs of drug laws are very well hidden and many drug-law supporters directly gain from these policies. Yet the widespread support of such laws may be a symptom of a deeper or more fundamental malady.

              We have grown accustomed to thinking that claims of justice are subjective and personal-that such claims are largely extrinsic to "objective" public policy discussions or matters of legality. Some respond to a contention that drug laws are unjust because they violate the rights of drug users by characterizing rights claims as "merely assertions. They do not carry any argument with them. 51 To others, any claim about drug laws based on the rights of the drug user is a non sequitur, since they view rights as claims that a legal system will actually respect rather than as claims that a legal system ought to respect . 52 Finally, some would respond to a claim that the drug user's rights render drug laws unjust with the argument that "society" also has rights and that we must look beyond rights to resolve this "conflict between rights. 53

              Each of these commonplace arguments fails to fully grasp the crucial role that moral claims and general principles of justice based on individual rights should play in legal decision making. One can fully appreciate the vital role played by principles of justice only by comparing alternative ways of reaching decisions about such an important issue as which conduct should or should not be illegal. And the main alternative to resolving claims by appealing to rules based on general principles of justice is to resolve claims by determining the specific exigencies of particular policies.

              Policy makers, however, are inherently much more limited in their ability to construct good policy than is normally acknowledged. First, policy makers suffer from a pervasive ignorance of consequences.  54In advance of implementing certain kinds of social programs, it is difficult, if not impossible, to predict the precise effects they will have. The foregoing discussion of the hidden costs of drug laws illustrates that it is often very difficult even to detect and demonstrate the adverse effects of policies that have already occurred.

              Second, the judgment of policy makers and other "experts" is often influenced by self-interest (as all judgment can be). Careers are often based on an articulated commitment to certain kinds of programs, which then become difficult to reject when the consequences of the programs are not as expected. Jobs will be lost if programs are seen as counterproductive or harmful. In rendering opinions, such influences can be hard (though, of course, not impossible) to resist.

            To minimize decisions made in ignorance or out of self-interest, legal policy makers must somehow be constrained. And the most practical way to constrain them is to craft general principles and rules-laws-reflecting a conception of individual rights that rests on fundamental principles of justice. 55

            A sound legal system requires a firmer foundation for analyzing questions of legality than ad hoc arguments about the exigencies of particular policies. It requires general principles crafted to minimize-without resorting to an endless series of explicit cost-benefit analyses-the hidden costs of the sort we have identified as attaching to drug laws. It requires principles of general application that can be defended as basically just and right, despite the fact that occasions will arise when adherence to such principles appears to be causing harm that a deviation from principle would be able to rectify.

           A legal system based on such principles-if such principles can actually be identified-would not be as vulnerable to the shifting winds of opinion and prejudice as are particularistic public-policy discussions. I have discussed the vital social role and the appropriate substance of individual rights at greater length elsewhere and shall not repeat the analysis here .56 The conclusion of such an analysis when applied to drug laws is that such laws are not only harmful, they are unjust.

         Recognizing the rights of individuals to control their external possessions and their bodies-traditionally known as property rightsfree from the forcible interference of any other person is the only practical way of facilitating the pursuit of happiness for each individual who chooses to live in a social setting. If the pursuit of happiness is the Good for each person, then property rights are the prerequisites for pursuing that Good while living in close proximity to others. And the social prerequisites of the Good are the tenets of justice that all must live by. To deny these rights is to act unjustly.

           The inalienable rights of individuals to live their own lives and to control their own bodies are, according to this analysis, essential to human survival and fulfillment in a social setting.57 Drug laws undermine this control by seeking to subject the bodies of some persons to the forcible control of other persons. Such laws seek forcibly to prevent persons from using their bodies in ways that they desire and that do not interfere with the equal liberty of others.

       A proper rights analysis would render most legal cost-benefit calculations superfluous and would avoid tragically wasteful (and often irreversible) social experimentation. The two factors that were seen above to generate the hidden costs of drug laws-the end of controlling consensual conduct by forcible means-are the very factors that together identify drug laws as violations of individual rights and therefore as unjust interferences with individual liberty.

        Just as you do not need to try PCP to know it is, on balance, bad for you, a rights analysis tells us that we do not have to try using drug laws to know they are, on balance, bad for all of us. And this is one important reason why a system of rights is ultimately preferable to a system of ad hoc public-policy determinations. If a system of properly crafted individual rights had been adhered to, we would have avoided incurring these serious harms in the first place.

        In his essay Utilitarianism, John Stuart Mill provides a defense of the distinction between matters of justice or rights that are properly subject to legal enforcement and matters of morality or vice that are not:

 Justice is a name for certain classes of moral rules, which concern the essentials of human well-being more nearly, and are therefore of more absolute obligation, than any other rules for the guidance of life; and the notion which we have found to be the essence of the idea of justice, that of a right residing in the individual, implies and testifies to this more binding obligation. . . .

          The moral rules which forbid mankind to hurt one another (in which we must never forget to include wrongful interference with each other's freedom), are more vital to human well-being than any maxims, however important, which only point out the best mode of managing some department of human affairs.58

             A rights analysis that shows the fundamentally unjust and misguided nature of drug laws does not deny that persons who use drugs are capable of violating, and do in fact violate, the rights of others. Such rights-violating conduct is, however, properly illegal whether or not one is using drugs at the time. 59 Nor does it deny that drug use can adversely "affect" the lives of others. Many kinds of conduct from quitting school to having sex with strangers-can adversely affect the lives of those close to the persons who engage in such activity. 60

Legal institutions are not capable of correcting every ill in the world. On this point most would agree. Serious harm results when legal means are employed to correct harms that are not amenable to legal regulation. An individual rights analysis is a way of distinguishing harms that are properly subject to legal prohibition from those that are not.

CONCLUSION: CURING THE DRUG-LAW ADDICTION

An addiction to drug laws is caused by an inadequate understanding of individual rights and the vital role such rights play in deciding matters of legality. As a result, policies are implemented that cause serious harm to the very individuals whom these policies were devised to help and to the general public.

           If the rights of individuals to choose how to use their person and possessions are fully respected, there is no guaranty that they will exercise their rights wisely. Some may mistakenly choose the path of finding happiness in a bottle or in a vial. Others may wish to help these people by persuading them of their folly. But we must not give in to the powerful temptation to grant some the power to impose their consumptive preferences on others by force. This power-the "essence" of drug laws-is not only "addictive" once it is tasted, it carries with it one of the few guaranties in life: the guaranty of untold corruption and human misery.

FOOTNOTES

l. For those who would object to my use of the word addiction here because drug laws cause no physiological dependence, it should be pointed out that, for example, the Illinois statute specifying the criteria to be used to pass upon the legality of a drug nowhere requires that a drug be physiologically addictive. The tendency to induce physiological dependence is just one factor to be used to assess the legality of a drug. Drugs with an accepted medical use may be controlled if they have a potential for abuse, and abuse will lead to "psychological or physiological dependence" Illinois Revised Statutes, ch. 56/2, § 1205 (emphasis added). See also, id. § § 1207, 1209, 1211. Thus, applying the same standard to drug-law users as they apply to drug users permits us to characterize them as addicts if they are psychologically "dependent" on such laws.

            Personally, I would favor limiting the use of the term addiction to physiological dependence. As John Kaplan puts the matter: "While the concept of addiction is relatively specific and subject to careful definition, the concept of psychological dependence, or habituation, often merely reflects the common-sense observation that people who like a drug will continue to use it if they can-so long as they continue to like it: effects." John Kaplan, MarijuanaThe New Prohibition (New York: World, 1970), p. 160. The same might be said about those who like drug laws.

2 . I discuss some of the problems with efforts at cost-benefit calculation in Randy E. Barnett, "Public Decisions and Private Rights (Review Essay)," Criminal Justice Ethics 4 (Summer/Fall 1984): 50.

3. While there certainly is no consensus on the conclusions that ought to be drawn from the facts of this tragic story, the facts themselves are not unknown in law enforcement or in academia. See, for example, John Kaplan, The Hardest Drug: Heroin and Public Policy (Chicago: University of Chicago Press, 1983), and Arthur D. Hellman, Laws Against Marijuana: The Price We Pay (Champaign: University of Illinois Press, 1975). Nor have they escaped the attention of the popular press. See, for example, the series on "The Drug Trade" in the Wall Street Journal, 27, 29 November and 3 December 1984, p. l; and the series on "Heroin: The Unwinnable War" in the Washington Times, 24-28 September 1984, p. IA. See also, "Research Suggests That Crime Caused by Drugs Is Less Than Public Believes," Wall Street Journal, 29 November 1984, p. 20.

4. The original statement of this view was John Austin's. See John Austin, "The Province of Jurisprudence Determined," in Lectures in Jurisprudence, or the Philosophy of Positive Law (1832), vol. 1, ed. Robert Cambell (New York: James Cockcroft, 1875), pp. 3-209. The most famous modern statement of this position, which attempts to correct weaknesses in Austin's approach, is H. L. A. Hart, The Concept of Law (Oxford: Oxford University Press, 1961).

5. See, for example, Lon L. Fuller, "Positivism and Fidelity to Law-A Reply to Professor Hart," Harvard Law Review 71 (1958): 630--72; George Fletcher, "Two Modes of Legal Thought," Yale Law Journal 90 (1981): 970-1003.

6. See, for example, Thomas Aquinas, Summa Theologica, as it appears in J. Arthur and W. Shaw, eds., The Philosophy of Law (Englewood Cliffs, N.J.: Prentice-Hall, 1984), p. 10: "The force of a law depends upon the extent of its justice.... If at any time it departs from the law of nature, it is no longer a law but a perversion of law."

7. See Fletcher, "Two Modes of Legal Thought," pp. 980-84. "Because we have no clear concept of Right in English, the single word 'law' does double duty. Until the time of Blackstone and after, the 'common law' clearly had the connotation of law in the sense of Right. At least since the seventeenth century, however, positivist philosophers have sought to equate the word 'law' with enacted law (Gesetze)" (p. 982).

8. See Dale A. Nance, "Legal Theory and the Pivotal Role of the Concept of Coercion," University of Colorado Law Review 57 (Fall 1985): 1-43. While force is a neglected element of a proper moral evaluation of law, it may not be a necessary characteristic of law. Some institutions that may be characterized as genuinely legal in nature may do their work without using force. See, for example, Lon Fuller, The Morality of Law (New Haven: Yale University Press, 1965), pp. 108-10; id. The Principles of SocialOrder, ed. Kenneth 1. Winston (Durham, N.C.: Duke University Press, 1981), pp. 67-246. What is important here is that the particular kind of law advocated by drug control enthusiasts is that kind that does involve the use of force. Therefore, in this chapter I will be using the term "law" in this limited sense, and although 1 will not repeatedly qualify this use in the manner suggested by Fuller's analysis, such a limited use is intended and should be implied.

9. The State of Illinois classifies or "schedules" controlled substances according to their varying characteristics from most serious (Schedule 1) to least serious (Schedule V). That drugs can cause death or great bodily harm is not a requirement for prohibition. For drugs under schedules 11-V, potential for causing death or great bodily harm is not even a factor to be considered in determining the classification of a controlled substance. See Illinois Revved Statutes, ch. 56'/2, §§1205, 1207, 1209, 1211 (1984). Schedule 1 drugs are those drugs that have a "high potential for abuse" and have "no currently accepted medical use in treatment in the United States or (lack) accepted safety standards for use in treatment under medical supervision," Illinois Revised Statutes, ch. 56%, §§ 1203 (1984), (emphasis added). In other words, if a drug has no accepted medical use in treatment in the United States, all that is required for it to be scheduled is that it have a "high potential for abuse."

10 . In discussing the effects of marijuana, the legislative declaration of the Cannabis Control Act of the State of Illinois states only that "the current state of scientific and medical knowledge concerning the effects of cannabis makes it necessary to acknowledge the physical, psychological and sociological damage incumbent upon its use," Illinois Revised Statutes ch. 56'h, §701 (1984). But see, for example, Munir A. Khan, Assad Abbas, and Knud Jensen, "Cannabis Usage in Pakistan: A Pilot Study of Long-Term Effects on Social Status and Physical Health," in Vera Rubin, ed., Cannabis and Culture (The Hague: Morton Publishers, 1975), pp. 349-50: "The most significant point which emerged was that in a society such as Pakistan where cannabis consumption is socially accepted, habituation does not lead to any undesirable consequences.... Our study appears to show that cannabis does not produce any serious long-term effects."

11. "For most heavy users the syndrome of anxiety and restlessness seem to be comparable to that observed when a heavy tobacco smoking American attempts to quit smoking." National Commission on Marijuana and Drug Abuse, Marijuana: A Signal of Misunderstanding (Washington, D.C., 1972), p. 43. See also, the President's Commission on Law Enforcement and the Administration of Justice, The Challenge of Crime in a Free Society (Washington, D.C., 1967), p. 13 ("Physical dependence does not develop"); Khan, Abbas, and Jensen, "Cannabis Usage in Pakistan," p. 349 ("We have deliberately used the word habituation rather than addiction because we did not find either increased tolerance or withdrawal symptomatology, which are the essential prerequisites for addiction"); and Kaplan, Marijuana-The New Prohibition, pp. 157-84.

The Illinois statute prohibiting certain substances exemplifies the fact that drug laws are not aimed exclusively at addictive drugs. The criteria of Schedule I drugs, quoted in note 9 above, requires only that the substance have a high potential for abuse. The other schedules make it clear that "abuse" is not the same as potential for "psychological or physiological dependence," by consistently listing them as separate factors that must be found before a drug that does have a legitimate medical usage in the United States may be legally controlled. See Illinois Revised Statures, ch. 56'/2, § § 1203, 1205, 1207, 1209, 1211 (1984).

12. For a recent summary of the latest research on the pharmacology of opiates and their effects on the street user, see Kaplan, The Hardest Drug, pp. 3-22.

13. One objection to the definition offered in the text for the subject of drug laws is that it would apply to alcohol and caffeine consumption and for this reason must miss some special purpose of drug laws. On the contrary, the manufacture and sale of alcohol were once made illegal for similar reasons. Only the disastrous consequences that resulted from alcohol prohibition and the social acceptability of both alcohol and coffee have kept both substances legal to date. However, at least with alcohol, regulation and even prohibition is constantly being advocated by some and implemented in certain locales.

14. See John C. Ball and John C. Urbaitis, "Absence of Major Medical Complications among Chronic Opiate Addicts," in The Encyclopedia of Opiate Addiction in the United States, pp. 301-6; World Health Organization Special Committee, "Problems Related to Alcohol Consumption: The Changing Situation," Contemporary Drug Problems 9 (1981): 185. Since the much heralded appearance of the Report of the Surgeon General's Advisory Committee on Smoking and Health (1964), the adverse health effects of tobacco smoking have been much studied and are quite well known.

15 . If anything, drug consumption that causes one to get high seems a bit more rational than the unwillingness to use seat belts in that there is a tangible benefit gained in return for the risk incurred. In this respect only it is more difficult to argue against mandatory seat-belt laws than drug laws, for it is unclear what benefit the nonuser of a seat belt gains from the risk that he runs. And yet, because such laws affect nearly everyone, the liberty interest involved is easier to see and more widely trumpeted. Moreover, for those who may be sanguine about seat-belt laws, the mature of drug laws and mandatory seat-belt laws will create widespread and sery potent social side-effects of in own. See note 44.

16. The other important motivation for drug prohibition is the perceived effects of drug use on the rest of society. This will be considered below at pp. 86-97. The countervailing costs imposed on society by drug laws will also be discussed.

17. In its "Legislative declaration," the legislature of the State of Illinois expressed this typical sentiment as it end in passing the "Dangerous Drug Abuse Act" of 1965: "It is the public policy of this State that the human suffering and social and economic loss caused by addiction to controlled substances and the use of cannabis are matters of grave concern to the people of the State. It is imperative that a comprehensive program be established ... to prevent such addiction and abuse ... and to provide diagnosis, treatment, care and rehabilitation for controlled substance addicts to the end that these unfortunate individuals may be restored to good health and again become useful citizens in the community" (Illinois Revised Statutes, ch. 91 r'i, § § 120.2 [19811).

18. "It is the intent of the General Assembly, recognizing the rising incidence in the abuse of drugs and other dangerous substances and its resultant damage to the peace, health, and welfare of the citizens of Illinois, to provide a system of control over the distribution and use of controlled substances which will more effectively: ... (2) deter the unlawful and destructive abuse of controlled substances; (3) penalize most heavily the illicit traffickers and profiteers of controlled substances, who propagate and perpetuate the abuse of such substances with reckless disregard for its consumptive consequences upon every element of society" (Illinois Revised Statutes, ch. 56%2, §§ 1100 [19841).

19. Imagine if we told people that if we caught them using drugs, we would send them to the Riviera for a few years, all expenses paid.

20. "Characteristically punishment is unpleasant. It is inflicted on an offender because of an offense he has committed; it is deliberately imposed, not just the natural consequence of a person's action (like a hangover), and the unpleasantness is essential to it, not an accidental accompaniment to some other treatment (like the pain of a dentist's drill)." Stanley 1. Benn, "Punishment," in Paul Edwards, ed., The Encyclopedia of Philosophy (New York: Macmillan, 1967), vol. 7, p. 29.

21 . Punishment is also favored on the grounds that the lawbreaker deserves to be punished. See, for example, John Hospers, "The Ethics of Punishment," in Randy E. Barnett and John Hagel 111, eds., Assessing the Criminal: Restitution, Retribution, and the Legal Process (Cambridge, Mass.: Ballinger, 1977), pp. 181-209. For an opposing view, see Walter Kaufmann, "Retribution and the Ethics of Punishment," in ibid., pp. 211-30.

22. The traditional linkage between drug use and crime can be accounted for in three ways. 'he first way, just suggested in the text, is that the higher prices caused by illegality induce zany drug users to commit profitable crimes to pay for the drugs. The second way, presented Blow at pp. 85-86, is that the criminalization of drug users can force them out of legitimate rrtployment and into criminal employment. The third way, not mentioned in the text, is that )me persons who, for whatever reason, are criminally inclined are just the sort of persons ho are also inclined to use drugs. What is important is that even if the third account is true )r some (which it undoubtedly is), the first and second will be true for others; this means tat drug laws are causing a comparative increase in the number of persons who are criminally inclined-an effect of drug laws that hardly benefits those drug users so affected.

23. "Before the Harrison Act [19141, when opiates were cheap and plentiful, they were rarely injected. Moreover, injection is rare in those Asian countries where opiates are inexpensive and easily available. For instance in Hong Kong until recently, heroin, though illegal, was cheap and relatively available, and the drug was inhaled in smoke rather than injected. In the last few years, however, law enforcement has been able to exert pressure on the supply of the drug, raising its price considerably and resulting in a significant increase in the use of injections" (Kaplan, The Hardest Drug, p. 128).

24. Ibid., p. 9. In support of this, Kaplan cites Jerome H. Jaffe, "Drug Addiction and Drug Abuse," in Alfred Goodman Gilman, Louis S. Goodman, and Alfred Gilman, eds., Goodman and Gilman's The Pharmacological Basis of Therapeutics, 6th ed. (New York: Macmillan, 1980). Kaplan argues that intravenous injection can also increase dependence by producing strong conditioning effects. See Kaplan, The Hardest Drug, p. 44. In support of this he cites Travis Thompson and Roy Pickens, "Drug Enforcement and Conditioning," in Hannah Steinberg, ed., Scientific Basis of Drug Dependence (New York: Grune & Stratton, 1969), pp. 177-98. Finally, it should be noted that the spread of AIDS (Acquired Immune Deficiency Syndrome) has been caused in part by the sharing of unsterilized needles by drug users.

25. I make the same observation in Barnett, "Public Decisions and Private Rights," which was a review of John Kaplan's The Hardest Drug. In that discussion 1 mistakenly stated that Kaplan had "missed" this phenomenon in "his otherwise exhaustive treatment" (p. 53). In fact, it was 1 who missed Kaplan's discussion of this most serious problem for drug sellers and users, which appears at pp. 81-83 of his book.

26. In 1979 I obtained the confessions that were ultimately used in a prosecution involving the savage murder of three young men. See People v. Cabellero, 102 111.2d 23, 464 N.E.2d 223 (1984) (relating the factual details of the case). One of the three had approached four street-gang members to purchase marijuana. When his initial attempt to do business with the gang members was rebuffed, he mistakenly believed that this was due to a lack of trust (rather than a lack of marijuana, which was the case). To ingratiate himself with the gang members, he boasted (falsely) about his gang-affiliated friends and his gang membership. Unfortunately the persons he named were members of a rival street gang. The gang members then told him that they could supply marijuana after all and asked the three to accompany them to an alley. There they were held at gun point and eventually stabbed to death. These young men were not members of a street gang. These are drug-law-related deaths. Three young men are dead because drug laws prevented them from buying marijuana cigarettes as safely as they could buy tobacco cigarettes. Smoking either kind of cigarette may be hazardous to their health. Unfortunately that issue is now quite moot. Where and how are their deaths registered in the cost-benefit calculation of drug-law users?

27. Although originally developed by Parke-Davis, "the PCP that is now on the streets is illegally manufactured. Unfortunately, it is very easy and very inexpensive to make, and you don't even need a chemistry background." Oakley Ray, Drugs, Society, &c Human Behavior, 3d ed. (London: Mosby, 1983), p. 414.

28. Because of the "reefer madness" phenomenon that surrounds early reports by druglaw addicts of the ill-effects of drug use, such reports should be heavily discounted until time permits more objective researchers to do more extensive studies. The jury appears to still be out on PCP: "Some reports in the scientific literature associate violence with PCP use. Users, however, do not.... When violence occurred it was either against property or a panic reaction to restraint attempts.... PCP can appeal to those looking for: euphoria (low dose); a wasted, body-wide anesthetic effect with supersensitivity to sensations-the out-of-the-body stage (a moderate dose); or an incoherent, immobile, conscious state (a high dose). If you're having trouble getting a feel for PCP, you're in good company. Even users can't agree what the experience is like. One third of PCP users say it's unique, another third say it's like the hallucinogens or marijuana, and the last third isn't sure. When neither the users, the researchers, nor the clinicians can agree on the experience, the mechanisms, or the symptoms, you know that more research is needed." Ray, Drugs, Society, & Human

29 . For such a proposal concerning heroin, see for example, Kaplan, The Hardest Drug, pp. 189-235.

30. 1 will discuss later the issue of whether drug laws are just. See pp. 97-102 below.

31.To enforce his decision of noncooperation, the victim always has available the threat of unhelpful testimony at trial. "1 don't remember if that is the man who robbed me" is all the victim need say to end the case-and (notwithstanding the theoretical availability of perjury charges) prosecutors know this.

32. The parties to every criminal case are the government (variously referred to as the State, the Commonwealth, the People, or the United States of America) and the defendant(s).

33. . Of course, for this reason murder is one of the hardest of all (victim) crimes to prosecute successfully.

34.. I have chosen robbery as my example because 1 wish in this section to separate the issue of who is affected by a crime (who is and who is not a "victim" in this sense) from the issue of how certain crimes must be enforced in the absence of a cognizable victim-witness complainant. Robberies undoubtedly "affect" the persons who are robbed-and other persons as well. But notwithstanding these effects, if robberies were "victimless" in the sense used in the text-that is, if there was no victim complaining to the police and testifying at trial-certain unavoidable enforcement problems would develop.

35. Breaking and entering into a home or store when no one is present is most everywhere called a "burglary." When someone is home, the crime is sometimes called "home invasion." The most common form of robbery not committed on streets or trains, in alleys or parks is robbery of businesses.

36 As those who have prosecuted criminal cases know, some percentage of robbery victims are bought off in a similar way. When this occurs, however, it can fairly be said that therobber is, at least in part, satisfying his "debt" to the victim. See Randy E. Barnett, "Restitution: A New Paradigm of Criminal Justice," Ethics 87 (1977): 279-301 (discussing a restitutive theory of criminal justice).

37. Even with the presence of victims, police still have an ability to influence the outcome of a prosecution. They might, for example, admit to circumstances that would justify the suppression of vital evidence in a case. We thus see some corruption with almost every category of crime. The analysis in the text, however, is a comparative one. The point is that, all things being equal, far more corruption is likely to take place in the absence of a victim.

38. With the crime of murder, there may still be occurrence witnesses. If there are no witnesses to the murder, it is the discovery of the body under circumstances indicating foul play-and the normal procedures that then ensue-that gives rise to the investigation and ultimate prosecution. Murder cases, in the absence of occurrence witnesses or a confession, however, remain the toughest cases (with victims) to solve or to prosecute.

39. See, for example, Hellman, Laws Against Marijuana, pp. 60-88.

40.Ibid., pp. 103-31 ("A large proportion of ... Imarijuanal arrests result from police conduct that violates the spirit if not the letter of the Fourth Amendment's prohibition against unreasonable searches and seizures," p. 103); Kaplan, The Hardest Drug, pp. 95-97 ("Many of the techniques used to enforce heroin laws do end up violating the constitutional rights of individuals," p. 96).

41. The discussion that immediately follows in the text is only suggestive of a detailed analysis of this problem and a possible solution I have presented elsewhere. See Randy E. Barnett, "Resolving the Dilemma of the Exclusionary Rule: An Application of Restilutive Principles of Justice," Emory Law Journal 32 (1983): 937-85, especially pp. 980-85 where t specifically discuss victimless crimes.

42."A policeman who is unwilling to lie about probable cause or to conceal a prior illegal search may still be inclined to make an arrest for possession of marijuana, even if he is aware that it will not stand up under judicial scrutiny. At a minimum he will have confiscated a supply of an illegal drug. The defendant will be jailed and have to post bail, and in many cases will have to hire a lawyer; these alone serve as forms of punishment. Finally, there is always the possibility that the defendant will plead guilty to a lesser offense rather than risk a felony conviction." Comment, "Possession of Marijuana in San Mateo County: Some Social Costs of Criminalization," Stanford Law Review 22 (1969): 115.

43. Heilman, Laws Against Marijuana, p. 105.

44. I predict that the current infatuation with mandatory seat-belt laws will, in consort with drug laws, create a new and potent social side-effect: Violations of seat belt laws will supplant taillight and other traffic offenses as the most popular justification-or "probable cause"-for automobile stops that are really made to find drugs and guns. And it takes no great imagination to predict which neighborhoods will bear the brunt of this type of "law" enforcement. (Incidentally, I also predict that automobile accident injuries to those who transport illegal drugs will be greatly reduced, owing to a marked increase of seat belt usage amongst members of this group who will seek to minimize their risk of being stopped.)

45.. See Barnett, "Resolving the Dilemma of the Exclusionary Rule," p. 962. (in drug prosecutions, the evidence being suppressed strongly supports the conclusion that the defendants are guilty), the more opportunities and incentives the appellate courts will have to find a small exception here, a slight expansion there .46 And instead of prosecuting the police for their illegal conduct, the prosecutor's office becomes an insidious and publicly financed source of political and legal agitation in defense of such illegal conduct."

46. Ibid, p. 959-965.

47. As 1 have said elsewhere: "Institutionally, the arm of the government whose function is to prosecute illegal conduct is called upon, in the name of law enforcement, systematically to justify police irregularities. If these arguments are successful, the definition of illegal conduct will be altered.... Refusal to consider the long run effect of this phenomenon on the stability of constitutional protections would be dangerous and unrealistic." Ibid., p. 967. These effects are greatly heightened by the demand that prosecutors successfully prosecute drug laws.

48. Organized burglary and auto theft remain profitable (victim) crimes, in spite of the fact that they are legally prohibited, and the profits earned from these crimes are used in part to pay for the services of corrupt law-enforcement officials. Note however that-as compared with robbery-these crimes typically occur when the victim is not around, making them effectively "victimless" with respect to having occurrence witnesses available. And property insurance policies greatly cool the victim's enthusiasm to cooperate in the prosecutionanother quality of a truly victimless crime.

49. For a discussion of the "time horizons" of criminals that may affect their internal rate of discount, see Edward C. Banfield, "Present-Orientedness and Crime," in Randy E. Barnett and John Hagel Ill, eds., Assessing the Criminal. Restitution, Retribution, and the Legal Process (Cambridge, Mass.: Ballinger, 1977), pp. 133-42. See also, Gerold P. O'Driscoll, Jr., "Professor Banfield on Time Horizon: What Has He Taught Us About Crime," ibid., pp. 143-62; Mario J. Rizzo, "Time Preference, Situational Determinism, and Crime," ibid., pp. 163-77.

50. Barnett, "Public Decisions and Private Rights."

51. Kaplan, The Hardest Drug, p. 103.

52 See note 4 above. For a discussion of the reemergence of normative legal philosophy, see Randy E. Barnett, "Contract Scholarship and the Reemergence of Legal Philosophy (book review)," Harvard Law Review 97 (1984): 1223-36; Jeffrie G. Murphy and Jules L. Coleman, The Philosophy of Law: An Introduction to Jurisprudence (Totowa, N.J.: Rowman & Allanheld, 1984), pp. 7-68.

53. A legal system based on rights cannot knowingly countenance conflicting rights. A theory of rights is adopted as a means of resolving conflicting claitQs. A claim of a person who has a right prevails when it conflicts with a claim made by a person without a right. A particular system of rights that generated two conflicting but "legitimate" rights would be defective because it would not be capable of resolving the conflicting claims being made by the parties. Such a system would not, then, be truly rights-based, or a "higher" principle that is employed to resolve the dispute would dictate the true legitimate right when this kind of conflict occurs. See Hiltel Steiner, "The Structure of a Set of Compossible Rights," Journal of Philosophy 74 (1977): 767-75; Randy E. Barnett, "Pursuing Justice in a Free Society: Power v. Liberty," Criminal Justice Ethics 4 (Winter/Spring 1985): 58.

54. For an excellent summary of the literature that discusses the "knowledge problem" facing public policy analysts, see Don Lavoie, National Economic Planning: What Is Left (Cambridge, Mass.: Ballinger, 1985), pp. 51-92.

55. See Randy E. Barnett, "Foreword: Why We Need Legal Philosophy," Harvard Journal of Law and Public Policy 8 (1985): 6-16.

56 . See Barnett, "Pursuing Justice in a Free Society," pp. 56-63.

57. I discuss the distinction between alienable and inalienable rights and the inalienable right one has to one's body in Randy E. Barnett, "Contract Remedies and Inalienable Rights," Social Philosophy and Policy 4 (Autumn 1986): 179-202.

58. John Stuart Mill, "Utilitarianism" in Utilitarianism, Liberty, and Representative Government (New York: Dutton, 1951), p. 73. The position that the law should not auempt to regulate all vices is, of course, much older than Mill. See, for example, Thomas Aquinas, Summa Theologica. There he poses the question, "Whether It Belongs to Human Law to repress All Vices?" and answers in part: The same thing is not possible to a child as to a full-grown man, and for which reason the law for children is not the same as for adults, since many things are permitted to children which an adult would be punished by law or at any rate open to blame. In a like manner, many things are permitted to men not perfect in virtue, which would be intolerable in a virtuous man. Now human law is framed for the multitude of human beings, the majority of whom are not perfect in virtue. Therefore human laws do not forbid all vices, from which the virtuous abstain, but only the more grievous vices, from which it is possible for the majority to abstain; and chiefly those which are injurious to others, without the prohibition of which human society could riot be maintained. Thus human law prohibits murder, theft and the like. Ibid., p. 11 (emphasis added). The absence of tangible "injuries to others" led some modern writers to characterize laws regulating matters of vice as "victimless crimes." See, for example, Edwin M. Schur, Crimes Without Victims (Englewood Cliffs, N.J.: Prentice-Hall, 1965), pp. 120-80.

59. It is a curious, if not yet again a perverse, offshoot of attitudes toward "good" and "bad" that give rise to a criminal justice system based on punishment, that the use of mind altering substances while committing a crime can reduce the legal consequences for that act, because it either affects the ability to prove mens rea or special statutes have been created to deal with the "addict" offender. The perversity comes from punishing drug users more harshly than alcohol users-in part because of a fear that they will commit crimes-but if they do commit a crime they are not punished at all or may not be punished as severely as other persons who commit the same crime.

60. As Herbert Spencer points out: Some may argue that it is not allowable to assume any essential difference between right conduct toward others and right conduct toward self, seeing that what are generally considered private actions do eventually affect others to such a degree as to render them public actions, as witness the collateral effects of drunkenness or suicide. In [this allegation] . . . there is much truth, and it is not to be denied that under a final analysis all such distinctions as those above made must disappear. But it must be borne in mind that similar criticisms may be passed upon all classifications whatever.... [Spencer then gives several examples of scientific distinctions.] The same finite power of comprehension which compels us to deal with natural phenomena by separating them into groups and studying each group by itself may also compel us to separate those actions which place a man in direct relationship with his fellows from others which do not so place him, although it may be true that such a separation cannot be strictly maintained. Herbert Spencer, Social Statics: The Conditions Essential to Human Happiness Specified and the First of Them Developed (New York: Robert Schalkenbach Foundation, 1970), pp. 64-65 (emphasis added).