Against the State: An Anarcho-Capitalist Manifesto

2

THE WAR ON DRUGS

THE AMERICAN GOVERNMENT, THUS, has continually violated the laws of war. The aggressive wars that the American state has waged, though, have not been confined to wars against other states. As we’ll see again and again in this book, the American state wages war against our own people, the people it is supposed to protect and defend. In this chapter, we will see one way that it does this. A draconian policy of drug regulation needlessly puts thousands of people in jail and discriminates against blacks, for a completely illegitimate purpose. Drugs, it is claimed harm those who take them. Even if this claim is true, why should you be put in jail for harming yourself? It makes no sense. Douglas Husak, a legal philosopher who teaches at Rutgers, asks,

Does anyone believe that individuals should be punished for something simply because the failure to do so would cause an increase in the behavior for which they are punished? This rationale fails to provide the personal justification for punishment that is needed. This is not our reason to criminalize acts like murder and rape. No one would say that we should punish such acts simply because the failure to do so might lead others to commit rape and murder.

To punish people simply because their acts encourage others to act in a way deemed undesirable is to use people as a mere means to an end, in a morally unacceptable way. If the state can imprison someone because his drug use sets a bad example to children, or helps to maintain a market in drugs associated with violent crime, isn’t the state failing to treat the drug user as a human being worthy of respect?

Why should people be prevented from selling consumers what they want to buy? Those who run afoul of the law by peddling drugs often get unbelievably harsh prison sentences — for something that in a free society shouldn’t be a crime at all. As if this were not bad enough, making drugs illegal promotes real crimes and violence.

There is one simple argument that shows immediately that the underlying basis of the war on drugs collapses. Almost everybody today realizes that Prohibition was a failure: the attempt to regulate alcohol consumption didn’t work and brought crime and civil liberties violations in its wake. People now realize that the harms that result from alcohol abuse don’t justify the restrictions on liberty that the prohibitionists imposed. The evidence that abuse of alcohol blights certain lives is far stronger than conjectures that some have about the abuse of heroin by poor and untalented teenagers. But if most people reject the Prohibition Amendment as an undue restriction on personal freedom, shouldn’t they reject the war on drugs as well? As Laurence Vance points out,

Alcohol abuse and heavy tobacco use are two of the leading causes of death in the United States. It seems rather ludicrous to advocate the outlawing of drugs and not the outlawing of alcohol and tobacco.

The drug laws have had life-shattering consequences for many people. Again Laurence Vance states the essential facts in clear and cogent fashion:

The United States leads the world in the incarceration rate and in the total prison population. ... Almost twenty percent of the state prison population are incarcerated because of drug charges. Almost half of the federal prison population are incarcerated because of drug charges. There are almost 350,000 Americans in state or federal prison at this moment [November 2011] because of drug charges.

You might think, “This may be bad, but it doesn’t really affect me — I don’t use drugs.” But matters are not so simple.

The war on drugs has destroyed financial privacy. Deposit more than $10,000 in a bank account and you are a suspected drug trafficker. ... The war on drugs has provided the rationale for militarizing local police departments. ... The war on drugs has resulted in outrageous behavior by police in their quest to arrest drug dealers. ... The war on drugs has eviscerated the Fourth Amendment’s prohibition against unreasonable searches and seizures.

Further, once the government gets its foot in the door in regulating your personal behavior, there is no logical stopping point. If the government can control what goes into your body why can’t it control what goes into your mind as well? As Ludwig von Mises pointed out,

Opium and morphine are certainly dangerous, habit-forming drugs. But once the principle is admitted that it is the duty of the government to protect the individual against his own foolishness, no serious objections can be advanced against further encroachments. ... And why limit the government’s benevolent providence to the protection of the individual’s body only? Is not the harm a man can inflict on his mind and soul even more disastrous than any bodily evils? Why not prevent him from reading bad books and seeing bad plays, from looking at bad paintings and statues and from hearing bad music?

The Drug War violates everybody’s liberty, but it hurts one minority group particularly hard: American blacks. Wilt Alston gives us the grim facts:

How can one say the drug war is racist? Let us start with some pretty basic numbers: Black people — men, women, and children — compose approximately 12.6 percent of the population of the United States. Black people — primarily black men — compose approximately 35.4% of the prison population. Anyone not living under a large stone or just arriving to Earth from another galaxy already knows America has a very healthy prison population ... the bottom line is this. The U.S. incarceration rate is over 700 people per 100,000 of population. The next highest rate is either in New Zealand at approximately 168 per 100,000 or Spain at approximately 164 per 100,000, dependent upon who is counting and which chart one examines.

So putting folks in jail is a hobby for the American State. Putting black folks in prison, well, that’s just a bonus! “Amerika” has more people in prison than any other nation on Earth, and the percentage of those people who are black and male is roughly three times the percentage of black people in the general population. Why? ... [One suggestion] is because black people commit more drug crimes, and, therefore, get arrested more, convicted more, and incarcerated more. Each of these statements is so ignorant as to be comical, but more importantly, each of them is so cataclysmically incorrect as to be criminal, pardon the pun.

First of all, with the possible exception of crack cocaine, black people do not abuse drugs at a higher level than white people; that is, the absolute number of drug users who are black is lower. Ergo, the assertion is incorrect on its face, as evidenced by a study published in The Stanford Law and Policy Review.

Here’s the thing, though. It is possible (nay, even likely) that black men do get arrested more, convicted more, and incarcerated more. That does not mean that they, in fact, commit more drug-related crime. The available data illustrate rather starkly that for illicit drug use, black people are not leading the parade. (Let us, for the time being, put aside the issue of whether or not any person putting a substance into his own body can ever truly be criminal for the moment, since the overwhelming majority of Americans may actually believe that the State establishes what is criminal versus discovers it.)

Secondly, the mathematics of drug distribution and drug production preclude the possibility that a group so small as black males could possibly be responsible at a level to justify their incarceration rate. In other words, drugs like crack and weed are produced in large quantities, but could be manufactured and packaged pretty much anywhere, assuming the raw materials are present. However, the sheer amount that is being produced and distributed suggests a larger operation than could be supported by just black folks. For more “sophisticated” drugs like heroin and cocaine, it seems that the production is almost exclusively off-shore. The finished product is then shipped into the States. Do you reckon there are lots of boats and planes berthed in the Inner City, where the predominant arrests of black males are made? Of course not. Yet, drug warriors continue to target and arrest black men, and ignorant people continue to deny that there is a racial component afoot. Notes [Charles] Blow:

… no group has been more targeted and suffered more damage than the black community. As the A.C.L.U. pointed out. ... “The racial disparities [in drug arrests and prosecution] are staggering: despite the fact that whites engage in drug offenses at a higher rate than African-Americans, African-Americans are incarcerated at a rate that is ten times greater than that of whites.”

Black people, comprising 12.6 percent of the U.S. population — are incarcerated for drug offences at a rate 10 times higher than that of whites — resulting in 35.4 percent of the overall prison population. If that doesn’t sound like an old-school racist’s wet dream, I don’t know what does. (Sure, all the black folks in prison aren’t there for drug offenses, but the overwhelming majority of people in prison are there for non-violent drug offenses.)

There’s a closely related area to the war on drugs in which the State has assaulted our rights — laws that forbid drunk driving. Now the feds declare that a blood-alcohol level of 0.08 percent and above is criminal and must be severely punished. The National Restaurant Association is exactly right that this is absurdly low. The overwhelming majority of accidents related to drunk driving involve repeat offenders with blood-alcohol levels twice that high. If a standard of 0.1 doesn’t deter them, then a lower one won’t either.

But there’s a more fundamental point. What precisely is being criminalized? Not bad driving. Not destruction of property. Not the taking of human life or reckless endangerment. The crime is having the wrong substance in your blood. Yet it is possible, in fact, to have this substance in your blood, even while driving, and not commit anything like what has been traditionally called a crime.

What have we done by permitting government to criminalize the content of our blood instead of actions themselves? We have given it power to make the application of the law arbitrary, capricious, and contingent on the judgment of cops and cop technicians. Indeed, without the government’s “Breathalyzer,” there is no way to tell for sure if we are breaking the law.

Sure, we can do informal calculations in our head, based on our weight and the amount of alcohol we have had over some period of time. But at best these will be estimates. We have to wait for the government to administer a test to tell us whether or not we are criminals. That’s not the way law is supposed to work. Indeed, this is a form of tyranny.

Now, the immediate response goes this way: drunk driving has to be illegal because the probability of causing an accident rises dramatically when you drink. The answer is just as simple: government in a free society should not deal in probabilities. The law should deal in actions and actions alone, and only insofar as they damage person or property. Probabilities are something for insurance companies to assess on a competitive and voluntary basis.

This is why the campaign against “racial profiling” has intuitive plausibility to many people: surely a person shouldn’t be hounded solely because some demographic groups have higher crime rates than others. Government should be preventing and punishing crimes themselves, not probabilities and propensities. Neither, then, should we have driver profiling, which assumes that just because a person has quaffed a few he is automatically a danger.

In fact, driver profiling is worse than racial profiling, because the latter only implies that the police are more watchful, not that they criminalize race itself. Despite the propaganda, what’s being criminalized in the case of drunk driving is not the probability that a person driving will get into an accident but the fact of the blood-alcohol content itself. A drunk driver is humiliated and destroyed even when he hasn’t done any harm.

Of course, enforcement is a serious problem. A sizeable number of people leaving a bar or a restaurant would probably qualify as DUI. But there is no way for the police to know unless they are tipped off by a swerving car or reckless driving in general. But the question becomes: why not ticket the swerving or recklessness and leave the alcohol out of it? Why indeed.

To underscore the fact that it is some level of drinking that is being criminalized, government sets up these outrageous, civil-liberties-violating barricades that stop people to check their blood — even when they have done nothing at all. This is a gross attack on liberty that implies that the government has and should have total control over us, extending even to the testing of intimate biological facts. But somehow we put up with it because we have conceded the first assumption that government ought to punish us for the content of our blood and not just our actions.

There are many factors that cause a person to drive poorly. You may have sore muscles after a weight-lifting session and have slow reactions. You could be sleepy. You could be in a bad mood, or angry after a fight with your spouse. Should the government be allowed to administer anger tests, tiredness tests, or soreness tests? That is the very next step, and don’t be surprised when Congress starts to examine this question.

Already, there’s a move on to prohibit cell phone use while driving. Such an absurdity follows from the idea that government should make judgments about what we are allegedly likely to do.

What’s more, some people drive more safely after a few drinks, precisely because they know their reaction time has been slowed and they must pay more attention to safety. We all know drunks who have an amazing ability to drive perfectly after being liquored up. They should be liberated from the force of the law, and only punished if they actually do something wrong.

We need to put a stop to this whole trend now. Drunk driving should be legalized. And please don’t write me to say: “I am offended by your insensitivity because my mother was killed by a drunk driver.” Any person responsible for killing someone else is guilty of manslaughter or murder and should be punished accordingly. But it is perverse to punish a murderer not because of his crime but because of some biological consideration, e.g., he has red hair.

Bank robbers may tend to wear masks, but the crime they commit has nothing to do with the mask. In the same way, drunk drivers cause accidents but so do sober drivers, and many drunk drivers cause no accidents at all. The law should focus on violations of person and property, not scientific oddities like blood content.

There’s still another way that the State’s involvement in drugs affects nearly everybody. The State controls what medical drugs we can use. In order for a new drug to gain government approval, it must pass stringent regulations devised by the Federal Drug Administration. These regulations have kept off the market drugs that could have saved many lives. But you can suppose a proponent of regulation says, “True enough, the FDA has delayed some valuable drugs. But it has kept dangerous drugs from harming people. When you condemn the FDA, you show only that you and that agency weigh costs and benefits differently.”

As the great historian Robert Higgs has emphasized, this reply doesn’t work. The FDA’s attempt to give us “safe” drugs has been a miserable failure. “According to one study, “fatal reactions to FDA-approved drugs amount to the fourth-leading cause of death in the United States, after heart disease, cancer, and stroke.” And to those still reluctant to abandon the comforting myth that the FDA protects us from harm, Higgs has at the ready another surprising fact: “Once a drug has been approved, doctors are not restricted to using it solely for the FDA-approved indication; they may prescribe it for other uses as well. Such uses, known as ‘off-label,’ account for some 40–50 percent of all prescriptions.” The costs of drug regulation are real, the benefits illusory.

If the State can tell us what drugs we can take, there is a logical next step. Every society must answer a fundamental question about its medical system. Does each person control his own body? If he does, he has the right to decide what type of medical treatment he wants. If people do not own their own bodies, then medical policy need not respect individual decisions, and individuals can be ruthlessly cast aside for the supposed general welfare.

There is no doubt about how the Nazis answered our question. Paul Diepgen, the leading historian of medicine in the Third Reich and also during the preceding Weimar Republic, said in a book that appeared in 1938: “National Socialism means something fundamentally new for medical life. It has overcome an idea that was central to medicine of the recent past: the idea of the right to one’s own body.” A key Nazi slogan was “The common good is higher than the individual good.”

If individuals do not make the key medical decisions, who does? Inevitably, it is those who control the state. The Nazis denied that they subordinated everything to the state; in contrast to Italian fascism, their propaganda stressed the party rather than the state. But in practice, this did not matter. To them, the welfare of the German people, the Deutsche Volk, was the supreme good; and Hitler, as the Leader of the German people, claimed the right to be the final judge of what best promoted this. In his Berlin Sportpalast speech of January 30, 1941, he declared that he had a democratic mandate and had come to power legally. His will, and the decisions of his chosen subordinates, thus determined medical policy, as it did everything else of significance.

If individuals do not own their own bodies, then people have no right to reproduce. The good of the German Volk, as determined by the ruling authorities, would govern who could have children. A law of October 1933 provided for the sterilization of persons with certain conditions, including feeblemindedness, schizophrenia, manic-depression, epilepsy, blindness, deafness, and alcoholism. Genetic courts could judge people with these conditions. These consisted of two doctors and a lawyer. Eminent scientists, including Eugen Fischer, who coined the word “genetics” in 1926, served on the tribunals. People could appeal the verdict of the genetics court, but few appeals were successful. About 4,000 people per year were sterilized, mostly for feeblemindedness; the total number of people sterilized under this law was about 400,000. Rudolf Ramm, a leading National Socialist medical expert, said that those sterilized were making a sacrifice “in the interests of the good of the Volk.”

Here I think we must avoid a mistake. It is easy to say that such a policy could only take place in a dictatorship: a Western democracy could never do such a thing. Quite the contrary, sterilization was very popular in the United States. Twenty-nine states had laws allowing compulsory sterilization, beginning with Indiana in 1907. Oliver Wendell Holmes found these laws constitutional in Buck v. Bell (1927). He declared, “three generations of imbeciles are enough.” In fact, the Nazis modeled their policy on the American laws. They were influenced by American racial theorists and eugenicists, such as Lothrop Stoddard. He later visited Germany and described the genetic courts in his book Into the Darkness. European nations such as Denmark also had sterilization laws. Once a nation abandons self-ownership, individual welfare must indeed bow to the general good. The National Socialists carried out more consistently than others an idea that was widespread.