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If Jones manufactures cigarettes which Smith buys and which give him
lung cancer, the government forces Jones to defend himself in court
against the accusation of having harmed Smith, and forces Taylor (as
taxpayer) to pay Smith's medical treatment.  So long as we use this
formula for managing risks everyone in Taylor's position has an
incentive to limit Jones's right to sell cigarettes and Smith's right
to smoke them.
Suppose, then, that selling and buying cocaine were as legal in January
1996 as in January 1896.  Jones sells cocaine, accurately labeled as to
composition, side effects, lethal close, and so forth.  Smith buys some
and dies as a result of using it.  Mrs. Smith sues Jones for causing
her husband's "wrongful death." Given our mindset, the judge refuses to
dismiss the complaint and orders the matter to go to trial; the
plaintiff's lawyers retain the most prestigious experts to testify that
the "victim" was not responsible for his behavior; the jury imposes a
judgment for ruinous compensatory and punitive damages on Jones.  In
such a legal atmosphere, only the black marketer enjoys the caveat
emptor protections of traditional contract.
Not surprisingly, bringing a free market in goods and services into
being in Russia has turned out to require more than abolishing the
Gulag.  Respect for private property and private profit, supported by a
well-functioning commercial/legal system, is needed as Well.
Mutatis mutandis, bringing a free market in drugs into being in America
would require more than repealing criminal sanctions against selling
and buying drugs.  Respect for autonomy and responsibility, supported
by a rational tort system, would be needed as well.
I fear that we shall not be able or willing to re-embrace a free market
in drugs (whose benefits we enjoyed from 1776 until 1914) until the
drug war has caused us a great deal more suffering and until we become
willing to attribute that suffering to drug laws (and their
consequences) rather than to drugs (and their abuse).
Steven B. Duke
Mr. Duke is the Law of Science and Technology Professor at Yale Law
School.  He is co-author, with Albert C. Gross, of America's Longest
War: Rethinking Our Tragic Crusade against Drugs (Tarcher Putnam, 1993).
Professor Duke pays special attention to the widespread assumption that
legalization would bring on huge addiction.  And ends by wondering why
conservative politicians, with a single exception, are apparently
indifferent to what is happening under our noses as a result of the
unwon, and unwinnable, war on drugs.
"The drug war is not working," says Bill Buckley.  That is certainly
true if we assume, as he does that the purpose of the drug war is to
induce Americans to consume only approved drugs.  But as the war wears
on, we have to wonder what its purposes really are.
If its purpose is to make criminals out of one in three African-
American males, it has succeeded.  If its purpose is to create one of
the highest crime rates in the world-and thus to provide permanent
fodder for demagogues who decry crime and promise to do something about
it-it is achieving that end.  If its purpose is de facto repeal of the
Bill of Rights, victory is well in sight.  If its purpose is to
transfer individual freedom to the central government, it is carrying
that off as well as any of our real wars did.  If its purpose is to
destroy our inner cities by making them war zones, triumph is near.
Most of the results of the drug war, of which the essayists here
complain, were widely observed during alcohol prohibition.  Everyone
should have known that the same fate would follow if the Prohibition
approach were merely transferred to different drugs.
It has been clear for over a decade that Milton Friedman's warnings
about Prohibition redux have been borne out (see his "Prohibition and
Drugs," Newsweek, May 1, 1972).  At some point, the consequences of a
social policy become so palpable that deliberate continuation of the
policy incorporates those consequences into the policy.  We are near if
not past that point with drug prohibition.
For forty years following the repeal of alcohol prohibition, we treated
drug prohibition as we did other laws against vice: we didn't take it
very seriously.  As we were extricating ourselves from the Vietnam War,
however, Richard Nixon declared "all-out global war on the drug
menace," and the militarization of the problem began.  After Ronald
Reagan redeclared that war, and George Bush did the same, we had a
drug-war budget that was 1,000 times what it was when Nixon first
discovered the new enemy.
The objectives of the drug war are obscured in order to prevent
evaluation.  A common claim, for example, is that prohibition is part
of the nation's effort to prevent serious crime.  Bill Clinton's drug
czar, Dr. Lee Brown, testified before Congress:
"Drugs - especially addictive, hard-core drug use - are behind much of
the crime we see on our streets today, both those crimes committed by
users to finance their lifestyles and those committed by traffickers
and dealers fighting . for territory and turf.... Moreover, there is a
level of fear in our communities that is, I believe, unprecedented in
our history ..."
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