The Iron Law Of Prohibition

“Let justice roll down like waters.”

Amos 5:24

Dear Friends and Colleagues, 

The other week we set a record for this newsletter. We had more unsubscribes from our email criticizing the drug policy priorities in Biden’s State of the Union than ever before. 

That's ok, this newsletter isn’t for everyone. 

The creation of the “War on Drugs” has been a bipartisan project, and our criticism of it will span the partisan spectrum as well.

Since we lost some subscribers last week, we have a request for those of you who have stuck around: will you help us spread the word?

Maybe you know someone who would love what we are doing. Send the email along!

Or maybe you have someone you’ve been hoping to engage in these important conversations. If so, this is a great email to send along.

This week we wanted to cover a core concept in drug policy that informed the critique of Biden’s State of the Union address: the Iron Law of Prohibition.

If you’ve been doing this kind of work for a while, you probably know the concept well. If it’s new to you, it will help you understand why a continued emphasis on the “supply” side of the drug market causes overdoses. 

Today’s email is in three parts. First, the economic and historical case. Second, the application to drug markets today. Finally, a moral analysis of what this means.

The Economic Case

“The harder the enforcement, the harder the drugs.” -Richard Cowan

In 1919 the 18th Amendment was ratified. Subsequent legislation known as the Volstead Act established a wide-scale ban on the manufacture, transportation, and sale of alcohol. Thus began the period in American history commonly known as Prohibition. 

Immediately, the percentage of the population that used alcohol dropped. But Prohibition also changed the kind of alcohol that was consumed and how it was consumed. 

Beer and wine availability dried up while distilled spirits and homemade moonshine proliferated. This wasn’t a shift in demand from consumers but a function of the newly created illicit market for alcohol. 

In an illicit market, one of the greatest costs is evading detection. To improve smuggling efforts, alcohol traffickers had a strong incentive to increase the potency of their products. The higher the concentration, the easier to hide; the easier to hide, the higher the profits. 

Increased potency not only means higher profits for those doing the smuggling, but it also means higher potential harm for anyone who consumes the drug. 

First, people often consume more when given a higher-potency product. Sometimes it’s a matter of speed, you can drink liquor more quickly than a beer. Or, how alcohol is served matters. A standard serving of beer is 12 ounces while a standard serving of liquor is 1.5 ounces. Pour just 1 tablespoon more liquor than you intended and it’s the same amount of alcohol in 4 ounces of beer. 

Second, illicit and potent products tend to vary significantly in their concentration. Previously, consumers could reliably know the concentration of the product. But, in an illicit market, one bottle could be 80 proof and the next bottle 100 proof. In addition to choosing to drink more, some people might drink more without realizing it. 

Third, illicit markets don’t have much in the way of quality control. A company can be held accountable if something is wrong with their product, but a mob boss probably won’t be. Under Prohibition, there was a dramatic rise in alcohol poisoning from dangerous additives and byproducts. 

Manufacturers that distilled alcohol for industrial use were required to add poisons to their product to deter human consumption; many died anyway or tried unsuccessfully to remove the poison. Making moonshine requires separating ethanol (the kind of alcohol that gets you drunk) from methanol (the kind that makes you blind or kills you.) 

Prohibition did not eliminate the availability of alcohol, but it did ensure that the alcohol available was of higher potency and lower quality.

Iron Law of Prohibition Today

According to the CDC, there have been three distinct “waves” of the opioid crisis.

They mark the first wave as beginning in 1999 and primarily involving prescription opioids. The second wave began in 2010 with a rise in heroin deaths. The third wave began in 2013 with a rise in synthetic opioids like fentanyl.

Without explanation, a reader might be left with the impression that these shifts were natural and inevitable. Just like a mutating virus, the drug supply changes with lethal force.

But drugs aren’t a virus. They don’t evolve on their own. But they do respond to basic market forces like the Iron Law of Prohibition.

Enforcement efforts increased the cost of prescription opioids and pushed users to more potent illicit drugs, like heroin and, eventually, fentanyl.

While the percentage of the United States population using opioids non-medically has gone down over the past decade or so, the percentage of the population dying from opioid overdoses has skyrocketed.

These shifts were a predictable consequence of the Iron Law of Prohibition and the anticipated effects of drug policy that prioritizes a carceral approach to enforcement over a public health approach to treatment.

The War on Drugs is not an ineffective response to the overdose crisis, it is the reason we have the overdose crisis.

The Moral Case

“To hell with good intentions.”-Monsignor Ivan Illich

We know that early architects of the “War on Drugs” did not have good intentions. From Harry Anslinger to Richard Nixon, these men made conscious decisions to use drug criminalization as a force for social and political control. 

But, I would argue, most people today support the War on Drugs with good intentions. They believe that making drugs illegal and enforcement with harsh penalties is an effective way of protecting individuals and communities against drug-related harms.

Many people, if given the option, would be fine with giving up their “right” to use a whole host of drugs because they believe it serves the “common good.” It’s a choice I’d be willing to make, especially if the greatest beneficiaries were people who were vulnerable or otherwise marginalized. 

But this isn’t the case. 

Prohibition has not successfully reduced the availability of drugs but the Iron Law of Prohibition has created a dangerous and poisonous drug supply that now kills well over 100,000 people per year. 

Not only is the War on Drugs a massive infringement on personal liberty, it also fails to serve the common good. 

Too often, those who oppose the War on Drugs are painted as people who don’t care about or don’t understand the potential harms of drug use. For me, it is exactly because I understand and care about the potential harm that drugs can cause that I oppose the War on Drugs. 

Good intentions don’t always make good public policy. And when good intentions are used to justify repeating the same harmful practices over and over I say with Monsignor Ivan Illich, to hell with good intentions. 

Keep the Faith, 

Timothy McMahan King 

Senior Fellow

CNDP