Lifting drug prohibition wouldn't make us all drug addicts

Lifting alcohol prohibition did not make us all alcoholics

The ideal drug policy would apply to the currently illegal intoxicants the same distinctions we routinely apply to alcohol: between children and adults, between use and abuse, between abuse that harms only the user and abuse that harms others.

Selling drugs to minors should remain illegal. But adults should be free to decide for themselves what goes into their bodies, provided they do not violate anyone else's rights in the process.

Under such a policy, some people would use currently illegal drugs to excess, just as some people use alcohol to excess. But judging from history, current patterns of alcohol consumption and data on illegal drug use, the vast majority would not.

Until 1914, opiates, cocaine and cannabis were readily and legally available in the United States over the counter and by mail order. They were incorporated into a wide variety of medicines, tonics and popular beverages. Yet even the highest estimates of addiction in the late 19th and early 20th centuries, offered by people making the case for prohibition, indicate that heavy users represented less than 1% of the population.

In the case of alcohol, moderation is the rule. About 10% of those who have consumed at least one drink in the last year qualify as "heavy users," meaning they've had five or more drinks on the same occasion on each of five or more days in the last month. The government's own survey data indicate that what's true of alcohol is also true of marijuana, cocaine, methamphetamine and even heroin: The vast majority of people who try these drugs do not become addicts. In a legal market, the rate of addiction among users would be, if anything, lower, because the people who are most prone to addiction are probably the ones who are least deterred by prohibition. And before you imagine Americans flocking to crack and heroin the moment prohibition is repealed, consider the fact that these are distinctly minority tastes even among illegal drug users, who overwhelmingly prefer marijuana.

Cully, in your first post you accused me of sidestepping "the issue of morality," so let me be explicit. Psychoactive substances are not inherently good or evil; the morality of drug use depends on how the drug is used, for what purpose and in what context. Unwinding at the end of the day or on the weekend by smoking a little marijuana, for example, is morally indistinguishable from doing the same thing with beer, wine or liquor.

Your parade of horror stories, featuring a president high on heroin during a national crisis, meth-addicted child abusers and stoned school bus drivers, obscures the crucial distinction between use and abuse. We could just as easily have a president who is drunk during a national crisis, an alcoholic who beats his kids or an inebriated bus driver. There are ways to deal with such situations that do not require general prohibition. If a drunk wrecks his personal relationships, he pays a social cost; if he screws up at work, he may lose his job; if he assaults someone or endangers others by driving while intoxicated, he can be arrested. But unless his conduct rises to the level of a crime or tort, the law leaves him alone.

The anecdote about your friend "Bob," the lawyer whose alcohol abuse jeopardized his career, family and health but who "got professional help" and is now "a world-class advocate, father and husband," supports my argument. Would Bob have been better off if he had been arrested for alcohol possession and treated like a criminal?

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In What Sense is Polygamy Currently Illegal?

News stories on the FLDS case refer to them as polygamists but the legal arguments in the case seem to be based on the age of the wives, not their number. This raises an interesting question: In what sense is polygamy itself currently illegal?

The answer, I think, is that in most of the U.S, indeed most of the developed world, it isn't, even where there are laws that say it is. For the most part, restrictions on consensual non-marital sexual relationships between adults either do not exist or are not enforced. The same is true of restrictions on out of wedlock childbirth. So if three or more people want to engage in a long term sexual relationship, they are unlikely to be prosecuted for doing so.

What is illegal is marital fraud–engaging in what claims to be a legal marriage with one person without telling her that you are legally married to another. That, as I understand it, is the real substance of polygamy laws as they are currently enforced. In addition, of course, while a relationship involving more than two people may not be illegal, it also isn't legally marriage. That can matter in contexts such as inheritance, disputes over parental rights, and the like–the sort of contexts where same-sex marriage is still an issue even though same-sex relationships are legal. It also matters in the context of legal restrictions on sex by age, which frequently distinguish between marital and non-marital sex.

All of which seems to imply that the FLDS could legally conduct something close to their current marital practices if they were just a little more careful to conform to the letter, if not the spirit, of the relevant laws. To start with, they would want to locate in a state where the age of consent for marital sex is low--13 or 14--and not marry any girls younger than that age. They would have to refrain from having more than one wife younger than the age of consent for non-marital sex. A man who wanted to marry a second wife below that age would have to first legally divorce his first wife–but as long as she was at that point old enough to consent to non-marital sex he could continue living with her.

So far as I can tell, this would work, legally speaking. The remaining danger, assuming it were done openly, would come from non-legal objections to the practice which might take legal form. Texas raised its age of consent for marital sex from 14 to 16 only a few years ago. For all I know, that may have been a deliberate attempt to either get the FLDS in trouble or drive them out. And even with no legal changes, the law can be used selectively, as I think is happening in the present case, against a sufficiently unpopular minority.

It long ago occurred to me that there would be a simple way to maintain a low profile polygamous relationship in modern day America. Marry wife A, have a child by her. Divorce wife A, marry wife B, continue to live in the same neighborhood as wife A. If wife A is observed to be frequently in the house of husband and wife B–she would presumably want to maintain a legal residence somewhere else–that is easily explained by the desire of both parents to spend time with their child.

Does anyone know of counterexamples to my legal claim? Have there been people prosecuted for polygamy in recent years as a result of living and having sex with two or more people, where all of them were consenting adults?

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(And don't forget your ration of Wicked Thoughts for today)