Drug crises invite a temptation to identify not drugs but their prohibition as the “real” problem. This is particularly true today, during a crisis driven by an extra-potent substance (namely fentanyl) leaking into—indeed, poisoning—the illicit drug supply. But that temptation is wrong.

Consider a recent column from the Washington Post’s Megan McArdle. McArdle kindly highlighted an essay of mine on the drug crisis that explains the extent of the problem and details its origins in a revolution in illicit pharmaceutical production. But McArdle writes that my preferred solution—aggressive deterrence of drug initiation combined with comprehensive treatment provision—“doesn’t go far enough.” Rather, she thinks that my essay actually justifies an “argument for simply legalizing these drugs so that users are assured an uncontaminated supply of known and consistent potency.”

McArdle is an important voice on a variety of policy issues, and a more respectable advocate than the pro-legalization view usually commands. But her conclusion is wrong.

The basic argument goes something like this: the current crisis is a problem of adulteration of the drug supply with highly potent opioids, principally fentanyl. Consumers can’t control the potency of what they’re consuming because the illicit market is not subject to transparency requirements, either from regulators or competitive pressure. This is not usually a problem in the licit market, however. As McArdle puts it, “when my dentist prescribes Vicodin, I don’t worry about filling the prescription at Walgreens instead of CVS. I trust that our well-regulated pharmaceutical supply system will deliver the correct dosage no matter where I buy it.”

This perspective has something to it. Transparency about potency is a longstanding problem in the illicit market. Historically, the pricing mechanism for heroin worked such that, rather than prices changing, users bought at a constant price (a “dime bag” cost $10, for example), and the changing costs of inputs were accounted for by suppliers’ shifting the purity of the product. Price, the only visible measure of what you’re getting, tells you very little. The pro-legalization view contends that any additional drug use encouraged by relaxing restrictions would therefore be counterbalanced by better information—and reduced deaths.

But the current crisis is not a result of consumers having insufficient information. We know that drug users, when informed that their drugs are adulterated with fentanyl, will often continue to use. One study of young adult injection-drug users who were given fentanyl test strips found that, among those who received a positive test result, less than half used in a “slower” manner, and only about 10 percent threw away their drugs. They had the information; they still took dangerous drugs.

Would things have been different if users bought drugs fully informed, rather than finding out afterward that their goods were tainted? A RAND Corporation survey of heavy marijuana users—probably less compulsive in their use than opioid users—found that price was their overriding concern in purchasing pot, and that they “wouldn’t pay more than a few dollars per gram over the black-market price” for weed that was “legal, labeled, and tested for pesticides and other contaminants.” When your goal is to maximize consumption of an addictive substance within a fixed budget, the cheaper option will tend to beat out the safer one.

Indeed, fentanyl replaced heroin precisely because it’s cheaper to produce. There’s a reason that the drug is widely used in medical applications: making a synthetic opioid in the lab is less input-intensive than growing poppies in a field and processing them into a finished product. Illicit fentanyl retails at less than one-tenth the price of heroin, and that’s under the constraints of prohibition. Imagine how cheap Walmart could make fentanyl!

Evidence suggests that the licit market does tend to encourage consumers to use increasingly potent drugs, as it did in the first phase of the opioid crisis. As writers like Sam Quinones have documented, the early crisis was driven by a dramatic increase in the prescribing of opioids for chronic pain, which either led to addiction or diversion—that is, the drugs addicted the people to whom they were prescribed, or they were diverted by their licit recipients to the illicit market. Key to this story is Purdue Pharmaceutical’s OxyContin, an extended-release formulation of oxycodone that carries a much higher dose per pill than other drugs such as Vicodin. OxyContin was a massive success for Purdue, precisely because it was more potent, and therefore much more attractive for users; it also caused a substantial share of the early increase in deaths.

To be sure, enforcement also inflicts costs. McArdle notes a recent paper in the American Journal of Public Health, which found that drug busts are associated with an increase in drug-overdose deaths. But this is a reason to be careful in the targeting of drug enforcement, particularly in ensuring that enforcement is coupled with robust access to treatment. There exist other ways to mitigate the unintended consequences of prohibition besides ending it.

Legalization can seem like a seductive solution to the drug crisis, especially to ardent capitalists such as McArdle (and myself). But liberation from the harms of prohibition and of the illicit market does not mean liberation from harm itself. Legalization creates an opportunity for the market to prey upon addicts—with as little regard for their health as dealers tend to show, and with more ruthless efficiency than a black market can muster.

Photo: urbazon/iStock


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