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Legalization and Prohibition

Based on the excellent, though occasionally derailed, discussion we were having at Opposing prohibition is not designed to be a simple solution to the drug problem, it appears that it would be good to talk definitions again.

The definitions of “legalization” and “prohibition” are sometimes used as ways to create straw men arguments, by essentially claiming that your opponents are for something else entirely.

“Legalization” has been used that way a lot. Prohibitionists will use the L word as though it necessarily means that we would need to allow major corporations to place Superbowl ads touting the self-esteem benefits for pre-teens shooting up heroin, and that pre-filled needles would be sold in shrink-wrap containers in the impulse display by the cash register at 7-11.

And then, when we say that legalization can include regulation, we get comments like:

Every regulation is a prohibition of something. … Meaningful regulation is a prohibition of some kind.

If we want to get into parsing dictionary entries, fine, but it’s pretty disingenuous to claim that regulation is equal to prohibition in a discussion about drugs being legal or not (thereby if you’re opposed to prohibition, you’re also opposed to regulation). Conflating regulation and prohibition in a discussion of legalization is nothing more than a dishonest attempt to re-define the position of those opposed to prohibition.

Consider alcohol. Would you say that prohibition never ended? After all, alcohol has been heavily regulated for every moment of time since the years of what the history books call “prohibition.” Did the 21st Amendment end prohibition or not?

Tobacco is heavily regulated. Is it prohibited? No. Driving is heavily regulated. Is it prohibited? No.

Here are the definitions I often use:

Legalization: A status where responsible adults may legally acquire, possess, and use a particular drug, although there may be restrictions on time, place and manner. Legal does not mean unregulated. In fact, when it comes to drugs, most supporters of legalization call for some regulation and control.

Consider gasoline. It is an extremely dangerous substance — it can cause severe health problems or death if inhaled, can be fashioned into an explosive and can cause damaging fires. It is a legal substance (responsible adults may acquire, possess, and use it), but it is subject to control and regulation. It can only be sold by licensed dealers, and there are regulations as to how it may be used, in what kind of containers it may be stored, and so forth.

Legalization of drugs is fully compatible with regulatory efforts restricting access to children, forbidding use while driving or while working in safety-sensitive jobs, banning use in certain locations or situations, controlling the means for manufacture and distribution (including taxation and labeling), and creating standards for purity and potency.

Criminalization: A status where the manufacture, distribution, and/or possession of a particular drug is likely to result in criminal penalties if caught (ie, felony or misdemeanor charges, jail, fines, probation, criminal record), regardless of time, place, or manner.

Prohibition: Criminalization as public policy.

Decriminalization: American Heritage dictionary defines it as “to reduce or abolish criminal penalties for.” Theoretically, decriminalization could mean legalization (and is preferred by some drug policy reformers), except for the “reduce” option. Decriminalization is sometimes used to describe contradictory legal situations where marijuana, for example, is legal to possess and use, but not to acquire — this is a partial legalization that leaves intact certain aspects of prohibition’s dangerous side-effects.

The default status of any substance is legal.

Now it’s true that regulation, if used to improper extremes, can be indistinguishable from criminalization. For example, if the law said marijuana sales and possession were legal, but only on February 29, and not within a mile of any trees, sand, airplanes, or bodies of water, then it’s not regulation, it’s prohibition disguised as regulation.

When we have legalization, I believe that we’ll have to be vigilant to watch for the correct balance of regulation (tailored to individual drugs), evaluating potential harms, and the significant reduction (although probably not complete elimination) of the black market.

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16 comments to Legalization and Prohibition

  • darkcycle

    I would like to add (I know, I’ve said this before) that prohibition precludes regulation. If a substance is banned, with penalties attached to it (I’ll stay with your definition for now) it makes no sense to try to regulate it. Moreover, if you were to, say, place restrictions on the sale to certain hours, how exactly are you going to enforce that on a substance that already carries criminal penalties for it’s possession? Impossible, right?
    It’s a logic puzzle: While you can regulate something to the point it is virtually illegal, if something is illegal, it cannot be regulated. Too bad this stupid computer can’t plot this on a Venn diagram…
    Anyway, say you actually defy logic and try to regulate, say, the purity of cannabis while it’s possession still carries criminal penalties? Who’s gonna comply? How are you going to justify the added expense of drafting and trying to implement these regulations to taxpayers, while simultaneously explaining to them that it’s illegal? It boggles the mind to think regulation and prohibition could be synonymous. That’s enough from me.

  • darkcycle

    As it boggles the mind to think that regulation is a form of prohibition…I forgot to add. Sorry, I’m a little stoned.

  • LTR

    Well, at least Mark posts and tries to argue his position. That’s more than I can say for most people on this subject.

    The other post seems to have equivocation (fallacy) going on. I think Mark is more guilty of it because he bends the use of the word “regulation” into another sense which is not commonly used when speaking of legalization/prohibition, namely he eventually meshes together prohibition as a form of regulation. However, as with many English words, there are many different senses of them. Changing the sense of the word in mid-stream or within certain contexts is in fact fallacious and does little to advance an argument in a rational sense. If academics talk about prohibition as a form of regulation, that’s fine, but you aren’t in an academic publication here.

    I think it’s quite clear what people here mean when they say regulation. They mean restrictions that are placed on a product after it is a given that the product is legally available at least in some manner. The varying degrees of regulation in this context between strict and loose regulations are all under the umbrella that the product is not fully prohibited. That means that prescription pain killers are legal, but they are regulated under a specific and stricter manner than say tobacco or alcohol.

    With that said, Mark is right that no one knows exactly what will happen when we legalize marijuana, as the Dutch experiment isn’t precisely the same. We can only use these other decriminalization experiments as at least somewhat indicative that criminal penalties do not deter drug users much. Mark will say but that doesn’t prove that a legal market won’t increase use, but I would argue, and I think many others here would, that depends on how the legal market is regulated, and more importantly, it ignores the harms that come from not having some form of legalization.
    A drug like heroin need not be legalized in the same manner as cannabis. I would argue for some type of prescription program, or clinics. That is legalized heroin, but with ultra strict regulations.

    Cannabis on the other hand I think should be regulated more similarly to alcohol and tobacco. I think advertisement should be banned and the age 21, but it should otherwise be labeled for potency, purity, mold, and what have you and taxed. Given what cannabis is, I see no reason for some type of halfway measure that would be short of a licensed system of cultivation and distribution to all adults.

  • strayan

    Thing is, ‘partial prohibitions’ (regulations) are only enforcable in the absence of blanket drug prohibition. It is impossible to control the price (via taxation), the potency, the distrubtion routes, the minimum legal age limit and the packaging in an climate of drug prohibition.

    For example, no drug dealer has ever affixed a health warning to their product like the ones displayed on cigarette packets. Sure, tobacco companies throw a tanty every time a new regulation comes along, but funny how they’ve complied with every one to date (in Australia this has meant total advertising bans, point of sale display bans [you can’t display cigarettes in stores now], graphic pack warnings and [soon] plain packets).

  • darkcycle

    Ugh. The english language is a bitch, isn’t it? I’ll try again. If something is prohibited, it is banned. You cannot have it, you cannot use it, you cannot sell it. Because you cannot sell it, you cannot tax it. You cannot control it. You cannot address issues of potency of purity, because it is BANNED and you cannot have it in your posession to test. Etcetera, etcetera, etcetera. A prohibition on a substance and regulations pertaining to the sale or manufacturing of that substance are logically incompatable.

  • darkcycle

    Why are we even argueing about this? The black market is a direct result of the prohibition of a substance that still has a market, right? You attempted to ‘regulate’ that market out of existance, it still exists, in defiance of the only regulation applied to it. Hence it MUST be unregulated.

  • LTR

    I think everyone here pretty much understand you darkcycle, and nearly everyone here uses the terms as you are using them.

    The debate is really with Mark, not between us.

  • darkcycle

    I’m tired, I’m sick (Flu), and I have no idea what I’m talking about anymore. G’night all.

  • DdC

    “Any fool can make a rule,
    and Every fool will follow it.”

    — Henry David Thoreau

    “Was the government to prescribe to us our medicine and diet, our bodies would be in such keeping as our souls are now. Thus in France the emetic was once forbidden as a medicine, and the potato as an article of food. Government is just as fallible, too, when it fixes systems in physics. Galileo was sent to the Inquisition for affirming that the earth was a sphere; the government had declared it to be as flat as a trencher, and Galileo was obliged to abjure his error. … Reason and experiment have been indulged, and error has fled before them. It is error alone which needs the support of government. Truth can stand by itself.”
    — Thomas Jefferson,
    “Notes on the State of Virginia,” 1787

    “The only freedom which counts is the freedom to do what some other people think to be wrong. There is no point in demanding freedom to do that which all will applaud. All the so-called liberties or rights are things which have to be asserted against others who claim that if such things are to be allowed their own rights are infringed or their own liberties threatened. This is always true, even when we speak of the freedom to worship, of the right of free speech or association, or of public assembly. If we are to allow freedoms at all there will constantly be complaints that either the liberty itself or the way in which it is exercised is being abused, and, if it is a genuine freedom, these complaints will often be justified. There is no way of having a free society in which there is not abuse. Abuse is the very hallmark of liberty.”
    — Lord Hailsham, former Chief Justice,
    “The Dilemma of Democracy”

    “And here we come to the vital distinction between the advocacy of temperance and the advocacy of prohibition. Temperance and self-control are convertible terms. Prohibition, or that which it implies, is the direct negation of the term self-control. In order to save the small percentage of men who are too weak to resist their animal desires, it aims to put chains on every man, the weak and the strong alike. And if this is proper in one respect, why not in all respects? Yet, what would one think of a proposition to keep all men locked up because a certain number have a propensity to steal?”
    — Felix Mendelsohn, 1915

    WomansWackyVengeanceUnion

    “I am against Prohibition because it has set the cause of temperence back twenty years; because it has substituted an ineffective campaign of force for an effective campaign of education; because it has replaced comparatively uninjurious light wines and beers with the worst kind of hard liquor and bad liquor; because it has increased drinking not only among men but has extended drinking to women and even children.”
    — William Randolph Hearst,
    initially a supporter of Prohibition,
    explaining his change of mind in 1929.
    From “Drink: A Social History of America”
    by Andrew Barr (1999), p.239

    Prohibition pays, thats why its waged.
    Outlaw strawberries and you still make tons of money enforcing and incarcerations. The bonus with Ganja Hemp is keeping the major status quo competition off the shelves and mills and fields. Tax breaks for prohibitionists to trickle down jobs… to India or Prisons.

    Al Capone and Watergate were red herrings to divert the countries attention from the Fascist acts of eliminating competition. Booze/Ethanol or Ganja//Hemp

  • […] This post was mentioned on Twitter by Stephanie Powers and Chattertrap, Bertromavich Reibold. Bertromavich Reibold said: Legalization and Prohibition: Prohibitionists will use the L word as though it necessarily means that we would n… http://bit.ly/h1h8Oc […]

  • Servetus

    What is apparent in any dialogue with prohibitionists is that they’re truly incapable of regulating anything. Regulation is way too difficult for them. It requires thinking, putting two thoughts together, etc. It can never be allowed to become a topic of discussion.

    Also, regulation eliminates the sadomoralistic joy they experience whenever they get to punish someone. For prohibs, legalization is not in their vocabulary.

  • kaptinemo

    Simplified version in Special English For the Mentally Challenged (Drug prohibitionists and their enablers):

    Prohibition = Jackboot crushing neck of mostly harmless person.

    Decrim = Jackboot hovering over neck of mostly harmless person, waiting to crush it.

    Legalization = Jackboot removed from area entirely.

  • malcolm kyle

    Thanks Pete; I’ve put your clear and precise definitions, immediately, to work: http://thehive.modbee.com/node/22182

  • Pete, the fact that we are now arguing semantics seems like winning. Mark Kleiman seems like he’s been keeping up on the debate so he, as other prohibitionists, knows that he can’t win on economics. He can’t without enormous cognitive dissonance make a moral argument. so he and other defenders of the status quo have only to deny that the Dutch and Portuguese are enough like us to be used as probable outcomes and argue about semantics. that’s all they’ve got left.

  • Duncan20903

    I really wish we’d start using the word re-legalization. It’s more accurate, and it was just the day before yesterday that I read yet another member of the ignorati claim that drugs have been illegal forever with no clue that cocaine and heroin were legally sold over the counter and through the mail for decades, with absolutely none of their so called “drug related” crime present.

    …is nothing more than a dishonest attempt to re-define the position of those opposed to prohibition.

    So what else is new? That’s par for the course for the Know Nothings.

  • If you have nothing else, then let the definitions game begin.

    His definition has some partial merit, but doesn’t capture what most people believe the word to mean.

    Regulatory demands for ingredient lists and drug composition would be one such case. I bet lots of people would like to know the THC/CDB contents, whether their ketamine is stereo isomer or not, if flavorings are added to their hash, and that sort of thing. That’s only a “prohibition” in the sense that in a reciprocal way “products with no ingredient list is illegal”.

    The only meaningful way regulation of a legal market becomes prohibition is when politicians make up impossible rules and taxes – in which case the black market bounces back and does the business that the legal market will not or cannot.