“Prohibition Theater” and “The Iron Law of Prohibition”

By Jeffrey A. Singer of Cato.

"A May 18 opinion column in the Wall Street Journal by Joseph Grogan and Casey B. Mulligan titled “Fentanyl Overdose Rates Are Rising Fast” argued that to better address the overdose crisis, the Biden administration should tighten border security, give law enforcement better tools to combat the drug trade, toughen sentencing, and add illicit fentanyl and its analogs (easily created in clandestine labs) to the Drug Enforcement Administration’s Schedule 1 (“no currently accepted medical use and a high potential for abuse”), joining cannabis, LSD, heroin, MDMA (“ecstasy”) and other drugs widely attainable in the black market. I call this last proposal “prohibition theater.”

From the article:

Because fentanyl is so lethal, the Trump administration’s Drug Enforcement Agency temporarily placed all of its analogs—such as carfentanyl, acetylfentanyl, butyrfentanyl, and others yet to be invented—into Schedule I of the Controlled Substances Act. This prevented drug cartels, which are incredibly entrepreneurial, from tweaking the chemical composition of the drugs to get around prosecution. Congress is working to update the Controlled Substances Act so that the scheduling can become permanent. But under pressure from nearly 100 civil‐​rights groups again asserting that using law enforcement to stop fentanyl is racist, the Biden administration is frustrating the Congressional effort by insisting on weak fentanyl sentencing.

Mulligan and Grogan are distinguished economics and public policy experts. Mulligan is a professor of economics at the University of Chicago and Grogan served as the director of the U.S. Domestic Policy Council in the Trump administration. Scholars of their caliber should easily recognize the futility of drug prohibition and anticipate its harmful unintended consequences.

Thus, I was shocked and disappointed when I read their comments and recommendations. We can’t keep illicit drugs out of prisons, but tightening border security will somehow work? Adding the drugs to Schedule 1—which already lists several drugs readily available in the lucrative black market—and toughening sentencing will frighten drug traffickers away? They can’t be serious.

But I was most disappointed that they seemed unaware of the “Iron Law of Prohibition:” as law enforcement becomes more intense the potency of the prohibited substance increases. The more potent a drug is, the more bang for the buck, the smaller the volume it takes up for a given high, and thus the easier it is to hide from law enforcement. Put simply: the harder the law, the harder the drug.

This moved me to write the following letter to the editor of the Wall Street Journal:

Dear Editor—

You can imagine how disappointed I was to read such distinguished economics and public policy experts as Joseph Grogan and Casey B. Mulligan making the, by now, bankrupt argument that doubling down on enforcing drug prohibition will somehow lead to a better result than it has over the past half century since President Nixon declared a “war on drugs” (“Fentanyl Overdose Rates Are Rising Fast,” May 18, 2022). One would expect Grogan and Mulligan to be familiar with what has come to be known as the “Iron Law of Prohibition:” as law enforcement becomes more intense, the potency of prohibited substances increases–an extension of the Alchian‐​Allen Effect, first described in 1964. Stated more succinctly, “the harder the enforcement, the harder the drug.”

Beer and wine were not smuggled during alcohol prohibition–the hard stuff was (as is done today when “tailgaters” bring prohibited alcohol into football stadiums).

This explains why marijuana prohibition fostered the development of more potent forms of cannabis, why cocaine prohibition helped create crack cocaine, and why the 2005 Combat Methamphetamine Epidemic Act catalyzed the shift from using Sudafed to using phenyl‐​2‐​propanone (P2P) to make a more a potent version of illicit meth (as anyone who has watched “Breaking Bad” would understand). Meth‐​related deaths made up 5 percent of all drug overdose deaths in 2005. In 2021 they accounted for roughly one‐​quarter of overdose deaths.

The Iron Law of Prohibition brought fentanyl into the picture. And fentanyl which, like meth, can be made in clandestine labs, became an especially attractive substitute for heroin (which must be grown and processed from the opium poppy) as pandemic‐​related supply chain problems became a part of the equation. Adding illicitly manufactured fentanyl analogues (including those not yet invented) to the list of Schedule 1 drugs, which Grogan and Mulligan endorse, is nothing more than prohibition theater.

Grogan and Mulligan should know better than to suggest that drug prohibition will finally begin to work if we only enforce it harder.

Sincerely,

Jeffrey A. Singer, MD

Senior Fellow, Cato Institute

Unfortunately, the editor chose not to publish my letter."