My third reason for disagreeing with Messrs. [Jay] Nordlinger and Will’s belief that cocaine and like substances should remain illegal is that prohibition necessarily spawns noxious policing practices – practices fundamentally corrosive of the foundations of a free society.
The peddling, purchase, and use of illegal drugs are indeed victimless crimes in the sense that – unlike, say, with burglary or rape – no party to the criminalized activities has any incentive to notify the police. Therefore, to police against the illegal drug trade requires that police officers resort to deception. The use of undercover agents, sting operations, strip searches, and racial and other forms of profiling, as well as of wiretapping and other forms of secret surveillance, are unavoidable if law enforcement is to have any hope of carrying out its charge of shrinking the trade of illegal substances. Precisely because the police do not know beforehand – that is, before they get the results of their undercover operations and secret surveillance – who is and who isn’t involved in the illegal drug trade, such policing jeopardizes the privacy and freedom of everyone. And complaints by innocent persons who discover that they’ve been secretly surveilled by the police will fall on deaf ears. As long as the police are charged with enforcing drug prohibitions, they simply cannot be held accountable if, after the fact, it’s discovered that they intruded on the privacy of innocent people.
As I wrote in 1999 after learning of law-enforcement agents’ monstrous treatment of Janneral Denson, a pregnant woman wrongly suspected of smuggling illegal drugs in her stomach and fed laxatives by government officials:
Because drug dealing involves only willing participants, drug warriors inevitably must guess whether or not an offense is occurring and who is committing it. Such guessing, of course, involves choosing targets according to their racial, sex, and age profiles. This is why [US Customs] Commissioner [Raymond] Kelly’s denial of racial profiling is unbelievable (and why Congress can end it only by ending the “drug war”). No matter how refined the technique for selecting targets, large numbers of innocent people will be detained, strip-searched, and humiliated à la Janneral Denson. After all, if Customs agents could identify drug traffickers without strip-searches, there would be no need for such searches.
(By the way, Ms. Denson never did get – as they say – full justice.)
And let’s not forget that the use of the banana-republic practice of civil asset forfeiture is commonly defended as a valuable ‘weapon’ for use in the ‘war on drugs.’
Legalizing cocaine and other hard drugs, much like the legalization of marijuana, will tempt some people into actions and life-styles that all reasonable adults understand to be unfortunate. Whether the total amount or depth of drug abuse will increase or decrease is an open, empirical question. No one can say. But we can say with great confidence, along with Georgetown University law professor Randy Barnett, that ending the war on drugs would significantly shrink the scope of law-enforcement officers’ incentives and abilities to violate the civil and property rights of Americans – even, indeed chiefly, of Americans who do not and would never use hard drugs, be these legal or illegal.