Monday, August 31, 2009

Prohibition: Theory and Practice (Part I)

Prohibition: Theory and Practice,
Part I
When I first started studying American drug laws, like many other people, I looked for comparisons to the earlier alcohol prohibition. While strong differences exist – primarily in the structure and enforcement methods of the laws, these were overshadowed by the similarities between them – especially in the unintended consequences.

As my search extended, I found many other laws that followed similar patterns and resulted in similar consequences. Many of these, usually criminal laws, had religious or moral bases. These are often called “victimless crimes”. Others, often regulatory, were civil and based on economics or health. Always, though, the results of their attempted enforcement were the same.
My studies have focused on modern law – eighteenth century and later – and American and British law with some excursions into Western Europe, but I have looked at some earlier examples and some from the rest of the world. The similarities remain.

The resulting collection is amazingly eclectic. Although most of them deal with sex or intoxicants – the British Gin Acts of the 1720s are the first modern prohibition, and the American ban on abortion is one of the more recent – many try to protect local industries, to promote health, or to regulate professions. The list, taken from English and American federal law or the laws of individual American states, is long:

· British Gin Acts (1720s – 30s)
· American whiskey excise tax (1790s)
· British import tax on French watch works (early 1800s)
· State alcohol prohibitions (1840s – present)
· State anti-prostitution acts (starting 1870s)
· State anti-abortion acts (starting 1870s)
· State cigarette bans (1900 – 1920)
· Intellectual property laws (patent, copyright, trademark)(1715 – present)
· Anti-slave traffic (1809)
· Federal Alcohol prohibition (1919-1933)
· Unauthorized Practice of Medicine (1840s), but not Unauthorized Practice of Law
· Federal Drug laws[1]

And one whose nature I just recently recognized: the ban on human dissection, lasting from about the 14th Century until the middle of the 19th.

A few examples from outside the modern Western tradition will round out the picture:

· Chinese ban of opium (1830s)
· Soviet ban of Western video tapes (1970s)
· Iranian ban on cable and satellite television (1979).

These examples are enough to develop a rough definition of a prohibition law. What are the common factors?

All involve attempts to impose a legal impediment – criminal, civil, or fiscal – into a functioning market consisting of multiple, replaceable buyers and sellers negotiating for a reasonably obtainable good or service. This definition includes all the listed examples and distinguishes them from other laws, like those against murder or bank robbery, that do not include these market elements.

The market requirement is best illustrated by the distinction between the limitations on the unauthorized practices of medicine and law. Legal services are not readily obtainable: layers function only as distributors for the services of the governmentally supplied courts. Even those legal functions like will-drafting, estate planning, and corporate services ultimately rely on court enforcement. Even alternatives like arbitration or mediation depend on court enforcement for effectiveness. Without access to the courts, a lawyer has no service to offer. The government monopoly is so strong that no alternative supplier is possible.

Medicine, on the other hand, is much less dependent on hospitals. Many medical services can be offered without them. The unofficial (or, at best, semi-official) medical market teems with naturopaths, chiropractors, herbalists, midwives, curanderos, and faith-healers. Even among the recognized medical practitioners, the lines are blurred between esthetician and dermatologist, masseuse and orthopedist, and trainer and physical therapist. The market for medical services is open to many suppliers.

Availability of goods is crucial. When books were printed on paper and recordings pressed into shellac or vinyl, copyright was a practical monopoly. When digital reproduction and internet distribution became possible, a black market blossomed.

While many of these prohibitions are based on religion or morality – prostitution, abortion, drugs (including alcohol), to name a few, some are merely economic or are based in politics. Intellectual property law is economic; regulation of medicine is both economic and based in public health.

The main commonality among these prohibitions is that they are ineffective, and all are accompanied by thriving black markets. Alcohol flourished during prohibition, and drugs are readily available today. Bootleg DVDs and counterfeit Guccis are in every flea market.
They all also share disastrous collateral effects like dangerous products, violence, and corrupt law enforcement.

Later installments will examine first, the ineffectiveness, and then, individually, the collateral effects of these prohibitions.

[1] Including Smoking Opium Ban (1909), Harrison Narcotics Tax Act (1914), 2 Heroin Acts and criminalization of addiction (all 1920s), Marihuana Tax Act (1937), Boggs Act (1952), Narcotics Control Act (1957), LSD ban (1966), Controlled Substances Act (1970), and various amendments to CSA, including Amphetamine Control Act, Club Drug Anti-proliferation (cstasy), mandatory minimum sentences, crack cocaine sentencing, etc. (mainly in 1980s).

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