Prohibition Yesterday and Today, Same as Ever

by Bob Fiedler | Jan 20, 2022

It was 103 years ago, to the week, that the Eighteenth Amendment was ratified which made the manufacture, sale, or transportation of intoxicating liquors a criminal offense. One year later its companion statute to enact and enforce the amendment, Volstead Act, went into effect.

Ask any American why only 12 years later the Twenty-first Amendment was passed, making it the sole example in the history of our constitutional republic where an amendment was ratified for the sole purpose of un-amending the Constitution. They will all give you a fairly similar and fairly accurate litany of reasons: you can’t legislate morality, you can’t escape the natural law of supply meeting demand, what you can’t buy honestly you will procure illicitly, it didn’t greatly reduce alcohol consumption but did increase public corruption and violent crime, people were regularly poisoned by the adulterants criminals added to moonshine or by denatured alcohol, disrespect for bad laws fosters disrespect for good laws, etc.

Despite this fairly universal comprehension of the failures of prohibition (which if you stop and think about it have everything to do with human nature and market forces) you will find a sizeable minority of people across the country who will insist our current drug prohibition is somehow different despite the fact you can find superfluous examples of the very same ills that brought prohibition to an end.

For brevity’s sake I will admit to my own bias here. These sorts of utilitarian arguments are, at best, superfluous.

All it takes to understand the follies of drug prohibition is a knowledge of the principles of libertarian ethics; individual liberty, self-ownership, and the non-aggression principle.

Since actions are the result of conscious choices, individuals have ownership rights in their person and they—and they alone—have the sole liberty to decide how to use their body. Applied practically, self-ownership manifests itself in the non-aggression principle (NAP) and the free market; that no individual, or group of individuals, may forcibly restrict liberty unless they themselves violate the NAP by aggressing against others (like theft, rape, murder, fraud, pollution). The NAP is universal, treats everyone as equals before the law, and does not excuse this rule even if you call yourself the IRS, the U.S. Marines, or a corporation.

A simple application of this philosophy says that drugs should be decriminalized not due to the horrendous legacies of drug prohibition, but because you own your body and have the right to put whatever you want into it. Not that you should consume hard drugs (or smoke, consume alcohol, drink soda, and eat fatty foods), but no one may legally deny you that right. Without choice, there can be no virtue. To tell someone what they can or can’t consume is like telling them what they can or can’t read.

Unfortunately, a priori reasoning is not as persuasive to others as it necessarily is for libertarians. Fortunately both the historical truth of alcohol prohibition and the current drug war support the wisdom of the libertarian position.

I doubt anyone can sincerely believe the unintended negative externalities of alcohol prohibition don’t apply to today’s drug war. But sincere or not, that doubt is still sometimes claimed.

To comprehend the enormity of the drug policy failure let’s look at a few statistics of self-evident importance:

• The “War on Drugs” has cost American taxpayers $2.5 trillion
• The annual costs alone is, at minimum $47+ billion
• In 2018 arrests for violation of federal drug laws was 1,654,282
• Of these arrests 1,429,299 were merely for possession (accounting for 86% of all drug law arrests)
• In 2018 arrests for marijuana were 663,367 (that’s 40% of all arrests)
• Of these 608,775 were solely for possession of marijuana (that’s 92% of all marijuana arrests)

Bear in mind that in 2018 nine states and the District of Colombia had made recreational marijuana legal, a further thirteen had decriminalized marijuana possession, and there were only four states that did not have laws allowing for medical marijuana.

The Failure of Prohibition

Prohibition, of course, did not stop drinking in the United States. Although per capita alcohol consumption did drop sharply during the early years of Prohibition, by the latter half of the 1920s tt had rebounded to 60-70% of its pre‐Prohibition level and remained steady before and after repeal. Certainly crime did not decrease. According to one study, crime in 30 major cities increased 24% between 1920 and 1921. In Philadelphia alone, drunkenness‐related arrests nearly tripled from 20,443 in 1920 to 58,517 in 1925. The national homicide rate climbed from about 7 per 100,000 people in 1919 to nearly 10 per 100,000 by 1933, and then it dropped sharply after repeal.

Domestic moonshine and industrial alcohol provided the majority of the alcohol consumed during Prohibition. Moonshiners would distill neutral grain spirits in hidden stills and then attempt to mimic the color and flavor of whiskey or gin with additives called congeners. Industrial alcohol, denatured by government order to make it undrinkable, was typically repassed through a still to remove the poisons, but not always successfully. Thus, between 1925 and 1929, 40 out of every 1 million Americans died from toxic liquor.

That these statistics are so readily available and many people remain baffled by the rise in fentanyl-related heroin overdoses is mind boggling.

Prohibition also failed on its own terms. Instead of putting a stop to problem drinking, it criminalized it, making it more dangerous in the process. Prohibition created a violent black market for alcohol that helped empower and enrich violent criminals. Problem drinkers continued to imbibe. Many drinkers switched from relatively low-proof beer to much higher-proof alcohol, which was easier to transport.

In early 1930, The Outlook and Independent magazine wrote:

The Metropolitan Life Insurance Company has published the fact that the alcoholic death rate among their nineteen million policy holders has increased nearly six hundred percent in the last ten years—double what it was in 1918, and approximately the same as in the years preceding. This removes the last doubt from the mind of any reasonable person that the time has come to move for the repeal of the Eighteenth Amendment.

During Prohibition, the death rate from acute alcohol poisoning (due to overdose) was more than 30 times higher than today.

Criminal Justice Reform

Criminal justice reform is a subject everyone left, right, and center claims it believes in. Research shows what would easily be the most beneficial single act of criminal justice reform: end the War on Drugs.

Our government has spent trillions of dollars trying to stop drug use. It hasn’t worked. More people now use more drugs than before the “war” began. What drug prohibition did is exactly what alcohol prohibition did a hundred years ago: increase conflict between police and citizens. “It pitted police against the communities that they serve,” says neuroscientist Carl Hart, former chair of Columbia University’s Psychology department, who grew up in a tough Miami neighborhood where he watched crack cocaine wreck lives. When he started researching drugs, he assumed that research would confirm the damage drugs did.

But “one problem kept cropping up,” he writes in his book Drug Use For Grown-Ups: Chasing Liberty in the Land of Fear, “the evidence did not support the hypothesis. No one else’s evidence did either.” After 20 years of research, he concluded, “I was wrong.” Now, he says, our drug laws do more harm than drugs. Because drug sales are illegal, profits from selling drugs are huge. Since sellers can’t rely on law enforcement to protect their property, they buy guns and form gangs. Cigarettes harm people, too, but there are no violent cigarette gangs—no cigarette shootings—even though nicotine is more addictive than heroin, says our government. That’s because tobacco is legal. Likewise, there are no longer violent liquor gangs. They vanished when prohibition ended.

Fortunately, there are some real-world alternatives to the dominant approach of criminalization and harsh enforcement in the United States. In 1999 Portugal had the highest rate of drug-related AIDS and the second highest rate of HIV in the European Union. In response it decided in 2001 to decriminalize drug use and the results have been dramatic. The number of people voluntarily entering treatment programs rose dramatically, while the number of HIV infections, drug overdoses, incarceration rates and AIDS have plummeted.

The Portuguese model, while falling short of full legalization for adults, does provide some empirical data to support a policy which treats drug use as a public health problem rather than a crime problem. Its approach is to offer treatment, rather than incarceration, and makes sterile syringes readily available. Possession for small amounts for personal use are non-prosecutable but trafficking in large quantities which cause death or serious bodily harm carry prison sentences.

To give some examples of how the Portuguese model has fared vs. the American one, consider the following statistics:

• Overdose deaths in Portugal declined by over 80 percent after decriminalization
• Incarceration rates for drug offenses in Portugal fell by over 40% between 1999 and 2016
• In 2015 in Portugal there were only three overdose deaths per 100,000
• In 2017 in the United States there were 21.7 deaths per 100,000 (totalling 72,000 people), an overdorse rate of more than six times that of Portugal

For today’s policymakers and policy influencers, Prohibition remains a cautionary tale about government overreach. It was a dysfunctional and badly run system predicated on ugly, populist notions and deluded ideas about the power of government to solve social problems. Not only did it fail to accomplish its goals, it created a host of unintended consequences that were worse than the problems it was supposed to solve.

The straightforward lessons of Prohibition are obviously applicable to any number of public policy issues making headlines today, from the opioid crisis to marijuana legalization to immigration, and our elected leaders would be wise to heed them.

So yes, the anniversary of Prohibition is a warning of all the ways that government policies can go wrong, and the lasting damage the worst of those policies can do. But its eventual reversal and tainted legacy also offer reasons for hope. Prohibition’s end is a reminder that the very worst policies, no matter their scale, aren’t locked in place, and we aren’t stuck with them forever.