Prohibition Was Always a Progressive Experiment

Perhaps the most impressive feat of political misdirection by American progressives, rivaling the apocryphal Democrat/Republican “great flip,” was characterizing drug prohibition as a conservative project.  It’s superficially logical.  Prohibition is enforced by police and courts.  Conservatives support law and order.   Progressives focus on social influences over individual responsibility.  

But using law enforcement to “improve” the lower classes’ unseemly behavior was a late 19th-century progressive project.  Early progressive targets included porn, gambling, prostitution, birth control, and alcohol.  Opium wasn’t an initial priority. 

From Hammurabi to dynastic Egyptian courts, the Twelve Tablets of Rome, English Common Law, the Napoleonic Code, and the American Constitution, western societies’ laws addressed consistent concerns: crimes that harm another’s body, property, finances, or reputation; family and marital relationships and inheritances; civil obligations like paying taxes, attending court when summoned, testifying truthfully; not concealing crimes or criminals; and disputes between citizens.  The Capitulary of Charlemagne (not fully implemented) ordered the clergy to avoid drunkenness and feasting.  Until the 19th century, no western legislation banned consumption or possession of alcohol or drugs.

It’s probably accidental that federal restrictions first targeted opium.  There was no anti-opiate parallel to anti-alcohol Carrie Nation and several hundred followers’ rampaging through Topeka and Wichita saloons in 1901, no publications or lobbying to restrict opiates.  America’s opium use had peaked in 1890.  

The 1914 Harrison Act was enacted to conform to the 1912 Hague Convention, which addressed international economic concerns, not deadly danger to Americans.  The treaty was a response to conflict over opium prices within China being undercut by British sales of cheaper products from India.  Opium suddenly became a hot topic and an opportunity for U.S. purity crusaders.

For decades after its passage, medical experts, organizations, and publications decried Harrison.  In 1915, a New York Medical Journal editorial said it should never have been enacted and would damage careers and families and disrupt the lives of people who would otherwise be socially functional.  In 1926, the Illinois Medical Journal described Harrison as the work of well-meaning blunderers that made trouble for doctors and riches for criminals.

Illicit drug use and sales proved difficult targets under constitutional restraints.  Unlike assault, fraud, defamation, or robbery, there are no victims making complaints of measurable damages.  But, to a sufficiently righteous do-gooder, if a behavior could cause such self-harm that the damage is invisible to the person doing it, how would it be anything but good to use any available method to pressure the individual until there’s no choice but to beg for help? (Similar logic informed federal requirements to add poison to industrial alcohol in the 1920s.)

Drug warriors got creative and began using undercover police allowed to lie along with confidential informants (miscreants turning in others for cash and reduced punishments).  Fourth Amendment protections against searches and seizures were constricted to make drug investigations easier.  Sentences expanded, mandatory minimums were enacted, selling was redefined to include gifts, and possession to include any innocuous substance believed to be a drug.  Under the DARE program, police officers regaled students with tales of drug dangers (real or imagined). Hollywood’s contribution to the drug war effort was imaginatively elaborating drug hazards -- even if the character of the hazards depicted was inconsistent over time.  Reefer caused madness in the 1930s and sloth in the 1980s. 

In 2006, new legislation unleashing massive waste of government and corporate money and effort, inconveniencing millions of law-abiding citizens.  The federal restrictions on pseudoephedrine were justified because it could be used to manufacture methamphetamine.  A 2017 DoJ budget report mentions that methamphetamine, “…is highly pure and potent and increasingly available.”

Between 1914 and 2021, the only drug eliminated from the U.S. black market was Quaaludes, due to the corporation that owned the patent ceasing manufacture in 1983.

Federal agencies were formed to pursue the drug war: 1930, Federal Bureau of Narcotics, 1972, Drug Enforcement Agency, 1978, State Department International Narcotics & Law Enforcement Demand Reduction Program, 1983, Organized Crime Drug Enforcement Task Force, 1988, White House Office of National Drug-Control Policy, 1995, Bureau for International Narcotics and Law Enforcement.

In the late 1990s, an old progressive formula was recycled, rehabilitative justice.  Juvenile courts were an earlier offspring of this philosophy, emphasizing reform over punishment.  Discredited and abandoned by the 1970s, it returned in two decades as therapeutic jurisprudence, targeting new clients via drug courts.

Drug court is presented to the accused as a “diversion” from prosecution leading to a clean record.  That assumes successful completion of a year-long program having no resemblance to a trial.  Normal adversaries -- judge, prosecutor, and defense attorney -- form a “treatment team.”   The accused has no zealous advocate in drug court, no presumption of innocence, no day in court where facts must be proven with evidence.  The focus isn’t conforming to the law but demonstrating compliance with court demands. 

Drug courts don’t reduce resources expended on drug enforcement.  The actual results are called “widening the net.”  Low-level users, whose small stash a cop might destroy with a stern warning, are redefined as damaged people who require help.  Confiscating contraband and issuing warnings isn’t therapeutic, it’s abandoning damaged individuals.  Drug arrests and inmates doubled after Denver’s drug court had been open for two years.

Therapeutic ideology influences more than just drug prosecutions.  One might expect drug infractions to be counted among aggravating factors.  But the addiction-as-disease model means drug use is a mitigating factor justifying a reduced sentence.  Imagine a defendant citing tobacco as a factor during sentencing for a robbery.  Yet, according to medical literature, tobacco and heroin are about equally difficult to quit.

Our government and justice systems were designed to protect individuals and society by limiting the power of those holding office.  Our rights to hold and express unpopular beliefs, own deadly weapons, live free of searches and seizures without warrant or imprisonment without a verdict, with our innocence being presumed are incompatible with government treatment teams reconfiguring the minds of individuals in the service of utopian designs for the uplift of society.

Decriminalization just tinkers with the public image of drug prohibition, with prosecution and punishment remaining on the books. Repealing drug laws doesn’t remove laws against harming others. It would free up resources to police such crimes.

Progressives assume humans and society are perfectible by top-down pressure and expand the scope and function of government out of that belief. Conservatives accept imperfection as a permanent feature of the individual and humanity, working to limit power to reduce potential harm to those on the receiving end.

Image: Pixabay

To comment, you can find the MeWe post for this article here.

If you experience technical problems, please write to