Last summer WFB was asked by the New York Bar Association to
make a statement to the panel of lawyers considering the
drug question. He made the following statement:

We are speaking of a plague that consumes an estimated $75 billion per year of public money, exacts an estimated $70 billion a year from consumers, is responsible for nearly 50 per cent of the million Americans who are today in jail, occupies an estimated 50 per cent of the trial time of our judiciary, and takes the time of 400,000 policemen--yet a plague for which no cure is at hand, nor in prospect.

Perhaps you, ladies and gentlemen of the Bar, will understand it if I chronicle my own itinerary on the subject of drugs and public policy. When I ran for mayor of New York, the political race was jocular, but the thought given to municipal problems was entirely serious, and in my paper on drugs and in my post-election book I advocated their continued embargo, but on unusual grounds. I had read--and I think the evidence continues to affirm it--that drug-taking is a gregarious activity. What this means, I said, is that an addict is in pursuit of company and therefore attempts to entice others to share with him his habit. Under the circumstances, I said, it can reasonably be held that drug-taking is a contagious disease and, accordingly, subject to the conventional restrictions employed to shield the innocent from Typhoid Mary. Some sport was made of my position by libertarians, including Professor Milton Friedman, who asked whether the police might legitimately be summoned!
if it were established that keeping company with me was a contagious activity.

I recall all of this in search of philosophical perspective. Back in 1965 I sought to pay conventional deference to libertarian presumptions against outlawing any activity potentially harmful only to the person who engages in that activity. I cited John Stuart Mill and, while at it, opined that there was no warrant for requiring motorcyclists to wear a helmet. I was seeking, and I thought I had found, a reason to override the presumption against intercession by the state.

About ten years later, I deferred to a different allegiance, this one not the presumptive opposition to state intervention, but a different order of priorities. A conservative should evaluate the practicality of a legal constriction, as for instance in those states whose statute books continue to outlaw sodomy, which interdiction is unenforceable, making the law nothing more than print-on-paper. I came to the conclusion that the so-called war against drugs was not working, that it would not work absent a change in the structure of the civil rights to which we are accustomed and to which we cling as a valuable part of our patrimony. And that therefore if that war against drugs is not working, we should look into what effects the war has, a canvass of the casualties consequent on its failure to work. That consideration encouraged me to weigh utilitarian principles: the Benthamite calculus of pain and pleasure introduced by the illegalization of drugs.

A year or so ago I thought to calculate a ratio, however roughly arrived at, toward the elaboration of which I would need to place a dollar figure on deprivations that do not lend themselves to quantification. Yet the law, lacking any other recourse, every day countenances such quantifications, as when asking a jury to put a dollar figure on the damage done by the loss of a plaintiff's right arm, amputated by defective machinery at the factory. My enterprise became allegorical in character--I couldn't do the arithmetic--but the model, I think, proves useful in sharpening perspectives.

Professor Steven Duke of Yale Law School, in his valuable book, AMERICA'S LONGEST WAR: RETHINKING OUR TRAGIC CRUSADE AGAINST DRUGS, and scholarly essay, "Drug Prohibition: An Unnatural Disaster," reminds us that it isn't the use of illegal drugs that we have any business complaining about, it is the abuse of such drugs. It is acknowledged that tens of millions of Americans (I have seen the figure 85 million) have at one time or another consumed, or exposed themselves to, an illegal drug. But the estimate authorized by the federal agency charged with such explorations is that there are not more than 1 million regular cocaine users, defined as those who have used the drug at least once in the preceding week. There are