With 93,000 dead last year, America’s overdose crisis has reached new heights. Deaths were up 29% over 2019, which exceeded the expectations of many who anticipated a significant increase. More Americans die each year of overdoses than died in any war except the Civil War and World War II. Tragically, prohibition is the primary cause of these deaths, and we could save tens of thousands of lives next year if we legalized drugs, especially opiates.
Over the past decade, fentanyl has been the primary cause of overdoses, and prohibition is the main reason it has become so common in our drug supply. Fentanyl is a synthetic opioid that is around 100 times more potent than heroin. Although it varies between users, the lethal dose of fentanyl is about three milligrams, which is just a few dozen grains. Users are increasingly unknowingly consuming drugs tainted with fentanyl, and their normal dose suddenly becomes lethal.
Prohibition caused this fentanyl-overdose epidemic for the same reason that those who smuggle alcohol into a sporting event prefer flasks to a 12-pack. When a substance has to be smuggled, the smuggler prefers the highest potency, smallest version. During alcohol prohibition, beer and wine almost disappeared from the market. And while spirits accounted for about 40% of alcohol sales before prohibition, that jumped to 90% after. The price of beer also rose an estimated 700%.
This is called the iron law of prohibition, and it works against the most optimistic goals of prohibitionists. Crack down on smuggling at the border and you won’t decrease the number of users, you’ll just increase the potency of the drug. Compulsive drug users aren’t suddenly “cured” by a lack of supply because prohibition primarily changes the nature of the drug supply, not whether the drug is available.
Unfortunately, the pandemic ramped up the vicious logic of the iron law of prohibition. Travel restrictions at the borders and limits on international trade made drug smuggling more difficult. Obeying this iron law, smugglers increasingly preferred fentanyl. Just this past summer, one man was caught on a bus with 28 pounds of fentanyl, enough to kill 4.2 million Americans. If he had chosen instead to smuggle heroin, he would have had to carry 2,800 pounds to achieve the same potency. As of May, more fentanyl was seized at the border than in all of 2020. In the past three years, Border Patrol agents say they’ve seen a 4,000% increase in Fentanyl seizures.
“When do we say enough is enough and admit that drugs won the war we’ve long waged against them?”
But don’t think those seizures meaningfully diminish the amount of fentanyl in America’s drug supply. While U.S. Customs and Border Protection (CBP) and the U.S. Drug Enforcement Administration (DEA) love to have press conferences touting their enforcement efforts, fentanyl is just too easy to get into the country or manufacture here. And if CBP and DEA want to crack down on smuggling even more, smugglers can always change to carfentanil, which is terrifyingly 100 times more potent than fentanyl. In fact, that’s already occurring.
When do we say enough is enough and admit that drugs won the war we’ve long waged against them?
There have been laudable efforts to solve the overdose crisis in other ways, and they need more attention. For example, Narcan, a drug that can stop overdoses, is being more widely distributed. Fentanyl test strips are also becoming more common, and some municipalities are distributing them for free.
Yet if you understand the iron law of prohibition, these are half measures at best. Nothing will come close to saving as many lives as legalization. Our infatuation with prohibition, and our unease with drug use, is killing tens of thousands every year. It has to stop.
Drug legalization can take a variety of forms. Alcohol, after all, isn’t just legal. Licenses are required for commercial sales and there is a drinking age. Some over-the-counter drugs like Sudafed are legal but require an ID to purchase. Many other legal drugs are prescription only.
Whatever system we choose, legalizing heroin and fentanyl will immediately save lives. Street opiates are tainted and of uncertain potency, but pharmaceutical-grade opiates are perfectly safe to take in the proper amount. Doctors and nurses inject dangerous opiates into patients thousands of times per day, and they do it with confidence because they know what drug they are administering and how much to give. Recreational heroin users are capable of doing the same thing. After all, it’s their life.
Will there still be overdose deaths if we legalized heroin? Absolutely, and quite a few, just as there are still many deaths from alcohol abuse. Yet if we found out that thousands were dying from alcohol tainted with poison, we would first address that problem. After we stop the thousands of unnecessary deaths, we can start rationally dealing with other problems associated with drug and alcohol abuse.
Drug legalization should no longer be seen as a radical position. The radicals are those who, in the face of nearly 100,000 overdose deaths, still believe “cracking down” is the answer. Radical times call for rational solutions.
Trevor Burrus is a research fellow in the Cato Institute’s Robert A. Levy Center for Constitutional Studies and editor‐in‐chief of the Cato Supreme Court Review