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Decriminalization vs. Legalization

Jeffrey Miron

prohibition

Sheriff’s deputies dumping illegal booze during Prohibition. (Photo courtesy Orange County Archives, 1932)

Is decriminalization or legalization the better alternative to the war on drugs?

Decriminalization means the elimination of criminal penalties for possession of small amounts. This lowers the “full” price for drugs, thereby increasing demand. Because most negatives of prohibition grow with the size of the black market (violence, overdoses, corruption, racially biased policing, infringements on civil liberties), decriminalization plausibly increases such harms. The only clear benefit of decriminalization is that users do not face jail time or criminal records.

This perspective raises a question: why has decriminalization sometimes reduced the negatives of prohibition?

The answer is that decriminalization sometimes involves not just reduced penalties for possession but also reduced enforcement against production and distribution. Scaling back enforcement means less disruption of the underground market, which should reduce violence, and expansion of the scope for medical provision, improving quality control and reducing overdoses. 

This perspective explains why Oregon and other places that decriminalize do not experience obvious reductions in overdoses or crime; that is exactly what we should expect unless decriminalization involves lower supply‐​side enforcement.

Under full legalization, drug markets move fully above ground (assuming regulation and taxation are moderate), which eliminates the “drug‐​associated” ills due to prohibition. The history of alcohol in the United States is a perfect illustration; violence in the alcohol trade was absent both before and after Prohibition, and accidental overdoses soared during Prohibition.

This article appeared on Substack on February 13, 2024.

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