This Election Day, eight states have marijuana legalization and decriminalization referenda on their ballots, making it very possible that the number of states in which the recreational consumption of marijuana is legal could double after November 8^th. This development has, in some respects, normalized the conversation surrounding the use of “soft drugs” like cannabis and mescaline.
But…why stop there? What about decriminalizing and legalizing hard drugs like crack, cocaine, heroin, methamphetamine, etc.?
Whenever I ask this question, I am inevitably met with blank, incredulous stares. Sometimes I even get angry exclamations returned in my direction. “Are you saying that you think it is a good idea to decriminalize, not to mention legalize, the use, sale, and distribution of drugs that can, and actually do, kill people?!”
My answer is always the same: Yes… and it would likely save more lives than the War on Drugs could ever hope to save.

Drugs are killing people in droves, despite the best efforts of Congress and the DEA.

Since 1970, in the United States, the rate of unintentional drug overdose deaths has increased from approximately 1.2 deaths per 100,000 people in 1970 to 6.2 deaths per 100,000 people in 2000 up to 14.7 deaths per 100,000 people in 2014. In 2014 alone, fatal drug overdoses killed more people (46,471 persons) in the United States than car accidents (35,369) or firearms (33,636).
Also since 1970, when the Controlled Substances Act was passed, the number of Schedule I drugs has more than doubled—increasing from 81 to nearly 175 substances. Schedule I includes drugs, such as heroin, LSD, and ecstasy, that, according to the DEA, have no accepted medical use and a high potential for abuse. Violations involving Schedule I drugs, along with Schedule II drugs, including cocaine and methamphetamine, are associated with the most stringent punishments.
These death rates and scheduling rates have risen despite the efforts of the DEA—an organization whose manpower and annual budget has increased significantly (nearly 5,000 special agents and just over $2 billion today) since it was founded in 1973 with 1,470 special agents and a budget of less than $75 million.
But what if drug deaths weren’t happening despite the DEA, but because of it? I contend that the increasing rates of unintentional drug overdose deaths are a direct consequence of the War on Drugs and that if we want to see changes in these awful trajectories, we must consider ending prohibitionist policies. Here’s why:

Drug prohibition makes drugs more potent and dangerous.

Drug dealers, manufacturers, traffickers, and distributors must incur additional costs and expend additional resources to evade law enforcement in order to avoid arrest and incarceration. These costs significantly alter the trade-offs and incentives for people participating in illegal drug markets in ways that we do not see in legal markets. And as a consequence, the market process, which we typically associate with innovation, product quality improvements, and prosperity in legal markets, is distorted when these misaligned incentives are at play.
One such distortion caused by misaligned incentives is what I call “malnovation.” “Malnovation” is a form of innovation that illegal drug entrepreneurs use to circumvent the law, whereby they chemically alter illegal, scheduled drugs just enough so that their newly created drug is not technically on the scheduling list, and thus not illegal. Designer drugs, analogs, and the emergence of bath salts—all inferior and more dangerous products—are examples of this process.
When the DEA put 10 new synthetic cathinones (aka “bath salts”) on the emergency schedule list in March 2014, most of these compounds were either synthetic forms of already illegal drugs or slight chemical modifications of already illegal drugs, all of which were being sold under similar street names, such as “molly” or “bath salts.” These new drugs that were quite dangerous and chemically unstable only existed on the market because the drugs that consumers actually wanted to buy were costlier to produce and sell. Why? Because they were illegal.

Drug prohibition encourages producers to lie about their product, endangering consumers.

The reality of many different chemicals being sold under the same street name brings us to another distortion created by prohibition: limited information and recourse options available to drug consumers.
When I go to the store to purchase ibuprofen, I do not spend considerable time worrying whether or not I have been sold an incorrectly labeled concoction that might seriously harm me. I know that the store owner has a vested interest in providing a quality product. His profit motivations and my ability to sue him if he harms me has sufficiently created an incentive for him to provide me with a decent quality product. The retail store can also sue up the supply-chain if their distributor or manufacturer sold them ineffective or adulterated products.
These mechanisms do not exist, however, in illegal markets.
The reality, as we have seen with the horrifying number of deaths due to fentanyl-laced heroin over the past three years, is that information is very limited in drug markets for consumers. Bad batches persist in illegal drug markets precisely because suppliers have very strong incentives to mislead customers and individuals further down the supply chain in order to raise profits. Although intentionally killing one’s customers is bad for any business, these cases are usually not so cut and dry.
It is common practice for illegal drugs like heroin and cocaine to be cut (mixed with other substances) to alter the potency in order to bring down purer forms of these drugs to useable levels. When drugs are cut with baby formula, Novocain, or other relatively innocuous substances, the outcomes are usually not devastating. Problems arise and death rates rise, however, when these drugs are cut and mixed with chemicals that end up increasing the potency of the drug (as is the case when fentanyl, a very power opioid, is mixed with heroin), unbeknownst to the consumer. The consumer then takes an incorrect dose that can seriously injury or kill them.
Consumers and their families in these situations do not have the option to sue the drug dealer, take them to court, or have them arrested. Consequently, consumers in illegal markets have less assurance that they will be treated fairly and honestly because they have very limited options to punish their dealer if they are deceived. Furthermore, many times these adulterations are even unknown to the dealers! Potent chemicals may be mixed earlier in the supply chain, and no one is informed. In both cases, prohibitionist policies have directly limited the safety and protection of consumers in ways that can be quite devastating.

The War on Drugs makes people less safe.

There are many other examples of misaligned incentives and distortions that emerge in illegal drug markets because of prohibition, but these two examples are crucial to our understanding of how prohibition directly undermines the quality and safety of illegal drugs. They also suggest that if prohibitionist policies were lifted, we should expect to see a reversal of these distortions and movements towards drug alterations that are quality and safety-enhancing.
Opponents of the War on Drugs must go further than saying the War on Drugs has failed. It has not only failed, but it has made the drugs available on the black market necessarily less safe. Only by taking steps towards the decriminalization and legalization of all drugs, including the ones that could kill people, can we expect to see fewer instances of drugs actually killing people.