The United States imprisons almost one in one hundred American adults—a higher number and percentage of its population than any other country, according to a February 29, 2008 Washington Post article. This has been especially devastating for minorities—as the Post points out, “(o)ne in nine black men ages 20 to 34 is behind bars.” Many of these people remain in a continual pattern of crime. Are we a safer society as a result, or should we re-evaluate our crime policies?

When I was in college, Johnnie Cochran gave a talk in which he asked whether we are doing a service to the country by building a land of barbed wire and concrete “from sea to shining sea.” There is a psychological and social effect that has been pointed out by Ayn Rand, who argued (astutely) that social control is easier if we create a nation of criminals. Many statutes do not prevent crimes; they create them. Drug laws are a perfect example: drug use infringes on no one’s rights; it is the essence of a “victimless crime.”

Some might respond that there is no such thing as a “victimless crime” because of the effects of drug use on the user’s friends and families. These costs are all too real as the legacy of families torn apart by drug abuse suggests. If we are going to adopt this utilitarian line of reasoning, though, then we have to weigh the costs to families against the social costs created by the unintended consequences of the war on drugs.

The drug war is an integral part of the rapidly growing American prison population. Outlawing marijuana, cocaine, heroin, and other drugs created a whole new class of crimes and moved traffic in psychoactive drugs out of the legitimate marketplace and into the black market.

Another one of the unintended consequences of the drug war is the escalating potency of the drugs people use today. The marijuana on the streets today is much more potent than the marijuana that was on the streets thirty and forty years ago. As penalties have changed, so too have the drugs people use. Cocaine became more prevalent after the government cracked down on heroin in the 1970s. The crack epidemic was in part a response to attempts to eradicate cocaine, and the crystal meth epidemic of the last decade has happened in part in response to the war on crack. Criminal penalties give people incentives to pack as much potency into as small a space as possible; therefore, drug dealers have incentives to increase the potency of the drugs they deal.

Yet other examples of the unintended consequence of the drug war are the extremely low quality of the drugs that appear on the street and the violent means that drug dealers use to settle disputes. Someone who buys bad aspirin has legal recourse against the company that sold it to him. Someone who buys bad heroin or bad crack has no such legal recourse, and disputes over quality will be settled violently, if at all. Epidemics of urban crime are among the unintended consequences of the drug war.

It appears that we learned nothing from our experiment with alcohol prohibition in the first part of the twentieth century. When alcohol was outlawed, alcohol production and distribution were taken over by organized criminal syndicates—think Al Capone—and crime skyrocketed.

Prison is not the answer. In a recent set of lectures given on behalf of the Institute for Humane Studies, Georgetown University legal scholar John Hasnas argued in favor of restitution as opposed to incarceration and statutory law. Hasnas argued that people are not necessarily reformed while in prisons and jails. They learn to be better criminals. They attach themselves to larger criminal networks. After some of the horrible experiences of prison—like prison rape, for example—still others are likely to become even more withdrawn and antisocial. The current system isn’t working.

Proponents of law and order might see this as bleeding-heart, soft-on-crime liberalism. I agree that crime should be punished; indeed, a strong legal system is essential for a well-functioning society. To take one example, it has been argued by legal scholar Richard Posner (and I agree) that the penalties for drunken driving are not nearly severe enough. It is quite another matter, however, to argue that our current system is doing what it was meant to do. It is time to re-examine our drug policy.