The jurors were weighing the plausibility of various accounts of the activities of one Frederick Goodman. The state contended that Goodman had been in possession of enough vials of cocaine to indicate an intent to distribute. The defense suggested he had been a victim of circumstances, happening onto Park Heights Avenue and Wylie last October out of concern his son might be there to score dope. The jury took about 15 minutes to convict. There wasn't much sympathy for Goodman.
When one sits on a Circuit Court jury for a minor drug case, the mind wanders. Most of the speculations are churlish: Does the defense attorney really believe the horsefeathers his client is pitching? Could the judge share his hard candies with the jury without tainting the proceedings? And then:
What would public choice theory say about anti-drug laws?
The question arises when one notes that the statutes, despite their expensive and sometimes zealous enforcement, have failed to improve life on the city streets. Why would society persist in a notoriously unsuccessful effort? It's the kind of question that public choice theory might have been designed to address.
The theory's core insight is that despite all their professions of selfless concern for the public good, public officials ( and institutions) act principally out of self-interest. Simply put, every policy creation of government spawns a public-sector constituency for that policy's continuation. This public-sector constituency is as much a special interest group as any in the private sector.
When a public policy seems to have failed, but just won't go away, there may be a number of factors maintaining the status quo -- failure to recognize the dismal results, hope that an amended policy (or more of the same) will work, or absence of a better idea. Public choice theory would add another perspective: The policy remains in place because public sector constituencies benefit from its existence and employ their resources and influence to protect their interest in its continuation.
In Baltimore, for example, drug commerce and use flourish despite the prohibiting statutes. The drug trade is so rampant that neighborhoods are defined by it in the same way neighborhoods of greengrocers or antique shops are tagged by their dominant form of commerce. In some urban neighborhoods, drug merchants are the nearest one finds to an entrepreneurial class, or even a self-supporting class.
This is an assertion of fact, not a moral judgment. One could say the same of the tavern business in Fells Point. In parts of the city, purchasing cocaine is little more difficult than finding a beer on Thames Street. As a practical matter, the criminalization of drugs has been a failure -- a vastly expensive public policy exercise that has not affected the availability of drugs nearly enough to make a difference in the life of the city or its residents.
Thus the taxpayer receives little and pays dearly. The police-court-penal complex is very expensive. Drug-related crime -- a product largely of the eradication effort's marginal impact on pricing -- brings a nightly horror show. A criminal class imperils the innocent -- its battles for turf far exceeding the misbehavior of people purveying legalized vice. Frustrated legislators ride roughshod over constitutional constraints on search and seizure, and cadres of paramilitary police, whose esprit de corps feeds on door-smashing, give every citizen cause for uneasiness.
Nor does the citizen benefit by becoming a juror, at $10 a day, to hear these cases. To convict Goodman took 14 people the better part of three days, including time spent awaiting jury selection. If the average juror's outside rate of pay is $100 a day, the group was taxed $3,780.
Yet the enforcement effort does have beneficiaries, in the private as well as public sectors. In the private sector, the distilling industry derives an obvious advantage. So do the drug vendors themselves, who enjoy premium prices, legal barriers to competition and low effective tax rates -- a combination so attractive that there has never been any shortage of people willing to enter the business despite its risks.
The public sector also has players who benefit from the failed policy. The elected official calling for sterner measures and bigger budgets for police, prosecutors and prisons appears morally unassailable. To the extent that he or she is successful, ,, the law enforcement constituency gets to command a larger proportion of the community's wealth.
Police agencies that derive operating funds in part from drug-related property seizures have a direct financial interest in the maintenance and expansion of anti-drug laws, regardless of their effectiveness.
Similarly, public-sector employees involved in eradication efforts
find their services much in demand. A trial judge in his courtroom enjoys a unique standing, one far loftier than if he (or the prosecutor) made a living writing wills in a storefront law office. The clerks are servants of an august court of law instead of a drab insurance agency.
The bailiffs, police officers and prison guards, who might otherwise hold factory jobs, tend bar or drive cabs, swagger among their fellow citizens with the threat of lethal force on their hips. This is heady stuff. None of them fears being laid off because of slack business.
All these people, moreover, along with the institutions thaemploy them, collect a rent off the below-market pricing of jurors' services, whose $10-a-day pay leaves more money for judges, clerks, prosecutors, court reporters, bailiffs, police officers and prison guards.
In short, much of the public sector holds a formidable stake in continuing the anti-drug war regardless of whether it works. This interest exists despite the fact that many if not most public sector employees may also sincerely believe in the existing policy -- believe that the city would be worse off if drugs were legalized, believe that even if the end isn't in sight society must try, for its own health, to eradicate certain drugs.
There is nothing in public choice theory that requires us to interpret such beliefs as cynical or hypocritical. Public choice theory merely adds another perspective: The beliefs may be sincere, but those who hold them are also interested parties. The balance they strike between other people's interests and their own is apt to be similar to that found in the private sector, where people seldom seek to reduce their own importance or pay.
Nor does public choice theory speak directly to whether a particular policy should be abandoned. The statutes against murder, for example, have a large public-sector constituency, yet they haven't been altogether successful either. Still, we want to keep murder illegal, because in a civilized society there simply is no alternative.
On many matters of public policy there are real choices, however. Drug commerce may or may not be one of them. It's reasonable at least to ask those on the drug-eradication payroll why the millions they expect to be paid in the future will make a difference when all the millions in the past have not.
John C. Boland, formerly a senior editor of Barron's, is the author most recently of "Rich Man's Blood," published by St. Martin's Press.