America Has Gone Too Far in Legalizing Vice

Our hearts and minds are shaped not only by reason but also by our habits, which are just as often inexplicably self-destructive as they are reasonable.

Illustration that shows a marijuana leaf and gambling tokens
Getty; The Atlantic

“The cause of a gambling problem is the individual’s inability to control the gambling.” So says the National Council on Problem Gambling, an organization funded by the gambling industry to help people who have become addicted to its products. This attitude—that anyone who falls into gambling addiction has only themselves to blame—has allowed state lawmakers to ignore arguments that more access to gambling might make it easier for people to lose control. Since the Supreme Court struck down previous restrictions on sports betting in 2018, 36 states have legalized it (26 of which allow mobile betting), and new ballot initiatives are proposed every year. If you’ve watched a sporting event lately, you’ve been bombarded with ads for online sports gambling—and this weekend’s Super Bowl will be no exception.

Similarly, when marijuana legalization is debated, supporters emphasize how the responsible use of marijuana might alleviate the pain of those suffering from incurable diseases. They also point to the worst excesses of the War on Drugs, which disproportionately affect Black people, though are fortunately getting rarer. This argument has been successful: Only four states still prohibit all uses of marijuana. In 19 states, the recreational use of marijuana is now fully legal; all other states allow medicinal use of cannabis products.

When arguments are made for loosening the government’s restrictions on vice, usually proponents make their case with idealistic situations: Shouldn’t responsible, independent adults be able to make decisions for themselves about how they spend their money or use their body? This seems appealing, and there certainly are well-informed adults who gamble and use marijuana judiciously. But focusing on these ideal cases and basing our laws on them disregards millions of people who suffer because of their addictions—and it obscures the underhanded tactics of companies who make money off the misery of addicts.

These debates expose a conflict over what we believe about virtue and vice. If we think that human beings—especially young people who are forming the habits that will last a lifetime—tend to make decisions based on what they have reasoned to be their best interests, then legalization makes sense. If life is a series of contracts we enter into freely, then there’s no reason to keep potential harms off our smartphone or out of storefront dispensaries. However, this way of seeing the world overlooks the fact that our hearts and minds are shaped not only by reason but also by our experiences, affections, and, most important, our habits, which are just as often inexplicably self-destructive as they are reasonable.

A rise in access to legal gambling will inevitably lead to a rise in gambling addicts. Natasha Dow Schüll’s book, Addiction by Design, carefully documents how electronic slot machines are designed to get players addicted. One game designer says: “Once you’ve hooked ’em in, you want to keep pulling money out of them until you have it all; the barb is in and you’re yanking the hook.” Sports-betting companies have enticed colleges and universities to allow them to promote their products on campus, then offered free bets to lure customers in.

State laws tend to allow the gambling industry to regulate itself, which means that these companies are expected to identify and exclude their steadiest customers. This has been as unsuccessful as one might expect; as much as 50 percent of revenue comes from “problem gamblers,” while one study showed that in 1998, only 4 percent of gambling revenue from video lottery games came from “responsible” gamers. Just as tobacco companies would go out of business if people used their products responsibly, gambling wouldn’t be a multibillion-dollar industry if it weren’t for addicts.

Marijuana has a more complicated legacy, especially because it has real (but rather modest) benefits for medicinal use. However, careful analyses show that marijuana legalization has contributed to a rise in opioid-related deaths, especially when dispensaries can legally sell all sorts of cannabis products. Permitting dispensaries also increases referrals for addiction treatment, which is unsurprising considering that higher-potency products are more dangerous. The best evidence we have suggests that marijuana is harmful to teenage brains as they develop and that more teenagers use marijuana when it is legalized in their state.

The industries that profit off addiction want to frame the question of access around “responsible use” and occasionally suggest that some people might have a genetic predisposition to addiction. This individualistic framing allows them to avoid talking about how much effort they’re putting into making their products as accessible as possible. Even more important, it elides the question of whether we are all better off when it’s easier to start an addiction and harder to escape one.

There’s a richer and more compelling vision, one that is drawn from philosophical traditions across the ages. It recognizes that our life together isn’t merely a series of contracts we negotiate, and that our ability to make good decisions isn’t based simply on our rationality. Virtue is not simply doing good deeds, but also a set of dispositions and habits that must be practiced in order to flourish. Just as people can be sucked into addictions, we can also work to develop the virtues inside us so that we can be kind, generous, and self-controlled throughout our lives.

Driven by this rich view of life together, we should make it as difficult as possible to access things that impair our ability to make good decisions. It’s not the government’s primary job to protect people from their own worst impulses, nor is the state the primary source of our virtue formation. But we do recognize that policy plays a role in shaping the environment so that we can develop our virtues. Just as highways have guardrails for the moments when a driver isn’t exercising perfect self-control, so we also need guardrails to help people from driving off cliffs of vice.

People often point to the historical example of Prohibition in America to prove that overregulation of vice carries its own dangers. While the classical tradition of virtue encourages moderation in all things (including moderate regulation and moderate prohibition), this tale is more complicated than the one that exists in the popular imagination. Domestic violence and alcohol-related illnesses were at record highs prior to the passage of the Eighteenth Amendment, and Prohibition was effective at reducing both. There’s no evidence that organized crime increased in strength because of Prohibition, merely that it became more visible. In any case, a century later we can design our regulations around gambling and marijuana to protect the most vulnerable people—especially young people—while still allowing those who want to lose some money to do so with a little extra effort and permitting those who could benefit from marijuana to do so under the supervision of a physician.

Some judicious restrictions are better for everyone: Gambling should take place in casinos, not on smartphones, and marijuana should be used only under a health-care provider’s supervision. We will need a lot more than a few regulations to help one another grow in virtue—but right now vice and its lobbyists have an unfair advantage that needs to be taken away.