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Nova University Law Center, before the select committee on Narcotics
Abuse and Control, House of Representatives, Concerning: A New Beginning in U.S. Drug
Policy, September 29th, 1988, pp.410-454.
[T]he history of the narcotics legislation in the country "reveals the determination of congress to turn the screw of the criminal machinery -- detection, prosecution and punishment -- tighter and tighter."
The U.S. Supreme Court in _Albernaz v. United States_, 450 U.S. 333, 343 (1981)
The chief cause of problems is solutions -- Eric Sevareid
Mr. Chairman, I would like to express my appreciation to the Committee for inviting me to participate in this important hearing on U.S. Drug Policy. This hearing could be and should be the start of a new beginning in the conception and execution of our drug laws. Indeed, if there is one over-riding theme in my prepared statement, it is just that: more than anything else -- more than revised laws or the commitment of new resources -- we need a careful, comprehensive study of the costs and benefits of present drug policy, followed by a clear articulation of the fundamental goals sought to be achieved by our drug policy.
First, let me identify myself for the record. I am both a lawyer and a law professor. I have been a full-time member of the law faculty of the Nova University Law Center since 1975.
One of my primary areas of specialization is the criminal justice system. Since the late 1970s, I have followed developments in U.S. drug law. With the aid of a grant from the Nova Law Center in 1982, I published what is to my knowledge the first critique of the U.S. War on Drugs, the substance of which is clearly indicated by its title, 'Exposing the War on Cocaine: The Futility and Destructiveness of Prohibition', 1983 _Wisconsin Law Review_ 1305. (1)
My published work in this field has been cited widely by the press, being summarized, for example, in the _Atlantic Monthly_ cover story on cocaine, of January 1986. I am most widely known as the author of _Breaking the Impasse in the War on Drugs_, reviewed in the _New York Times_ Book Review Section in December 1986. I have spoken on drug law and policy at many panels and conferences in the United States and in Europe.
My prepared statement for this hearing addresses three fundamental questions. What is the state of the War on Drugs? How did we get there? Where should we go from here?
The current 'War on Drugs' began on October 2nd, 1982, with a radio address by President Reagan to the Nation: "The mood towards drugs is changing in this country and the momentum is with us. We are making no excuses for drugs hard, soft, or otherwise. Drugs are bad and we are going after them".(2) Twelve days later, in a speech delivered at the Department of Justice, the President followed with an "unshakable" commitment "to do what is necessary to end the drug menace" and "to cripple the power of the mob in America."(3) He cited the "unqualified success" of the Miami Task Force on Crime and Drugs as a model to build on.(4) It is important to note that President Reagan was not the first to declare war on drugs. President Nixon had done the same in 1971. In a message to Congress he had described drug abuse as a "national emergency", denounced drugs as "public enemy number one" and called for a "total offensive".(5) First Drug War or not, the President's statement about the mood of the country seemed accurate. At the time of his October 1982 speeches, some 3,000 parents groups had already organized nationwide under the umbrella of the National Federation of Parents for Drug Free Youth.(6) Within the government, the House Select Committee(7) and the attorney general's Task Force on Violent Crime(8) had urged the President to declare War on Drugs.
The President's October 14th speech called for and got more of nearly everything:(9) 1.more personnel -- 1,020 law enforcement agents for the Drug Enforcement Agency (DEA), Federal Bureau of Investigation (FBI), and other agencies, 200 Assistant United States Attorneys, and 340 clerical staff; 2.more aggressive law enforcement -- creating 12 (later 13) regional prosecutorial task forces across the nation "to identify, investigate, and prosecute members of high-level drug trafficking enterprises, and to destroy the operations of those organizations"; 3.more money -- $127.5 million in additional funding and a substantial reallocation of the existing budget from prevention, treatment, and research programs to law enforcement programs; 4.more prison bed space -- the addition of 1,260 beds at eleven federal prisons to accommodate the increase in drug offenders to be incarcerated; 5.more stringent laws -- a "legislative offensive designed to win approval of reforms" with respect to bail, sentencing, criminal forfeiture, and the exclusionary rule; 6.better interagency coordination -- bringing together all federal law enforcement agencies in "a comprehensive attack on drug trafficking and organized crime" under a Cabinet-level committee chaired by the attorney general; and 7.improved federal-state co-ordination, including federal assistance to state agencies by training their agents.
Energized by the hardening attitude toward illegal drugs, the administration acted aggressively, mobilizing an impressive array of federal bureaucracies and resources in a co-ordinated, although largely futile, attack on the supply of illegal drugs -- principally cocaine, marijuana, and heroin. The administration hired hundreds of drug agents and cut through bureaucratic rivalries with greater vigor than any administration before it. It acted to streamline operations and compel more co-operation among enforcement agencies. It placed the FBI in charge of DEA and gave it major drug enforcement responsibility for the first time in its history.(10) And, as the centerpiece of its prosecutorial strategy, it fielded a network of Organized Crime Drug Enforcement Task Forces in 13 'core' cities across the nation.(11)
To stop drugs from entering the country, the Administration attempted to erect a contemporary anti-drug version of the Maginot Line: the National Narcotics Border Interdiction System (NNBIS), an intelligence network designed to co-ordinate radar surveillance and interdiction efforts along the entire 96,000-mile border of the United States. As part of that initiative, NNBIS floated radar balloons in the skies over Miami, the Florida Keys, and even the Bahamas to protect the nation's perimeter against drug-smuggling incursions.(12)
The CIA joined the war effort by supplying intelligence about foreign drug sources, and NASA assisted with satellite-based surveillance of coca and marijuana crops under cultivation.(13)
The administration also initiated financial investigations, aided by computerized data banks and staffed by Treasury agents specially trained to trace money-laundering operations.(14) The State Department pressured foreign governments to eradicate illegal coca and marijuana plants and financed pilot programs to provide peasant farmers with alternative cash crops.(15) It also negotiated Mutual Assistance Treaties to expose 'dirty' money secreted in tax-haven nations and to extradite defendants accused of drug conspiracies against the laws of the United States.(16)
The government also literally militarized what had previously been only a rhetorical war, deploying the armed forces of the United States to "assist" drug enforcement operations. The Department of Defense provided pursuit planes, helicopters, and other equipment to federal civilian enforcement agencies, while Navy E-2C 'Hawkeye' radar planes patrolled the coastal skies in search of smuggling aircraft and ships.(17) The Coast Guard, receiving new cutters and more personnel, intensified its customary task of interdicting drug-carrying vessels at sea.
1981 amendments to the Posse Comitatus Act relaxed the century-old ban on military enforcement of criminal laws and permitted Coast Guard boarding parties to sail on Naval warships serving as 'platforms' for Coast Guard interdictions.(18) Finally, for the first time in American history, Navy vessels, including a nuclear-powered aircraft carrier, began directly to interdict -- and in one case fired upon -- drug smuggling ships in international waters.(19) On a purely technical level, the Administration could rightly claim some success in focusing the resources of the federal government in a historically large and single-minded attack on the drug supply.
What were the results of this extraordinary enforcement program? It set new records in every category of measurement -- drug seizures, investigations, indictments, arrests, convictions, and asset forfeitures. For example, DEA, FBI and Customs seized nearly one-half billion dollars in drug-related assets in 1986.(20) DEA arrested twice as many drug offenders in 1986 (12,819) as in 1982, and the percentage of arrestees constituting high-level traffickers also rose from roughly one-third to one-half.(21) DEA, FBI, and other federal agencies seized over 100,000 lbs. Of cocaine in 1986.(22) From the end of 1980 to June 30, 1987, the prison population (counting felonies only) soared from 329,021 to 570,519. Roughly 40 percent of new prison inmates now go in for drug offenses. In recognition of this boom, the 1989 budget submission of the President seeks a 48 percent increase for the U.S. Bureau of Prisons in order to accommodate an anticipated increase in prisoners from 44,000 today to 72,000 by 1995. Despite the Administration's accumulation of impressive statistics, domestic marijuana cultivation took off and the black market in cocaine grew to record size. In 1980, the supply of cocaine to the U.S. was estimated at 40 metric tons; by 1986 it had risen to 140 tons. As a result of this abundant supply and a more-or-less stable pool of buyers, prices fell dramatically. In 1980, a kilo of cocaine cost $50,000 - $55,000 delivered in Miami; by 1986, it had fallen to the range of $12,000 - $20,000; $14,000 was typical for much of 1988. In 1980-81, a gram of cocaine cost $ 100 and averaged 12 percent purity at street level. By 1986, the price had fallen to as low as $80 ($50 in Miami), and the purity had risen to more than 50 percent.(23) Around the nation, crack was marketed in $5 and $10 vials to reach the youth and low-income markets.(24) More than 22 million Americans report having tried cocaine; and roughly 5.8 million report having used it during the month preceding the 1985 National Household Survey.(25) Cocaine-related hospital emergencies rose from 4,277 in 1982 to 9,946 in 1985, and then to more than 26,000 in 987.(26)
As if to mock the aggressive efforts of the War on Drugs, this rapid market growth occurred in the face of President Reagan's doubling and redoubling of the federal anti-drug enforcement budget from $645 million in fiscal year 1981 to over $4 billion in fiscal year 1987.(27) Resources specifically devoted to interdiction rose from $399 million to $ 1.3 billion, one third of the current budget; and military assistance rose from $5 million to $405 million,(28) including the provision of (the services of) Air Force AWAC'S and Navy E-2C radar planes; Army Black Hawk helicopters used in Customs pursuit missions; and the Customs Service's own purchases of P-3 radar planes, Citation jet interceptors, and Blue Thunder interceptor boats. DEA personnel rose from 1,940 in 1981 to 2,875 special agents in 1988, with more on request for 1989, along with a 47-position air wing for DEA.
This budgetary expansion seems all the more remarkable when compared to the 1969 anti-drug budget of $73.5 million.(29) Commenting specifically upon the interdiction budget, the Office of Technology Assessment concluded:
Despite a doubling of Federal expenditures on interdiction over the past five years, the quantity of drugs smuggled into the United States is greater than ever.... There is no clear correlation between the level of expenditures or effort devoted to interdiction and the long- term availability of illegally-imported drugs in the domestic market.(30)
The social 'return' on the extra billions spent during that time has been a drug abuse problem of historic magnitude, accompanied by a drug trafficking parasite of international dimensions.
This latter point is crucial. It is not simply that the War on Drugs has failed to work; it has in many respects made things worse. It has spun a spider's web of black market pathologies, including roughly 25 percent of all urban homicides, widespread corruption of police and other public officials, street crime by addicts, and subversive 'narcoterrorist' alliances between Latin American guerrillas and drug traffickers.(31) In the streets of the nation's major cities, violent gangs of young drug thugs engage in turf wars and open shoot-outs with automatic rifles.(32) Innocent bystanders are often shot. Corruption pervades local police departments and foreign governments. Some Latin American and Caribbean nations have been effectively captured by drug traffickers.(33 ) Where capture is incomplete, intimidation reigns: one third of the Clombian supreme court was assassinated in a (suspected) narco-terrorist raid. An estimated 60 Colombian justices have been murdered in a recent five-year period.(34)
Of course, these pathologies were foreseeable. They are a function of money. Drug law yields to a higher law: the law of the marketplace, the law of supply and demand. The naive attack on the drug supply through an aggressive program of enforcement at each step -- interdiction, arrest, prosecution, and punishment -- results in what Stanford Law School Professor Herbert Packer has called a "crime tariff'.(35) The crime tariff is what the seller must charge the buyer in order to monetize the risk he takes in breaking the law. It is in short a premium for taking risks. The criminal law thereby maintains hyper-inflated prices for illegal drugs in the black market.
For example, an ounce of pure pharmaceutical cocaine at roughly $80, just under $3.00 per gram, becomes worth about $4,480 if sold in the black market at $80 per diluted gram (at 50% purity). The crime tariff is thus $4,400 per ounce. This type of law enforcement succeeds to some unknown extent in making drugs less available -- to the extent (probably slight) that demand is elastic or sensitive to price. But because the crime tariff is paid to lawbreakers rather than the Government, it pumps vast sums of money into the black market, more than $100 billion per year by government estimate.(36) The flow of these illegal billions through the underground economy finances or supplies the incentives for the pathologies described above: homicides, street crime, public corruption and international narcoterrorism. If these phenomena were properly costed out, one might well conclude that the War on Drugs makes a net negative contribution to the safety, well-being and national security interests of the American people.
Confronted by these threatening developments, both the public and the politicians predictably react in fear and anger. The specter of uncontrolled and seemingly uncontrollable drug abuse and black marketeering leads to frustrated reaction against the drug trade. The zeal to "turn the screw of the criminal machinery -- detection, prosecution, and punishment -- tighter and tighter"(37) leads directly to the adoption of repressive and punitive measures that aggrandize governmental powers at the expense of individual rights.
This reactive, almost reflexive growth of governmental power and the correlative squelching of personal liberty occur as two closely related, if not inseparable, phenomena: 1.the government's sustained attack, motivated by the perceived imperatives of drug enforcement, on traditional protections afforded to criminal defendants under the Bill of Rights, and 2.the gradual but perceptible rise of 'Big Brotherism' against the public at large in the form of drug testing, investigative detention, eavesdropping, surveillance, monitoring, and other intrusive enforcement methods.
It may be difficult for those not familiar with criminal law and procedure to understand the degree to which the War on Drugs has disempowered the criminal defendant, especially in drug cases. Perhaps by focusing on a few of the most important of the many restrictions that have been imposed, one may begin to appreciate the severity of the crackdown on the rights of those accused of crime.
First, let us consider pre-trial detention. It is important to understand that in the U.S. the law has always favored pre-trial release to reinforce the presumption of innocence and to allow a defendant to aid counsel in his defense. The Eighth Amendment to the United States Constitution prohibits excessive bail; and while the cases do not establish a 'right' to bail, the law has evolved as if there were a presumptive right to pre-trial release on bail (or other conditions) except in capital cases where "the proof is evident or the presumption great". This was changed radically by the Comprehensive Crime Control Act of 1984,(38) which not only authorized pre-trial detention but created a statutory _presumption_ in favor of it in any case in which, _inter alia_, the defendant is charged with a drug offense punishable by ten years or more in prison.(39) Although the presumption is rebuttable, in the first seven months under the act, the government won 704 motions for pre-trial detention while defendants won only 185.(40) Pre-trial detention is a severe blow to the morale of a defendant and to his ability to assist in the preparation of his defense.(41)
Another major erosion in the rights of defendants is the more permissive use of illegally seized evidence. Since 1914, the Fourth Amendment to the U.S. Constitution has been interpreted to exclude from use in court evidence obtained by federal law enforcement authorities in an illegal search and seizure.(42) Many states voluntarily adhered to that ruling, and in 1961 the remaining states were required to do so by the decision of the Supreme Court in _Mapp v. Ohio_.(43) But under the relentless pressure of drug prosecutions and the frequent attempts of Congress to repeal or restrict the exclusionary rule, the Courts have whittled away at the protections afforded to individual privacy.
Notwithstanding the independence of the judicial branch, the Courts have in effect joined the war on drugs. Most notably, the U.S. Supreme Court gave its approval to just about every challenged drug enforcement technique. For example, the Court upheld the power of drug agents to use the airport drug courier profile to stop, detain and question citizens without probable cause;(44) to subject a traveller's luggage to a sniffing examination by drug-detector dogs without probable cause;(45) to make warrantless searches of automobiles and closed containers therein;(46) to conduct surveillance of suspects by placing transmitters or beepers in containers in vehicles;(47) to search at will without cause ships in inland waterways;(48) and to obtain a search warrant based on an undisclosed informant's tip.(49) The Supreme Court also adopted a 'good-faith exception' to the exclusionary rule for evidence seized in searches made pursuant to defective warrants.(50) It authorized warrantless searches of open fields and barns adjacent to a residence.(51) It significantly enlarged the powers of police to stop, question, and detain drivers of vehicles on the highways on suspicion less than probable cause(52) or with no suspicion at all at fixed checkpoints or road blocks.(53) The Court also validated warrantless aerial surveillance, that is airplane overflights of private property,(54) the warrantless search of a motor home occupied as a residence,(55) and the warrantless search of the purse of a public school student.(56) In the realm of search and seizure, there is hardly a drug case that the government failed to win. Indeed, the Supreme Court in _Albernaz_ apparently placed its imprimatur on the turn-the-screw approach of the U.S. Congress. Thus, the crackdown mentality prevails not only in the political realm but, to use Madison's phrase, in "the least dangerous branch" as well.
One further example of the crackdown atmosphere prevailing in the U.S. comes from the Anti-Drug Abuse Act of 1986,(57) in which Congress not only created new crimes but added to the penalties which already existed. The effect of the Act is that drug crimes now rank among the most seriously punished offenses in the United States Criminal Code. For example, the Act provides mandatory minimum penalties of five and ten years in prison depending upon drug and weight involved; in the case of possession with intent to distribute five kilograms of cocaine, the penalty is a minimum of ten years up to a maximum of life imprisonment. Even as little as five grams of cocaine base require not less than five years in prison and a maximum of 40 years. In both cases, the range of penalties rises to a minimum of 20 years and a maximum of life if death or serious bodily injury results from the use of such substances. It should be emphasized that these penalties apply to _first-time_ drug offenders; those with a prior state or federal drug conviction must receive a _mandatory life term_ under these circumstances.
The fact that these penalties are so severe, more stringent in fact than sentences typically meted out to robbers or rapists,(58) illustrates one of the themes of this statement: people in the U.S. are so fearful and angry about their inability to contain drug trafficking that they are resorting to extremist, desperation measures. More than one public official has proposed simply shooting suspected drug-carrying planes out of the sky. The atmosphere is perhaps best conveyed by the judicial opinion of a respected federal judge in Miami who, in an order denying bail pending appeal, condemned drug dealers as "merchants of misery, destruction, and death" whose greed has wrought "hideous evil" and "unimaginable sorrow" upon the nation.
Their crimes, he wrote, are "unforgivable".(59) And if drug crimes are literally "unforgivable", traditional constitutional and statutory protections for individual rights can be discounted or discarded. One congressman in fact complained about the extent to which legal protections interfered with the prosecution of drug cases: "[I]n the War on Narcotics we have met the enemy and he is the U.S. code. I have never seen such a maze of laws and hangups..."(60) In that spirit, and in the spirit of the angry judge just quoted, the punitive measures I have described, along with dozens of others, such as forfeiture of defense attorney's fees,(61) have become 'logical' measures in an endless cycle of crackdowns and failures.
Perhaps if these repressive laws applied only to drug defendants, who could be dismissed as an alien 'them', few would care and fewer still would protest. But this kind of reactionary force cannot be contained, cannot apply only to those accused of drug crime. In fact, the tentacles of drug enforcement have already spread out to reach into the lives of ordinary people, not just to those involved in the drug underworld. These intrusions into the lives of civilian society take many forms. One of the most obvious is the rapid proliferation of mandatory drug testing of employees and job applicants in the U.S. Civil Service,(62) state and local civil services, and in the private sector as well. Some 40 percent of Fortune 500 companies now subject their applicants or employees to urinalysis.(63) Government surveillance is on the increase in the form of wiretaps and the maintenance of 1.5 million or more names in NADDIS, a drug investigative data bank. On a more prosaic level, the War on Drugs hampers the mobility of travellers, who are subjected to road blocks, detained for questioning at airports, and whose luggage can be diverted for sniffing by drug-detector dogs.
One of the latest repressive anti-drug initiatives to emerge from Washington is called 'zero tolerance', begun by the Customs Service on March 21st. It means, in a nutshell, punishing drug users to promote 'user accountability' and to reduce 'the demand side of the equation'. One manifestation of this policy occurs in the effort to promote federal criminal prosecution of persons found in possession of small amounts of drugs for which they formerly would have escaped prosecution or been referred to local authorities for prosecution. On March 30th, 1988 Attorney General Meese sent a memorandum to all United States Attorneys encouraging the selective prosecution of "middle and upper class users" in order to "send the message that there is no such thing as 'recreational' drug use..."
More widely known is the seizure and forfeiture of cars, planes, or boats of persons found in possession of even trace amounts of illegal drugs; these forfeited assets in effect impose massive fines far greater than would ordinarily be imposed upon a criminal conviction for drug possession; but as civil forfeiture is in _rem_, no conviction or prosecution is required at all.
Some examples: On April 30th, the Coast Guard boarded and seized the motor yacht _Ark Royal_, valued at $25 million, because 10 marijuana _seeds_ and two stems were found aboard. Public criticism prompted a return of the boat upon payment of $ 1,600 in fines and fees by the owner. The 52-foot _Mindy_ was impounded for a week because of cocaine dust in a rolled-up dollar bill. The $80 million oceanographic research vessel _Atlantis II_ was seized in San Diego whent he Coast Guard found 0.01 ounce of marijuana in a crewman's shaving kit. It was returned also. But a Michigan couple returning from a Canadian vacation lost the wife's 1987 Cougar when Customs agents found two marijuana cigarettes in the pocket of her husband. No charges were filed, but the car was kept by the government. In Key West, Florida, David Phelps, a shrimp fisherman, lost his 73-foot shrimper to the coast guard who found three grams of cannabis seeds and stems aboard. Under the law, the boat is forfeitable whether or not Phelps had any responsibility for the drugs. Three weeks later, the boat had not been returned. There are many other ways, too numerous to mention in this statement, that the War on Drugs has choked off civil liberties in the U.S.
In 1987, the United States celebrated the bicentennial of its Constitution. The framers of the Constitution were animated by the spirit of William Pitt's dictum that "unlimited power is apt to corrupt the minds of those who possess it."(64) They therefore created a constitutional structure in which governmental power was limited in the first instance and constrained in the second by the system of checks and balances. The Bill of Rights, the first 10 amendments to the Constitution, were added in 1791 to further secure personal freedom from governmental oppression.
The War on Drugs has substantially undermined the American tradition of limited
government and personal autonomy. Since the early 1980s, the prevailing attitude, both
within Government and in the broader society, has been that the crackdown on drugs is so
imperative that extraordinary measures are justified. The end has come to justify the
means. The result is that Americans have significantly less freedom than they did only
five or six years ago.
DEVELOPMENTS IN 1988: POLARIZATION
Election year politics continues to ratchet the War on Drugs machinery tighter and tighter. In June the Administration declared its goal of a "drug-free America".(65) During the month of April, the Senate voted 93 to 0 to adopt the Anti-Drug Abuse Act of 1988, creating a $2.6 billion special reserve fund for anti-drug programs over and above the regular annual budget of three-plus billion dollars. (As noted above, the regular budget represents a manifold increase in the level of funding that prevailed when the war on drugs was declared.) The frustration of Congress with drug-producing nations of Latin America, crystallized by the stalemate with General Noriega in Panama, has produced a number of controversial proposals involving the threat of sanctions(66) and the use of military force to destroy coca crops or to capture fugitives from U.S. drug charges. Secretary Carlucci's opposition to arrest powers for the military services may tone down the final bill, but an expanded military surveillance role seems likely. At the state level, the National Guard has already been deployed on anti-drug search and destroy missions.
The President on April 19th "call[ed] upon the House and Senate to vote promptly on my bill providing for capital punishment when a death results from drug dealing, and when a... law enforcement officer is murdered." In the latest piece of fundamentalist-style anti-drug zealotry, the House on September 22nd voted 375-30 to adopt capital punishment, for a drug exception to the exclusionary rule, to deny college student loans to anyone convicted of possessing drugs, to impose without trial up to $10,000 in "civil fines" for a person caught in possession of drugs, and to impose a mandatory five-year prison sentence on anyone convicted of possession of crack cocaine. Other "zero tolerance" style bills abound. A House Republican Task force has introduced a bill calling for confiscation of 25 percent of the adjusted gross income and net assets of anyone caught possessing illegal substances. It would also cut off federal highway funds to states that do not suspend drivers' licenses of persons convicted of using drugs.(67) As we get closer to the November election, one can predict with confidence that more of these proposals will surface and that their extremist nature will increase.
But at the same time there is movement in the opposite direction. Respected journalists and other opinion leaders have begun to break ranks with the War on Drugs, in some cases suggesting that it be abandoned altogether. Here are some notable examples. David Boaz, Vice President for public policy at libertarian-oriented Cato Institute, wrote an op-ed piece for the _New York Times_ (March 17th) "Let's Quit the Drug War". In it he denounced the war on drugs as "unwinnable" and destructive to other values such as civil liberties and advocated a "withdrawal" from the war. Edwin M. Yoder Jr. of the _Washington Post_ Writers Group called the war on drugs "dumb" and compared it to the prohibition of alcohol for "encouraging and enriching mobsters" (March 4th, 1988). On March 10th, 1988, Richard Cohen of the _Los Angeles Times_ Syndicate published a piece endorsing the idea of a plan for the government distribution of drugs in order to "recognize the drug problem is with us to stay -- a social and medical problem, but not necessarily a law-enforcement one. We've been making war on drugs long enough. It's time we started making sense instead." By May and June, articles of this type became a staple item in newspapers all over the country as editors hopped aboard the "legalization" bandwagon.
This sample of articles shows the emergence of a significant body of opinion opposed to the war on drugs. What is perhaps even more significant is that the opposition transcends the liberal/conservative split. Traditionally, conservatives have advocated strict law enforcement and liberals have been identified with a permissive approach to the drug issue. Now highly respected conservative spokesmen have also begun to dissent from the War on Drugs.
Even before the recent spate of articles described above, prominent conservative columnist William F . Buckley Jr. had reversed his position and advocated the legalization of drugs as the only effective course of governmental action. Nobel Prize-winning economist Milton Friedman has made public statements advocating more market-oriented approaches to the regulation of drugs. _National Review_, the most prominent organ of conservative opinion, through its editor Richard Vigilante, published a piece (December 5th, 1986) exposing the Anti Drug Abuse Act of 1986 as a manifestation of public panic and criticizing the intrusiveness of drug testing and other enforcement measures. He also rejected the war on drugs as intolerant and politically unwise: "Embracing the drug hysteria requires a rejection of essential conservative principles." In the same issue of NR is an article by Richard C. Cowan, entitled 'How the Narcs Created Crack', arguing as follows: "Any realistic approach to the drug problem must begin with the legalization of small scale cultivation and sale of marijuana so that it is separated from the other, more dangerous drugs.... We need not fear that if we stop the lying and hypocrisy, the American people are going to destroy themselves with drugs."
This debate has captured the attention of the mainstream media.(69) Clearly, the challenge to the monopoly status of the War on Drugs is gaining ground. Nothing approaching this level of dissent has been seen or heard since the War on Drugs started.
The dissent has also begun to spill over to the political sector. For example, the _ABA Journal_ (January l st, l 988) reported that the New York County Lawyers Association Committee on Law Reform published a report advocating the decriminalization of heroin, cocaine, and marijuana. New York State Senator Joseph L. Galiber, from a district in the drug-ravaged Bronx, introduced on April 18th a bill in the New York State legislature to decriminalize the possession, distribution, sale, and use of all forms of controlled substances under the aegis of a State-Controlled Substance Authority. At a speech at the National Conference of Mayors and again on a May 10th, 1988, broadcast of ABC's 'Nightline', the Mayor of Baltimore called for congressional hearings to study the issue. Other mayors and a few congressmen supported him. And, surprisingly, Congressman Charles Rangel, Chairman of the House Select Committee on Narcotics Abuse and Control, scheduled a one-day hearing for September 29th, 1988, clearly inadequate for the task at hand, yet perhaps a harbinger of the future. Even if nothing constructive can emerge amidst election year maneuvering, at least the genie of change is out of the bottle.
There are also pressures beginning to come from abroad. For example, the attorney general of Colombia said in a telephone interview with the _Miami Herald_ (February 23rd, 1988) that Colombia's battles against drug-trafficking rings have been a failure, calling them "useless". He suggested that legalizing the drug trade is something that the government "may have to consider" in the future. _The Economist_ magazine ran a cover story (April 2-8) called 'Getting Gangsters Out of Drugs', advocating the legalized and taxed distribution of controlled substances. It followed up with similar commentaries on May 21st and June 4th. _El Pais_, the most influential Spanish newspaper, also recommended "La legalizacion de la droga" in an editorial (May 22nd, 1988).What accounts for this trend? Negative experience with the War on Drugs certainly plays a role. In the _Structure of Scientific Revolutions_, Thomas S. Kuhn argued that "the process by which a new candidate for paradigm replaces its predecessors" occurs "only after persistent failure to solve a noteworthy puzzle has given rise to crisis" (pp.144-45). There is little doubt that the perception that the War on Drugs is a failure at controlling drug supply has spread significantly.
Uncritical acceptance of the War on Drugs is no longer possible. And the perception that it has negative side effects, breeding crime, violence and corruption, has spread even to the comic pages of the daily newspapers.(69) In a more serious vein, Ted Koppel's "Nightline" broadcast a special three-hour "National Town Forum" on the subject of legalization. Perhaps we have already reached Kuhn's stage of "persistent failure and crisis", in which the war on drugs has been dislodged as the only conceivable paradigm for the control of drugs in the U.S. What now should be done?
(1) My more recent publications are: 'Crackdown: The Emerging "Drug Exception" to the Bill of Rights', 38 _Hastings Law Journal_, 889 (1987); Wisotsky (ed.), 'The War on Drugs: In Search of a Breakthrough' (Symposium), 11 _Nova Law Journal_ 891 (1987); Wisotsky, 'The Ideology of Drug Testing,' 11 _Nova Law Journal_, 763 (1987)
(2) President's Radio Address to the Nation, 18 Weekly Comp. Pres. Doc. 1249 (October 2, 1982) [hereinafter Radio Address].
(3) President's Message Announcing Federal lnitiatives Against Drug Trafficking and Organized Crime, 18 Weekly Comp. Pres. Doc. 1311, 1313-14 (October 14th, 1982).
(4) _New York Times_, October 15th, 1982, p. A20
(5) E. Epstein, _Agency of Fear_ , pp. 173, 179 (1977) Nixon consolidated agencies and created DEA as the lead agency in drug enforcement.
(6) Gonzales, 'The War on Drugs: A Special Report', _Playboy_, April 1982, p. 134.
(7) House Select Committee on Narcotics Abuse and Control, H.R. Rep. No. 418, pp. 1-2, 97th Cong., 2d Sess. 50 (1982).
(8) Attorney General's Task Force on Violent Crime, Final Report 28 (1981).
(9) The call for the buildup in the size and scope of the federal drug enforcement bureaucracy also occurred under the Nixon Administration. At the end of June 1968, the Bureau of Narcoucs and Dangerous Drugs had 615 agents. By June 1970, this number had increased to over 900, with authorization for at least 300 more agents during 1971. See H.R. Rep. No. 1444, 91st Cong., 2d Sess. 18 reprinted in 1970 U.S. Code Cong. & Admin. News 4566, 4584.
(10) See 28 C.F.R. [Sections] 0.85(a), 0.102 (1986). Authority for federal drug law enforcement is distributed among several agencies, including the DEA, the Customs Service, the Coast Guard, the FBI, and the IRS. Supporting roles are played by the Immigration and Naturalization Service, the CIA, and the Department of Defense. See National Drug Enforcement Policy Board, _National and International Drug Law Enforcement Strategy_ (January 1987).
(11) See 'Organized Crime Drug Enforcement Task Forces: Goals and Objectives', 11 _Drug Enforcement_, 6 (1984); Maitland, 'President Gives Plan to Combat Drug Networks', _New York Times_, October 15th, 1982 [section] A, p. 1.
(12) See Gibson, 'Anti-Smuggling System Would Have CIA Links', _Ft. Lauderdale News & Sun-Sentinel_, June 18th, 1983, [Section] A, p. 1. See also Office of Technology Assessment, U.S. Congress, 'The Border War on Drugs', pp. 33-39 (1987) [hereinafter 'Border War'].
(13) See Coates and DeLama, 'Satellite Spying on Narcotics Operations Is a Promising Tool for Drug Task Force', _Miami Herald_, June 23rd, 1983, p. 11A.
(14) For a description of Operation Greenback, the prototype money-laundering investigation, see Financial Investigation of Drug Trafficking: Hearing Before the House Select Comm. on Narcotics Abuse and Control, 97th Cong., 1st Sess. 65 (1981).
(15) See International Narcotics Control: Hearings Before the House Committee on Foreign Affairs,97th Cong., 2d Sess. 156 (1982), International Narcotics Trafficking: Hearings Before the Permanent Subcomm. on Investigations of the Senate Comm. on Governmental Affairs, 97th Cong., Ist Sess 201-02 (1981).
(16) See President's Commission on Organized Crime, 'America's Habit: Drug Abuse, Drug Trafficking and Organized Crime', pp. 412-419 (1986).
(17) Starita, 'Radar Planes to Hunt Drugs in S. Florida', _Miami Herald_, March 13th, 1982, p. 1B.
(18) Congress has likened the drug smugglers to an invading army, complete with generals, soldiers, and an armada that operates over the unpatrolled coastline and unmonitored airspace of the United States . See Note, 'Fourth Amendment and Posse Comitatus Act Restrictions on Military Involvement in Federal Law Enforcement', 54 Geo. Wash. L. Rev. 404, 417 & nn 140-42 (1986).
(19) Stein, 'Naval Task Force Enlists in Drug War', _Miami Herald_, August 24th, 1983, p. 13A. Balmaseda, 'Navy Bullets Riddle Pot-Smuggling Ship', _Miami Herald_, July 17th, 1983, p.1A
(20) National Drug Policy Board, 'Federal Drug Enforcement Progress Report, 1986' Exhibit II-2, pp. 19-20 [hereinafter "Progress Report"].
(21) Id., Exhibit II-11, p. 35.
(22) Id., Exhibit III-1, pp. 74-78.
(23) Data on price, purity and supply are taken from the annual reports of the National Narcotics Intelligence Consumers Committee called 'The Supply of Illicit Drugs to the U.S. from Foreign and Domestic Sources'.
(24) 'Progress Report', p. 7.
(25) Id., p. 5.
(26) Id., p. 6. 1987 data from 1987 NNIC Report.
(27) Congressional Research Service, Library of Congress, 'Drug Abuse Prevention and Control: Budget Authority for Federal Programs', FY 1986 - FY 1988 [IP 334D] (February 27th, 1987). The budget dropped to 3 plus billion in FY 88.
(28) Leen, 'Drug War Proving a Costly Failure', _Miami Herald_, September 11th, 1988, p. 18A.
(29) Select Committee on Narcotics Abuse and Control, 95th Cong., 2d Sess., Congressional Resource Guide to the Federal Effort on Narcotics Abuse and Control 250 (Comm. Print 1976).
(30) 'Border War', p. 3.
(31) These phenomena are described in some detail in _Breaking the Imparse in the War on Drugs_ Chs. 7-9.
(34) See Bin, 'Drug Lords and the Colombian Judiciary: A Story of Threats, Bribes and Bullets',5 _Pacific Basin Law Journal_, p. 178 (1986).
(35) Packer, _The Limits of the Criminal Sanction_, pp. 277-282 (1968).
(36) House Select Committee on Narcotics Abuse and Control Annual Report for the Year 1984 H.R. Rep. No. 1199, 98th Cong., 2d Sess. 9 (1985).
(37) _Albernaz v. United States_, 450 U.S. 333, 343 (1981).
(38) Pub. L. No. 98-473, Tit. II, ch. 1, [section] 203(a), 98 Stat. 1976 (1984) (codified at 18 U.S.C. [section] 3142) (Supp. 1986).
(39) 18 U.S.C. [section] 3142(e) (Supp. 1986).
(40) Kennedy, 'Foreword to Symposium on the Crime Control Act of 1984', 22 Am. Crim. L. Rev.vi,viii n.4(1985).
(41) Wald, 'Pretrial Detention and Ultimate Freedom: A Statistical Study', 39 N.Y.U. L. Rev. 631 (1964).
(42) _Weeks v. UnitedStates_, 232 U.S. 383 (1914).
(43) 367 U.S. 643 (1961).
(44) _Florida v. Royer_, 460 U.S. 491, 493 (1983); see also _UnitedStates v. Montoya_, 473 U.S. 531 (1985); _Florida v. Rodriguez_, 469 U.S. 1, 5 (1984). Drug courier profiles are based on an informal compilation of traits commonly associated with drug smugglers; they have been criticized for allowing impermissible intrusions on fourth amendment rights based solely on an agent's 'hunch'. See Note, 'Drug Courier Profiles in Airport Stops', 14 S.U.L. Rev. 315, 316- 317 & n. 23 ( 1984). For further criticisms, see Note, 'Search and Seizure: Defining the Outer Boundaries of the Drug Courier Profile', 17 _Creighton Law Review_ 973 (1985).
(45) _United States v. Plase_, 462 U.S. 696, 706 (1983).
(46) _United States v. Ross_, 456 U.S. 798, 821 (1982); see also _Colorado v. Bertine_, 107 S.Ct. 738 (1987).
(47) _United States v. Knotts_, 460 U.S. 276, 282 (1983).
(48) _United States v. Villamonte-Marquez_, 462 U.S. 579 593 (1983)
(49) _Illinois v. Gates_, 462 U.S. 213 (1983). Gates replaced the principles of probable cause established in _Aguilar v. Texas_, 378 U.S. 108 (1964) and _Spinelli v. United States_, 393 U.S. 410 (1969) with a more loosely structured 'totality of the circumstances' test. _Gates_, 462 U.S. at 230.
(50) _United States v. Leon_, 468 U.S. 897, 905 (1984). To similar effect are _Illinois v. Krull_, 107 S.Ct. 1160 (1987), and _Maryland v. Garrison_, 107 S.Ct. 1013 (1987). For criticism of the good faith exception, see I W. LaFave, _Search and Seizure: A Treatise on the Fourth Amendment_ [section] 1.3(c)-(d), at 51, 58-59 (1987) (arguing that the _Leon_ Court overestimated the costs of adherence to the exclusionary rule based on "intuition, hunches, and occasional pieces of partial and often inconclusive data").
(51) _United States v. Dunn_, 107 S.C. 1134 (1987) (barn); _Oliver v. United States_, 466 U.S. 170 (1984) (open fields).
(52) _United States v. Sharpe_, 470 U.S. 675 (1985).
(53) _Texas v. Brown_, 460 U.S. 730 (1983).
(54) _California v. Ciraolo_, 106 S.Ct. 1809, 1813 (1986)
(55) _California v. Carney_, 471 U.S. 386, 390 (1985).
(56) _New Jersey v. T.L.O._, 469 U.S. 325, 333 (1985).
(57) Pub. L. No. 99-750, reprinted in 1986 U.S. Code Cong. & Admin. News (No. 10A) (codified as amended in scattered sections of U.S.C.).
(53) A not untypical example comes from a prominent 1988 news story. Larry Singleton had been convicted of raping a teenager and hacking off the arms of a teenager between wrist and elbow. He was convicted in California and given the maximum sentence of 14 years and served 8. In Florida, a person convicted of possession of 400 grams of cocaine or other similar drug trafficking offense would receive a non-parolable mandatory term of 15 years. With typical gain time and work credits, he might serve approximately 7 years in prison.
(59) _United States v. Miranda_, 442 F. Supp. 786, 795 (S.D. Fla. 1977).
(60) Financial Investigation of Drug Trafficking: Hearings Before the House Select Comm. on Narcotics Abuse and Control, 97th Cong., 1st Sess. 58 (1981) (statement of Congressman Hutto).
(61) _United States v. Caplin & Drysdale_, 814 F.2d 905 (4th Cir. 1987).
(62) President's Message Announcing the Goals and Objectives of the National Campaign Against Drug Abuse, 22 Weekly Comp.Pres. Doc. 1040, 1041 (August 4th, 1986).
(63) General Dynamics, General Motors, Greyhound, E.F. Hutton, IBM, Mobil, The New York Times, The Teamsters, and United Auto Workers are but a few of the enterprises that have recently instituted some type of workplace drug testing. Ross, 'Drug Testing at Work Spreading‹and Likely to Spread Further', _LA Daily Journal_, June 6th, 1985, p. 4. See generally, 'Testing for Drugs in the American Workplace', 11 _Nova Law Review_ 291 (1987); Wisotsky, 'The Ideology of Drug Testing', 11 _Nova Law Journal_ 763 (1987).
One rationale for requiring that urinalysis be predicated upon individual suspicion is the not-unlikely possibility of a false positive result: "Two Navy doctors were almost drummed out of the service [in 1984] because they tested positive for morphine, the result of having eaten too many poppy seed bagels. Indeed, the Navy program has seen huge errors‹over 4,000 men and women were recalled at full back pay [in 1985] because they were discharged on the basis of a [false positive]." (Ross, _supra_.)
(64) Speech, Case of Wilkes January 19th, 1770).
(65) National Drug Policy Board, 'Toward a Drug Free America' (1988).
(66) 1n February, the House Foreign Affairs Committee Task Force on International Narcotics Control demanded that the State Department impose sanctions against Colombia, Peru, Bolivia and other nations in order to force them to intensify their drug enforcement efforts.
(67) 'The Drug Enforcement Report', June 23rd, 1988, p.2.
(69) _Time_ magazine ran a cover story on the debate called 'Thinking the Unthinkable' (May 30th, 1988). _Newsweek_ did a similar piece. The _New York Times_ and the _Miami Herald_ both ran front page stories on the same subject in May.
(69) The syndicated strip 'Bloom County', for example, satirized the issue on at least two separate occaslons. The April 18th, 1988, strip portrayed a scenario in which a lobbyist for smugglers makes contnbutions to anti-drug candidates for political office as a way to keep drug prices high. "Nothing makes us madder than some liberal talking drug legalization."
TOWARD A NEW BEGINNING IN DRUG CONTROL
One historically tested model of exploring policy reform is the appointment of a
National Study Commission of experts, politicians and lay leaders to make findings of
fact, canvass a full range of policy options, and recommend further research where needed.
The precedent set by the National Commission on Marijuana and Drug Abuse in the early
1970s offers a model that might usefully be emulated in many respects. At the very least,
a National Commission performs a vital educational function: its public hearings and
attendant media coverage inform the public, bringing to their attention vital facts and a
broader array of policy options. The level of public discourse is almost certain to be
elevated. Only those who prefer ignorance to knowledge could possibly oppose the
commission process.What should be the agenda of such a commission? Its over-riding goal
should be to develop policies directed toward the objectives of 1.reducing drug abuse and
2.reducing the black-market pathologies resulting from the billions in drug money
generated by drug law enforcement. In pursuit of these dual goals, the commission's study
might benefit from adherence to the following five points:
I. DEFINE THE DRUG PROBLEM
What exactly is the problem regarding drugs in the U.S.? The absence of an agreed-upon answer to this question is one of the primary sources of incoherence in present law and policy. People now speak of "the drug problem" in referring to at least five very different phenomena: 1. the mere use of any illegal drugs; 2. especially by teenagers; 3. the abuse of illegal drugs; 4. drug-induced misbehavior that endangers or harms others, such as driving while impaired; and 5. drug-trafficking phenomena (crime, violence, and corruption) arising from the vast sums of money generated in the black market in drugs.
This confusion in the very statement of the problem necessarily engenders confusion in solving it. The "drug problem" as Edward Brecher reminds us in his classic _Licit and Illicit Drugs_ is itself a problem. Therefore, it does not and cannot lead to the formulation of useful solutions. It would be a real breakthrough if the Congress or the next President would generate a meaningful statement of the "drug problem".
Otherwise, we are condemned to confirm the truth of Eric Sevareid's quip that the chief cause of problems is solutions.
II. STATE YOUR GOALS
A creative definition or redefinition of the drug problem would of itself carry us toward a (re)statement of goals. Rational policy-making is impossible without a clear articulation of the goals sought to be achieved. Part of that impossibility arises from the inconsistency between, for example, pursuit of existing goal number one by an attack on the drug supply and pursuit of goal number five, the suppression of drug money.
Pursuit of the first creates a crime tariff which makes the pursuit of the last more or
less impossible. Instead, the result of drug enforcement is a black market estimated by
the government to be over $100 billion per year, money that funds or gives rise to
homicidal violence, street corruption by addicts, corruption of public officials and
international narco-terrorism. It is therefore essential to distinguish between problems
arising from drugs and problems arising from drug money. For example, how much criminality
is attributable not to the psychopharmacology of drugs but to the excessive prices
intentionally caused by the prohibition of drugs? Rational policy-makers have to
distinguish between the two and acknowledge the trade-offs between the two lines of
attack.
III. SET REALISTIC AND PRINCIPLED PRIORITIES BASED ON TRUTH
The suppression of drugs as an end to itself is frequently justified by arguments that drugs cause addiction, injury, and even death in the short or long run. Granted that all drug use has the potential for harm, it is clear beyond any rational argument that most drug use does not cause such harm. DEA Director John Lawn to the contrary ("Drugs are illegal because they are bad"), drugs are not harmful _per se_. Exposure to drugs is not the same as exposure to radioactive waste.(70)
Rather, the overwhelming majority of incidents of drug use are without lasting personal or social consequence, just as the overwhelming majority of drinking causes no harm to the drinker or to society. Accepting the truth of that premise means that not all drug use need be addressed by the criminal law, and that society might actually benefit from a policy of benign neglect respecting some forms of drug use. I have in mind the Dutch model, where nothing is legal but some things are simply ignored, cannabis in particular. NORML estimates that there are approximately one half-million arrests per year for marijuana, almost all for simple possession or petty sale offenses. Depending upon the age of consent chosen, most of these arrests could be eliminated from the criminal justice system, thereby achieving a massive freeing of resources for the policing of real crime.
Because we live in a world of limited resources, it is not possible to do everything. It is therefore both logical and necessary to make distinctions among things that are more or less important. I have in mind at least five basic dichotomies:
1. drug use by children (top priority) versus drug use by adults (low priority);
2. marijuana smoking (low priority) versus use of harder drugs (higher priority);
3. public use of drugs (high priority) versus private use of drugs at home (low priority);
4. drug consumption (no priority) versus drug impairment (high priority);
5. occasional use (low priority) versus chronic or dependent use (higher priority).
From these general criteria for drug policy, I would commend to the National Commission five specific goals for an effective, principled drug policy:
1._Protect the Children_. I think this priority is self-evident and needs no discussion. I would simply add that this is the only domain in which "zero tolerance" makes any sense at all and might even be feasible if enforcement resources were concentrated on this as a top priority.
2._Get Tough on the Legal Drugs_. It is common knowledge that alcohol (100,000 annual deaths) and tobacco (360,000 annual deaths) far exceed the illegal drugs as sources of death, disease, and dysfunction in the U.S. Everyone knows that alcohol and tobacco are big business -- the advertising budget alone for alcohol runs about $2 billion a year -- and, what is worse, the states and federal government are in complicity with the sellers of these deadly drugs by virtue of the billions in tax revenues that they reap.
I am not, however, suggesting prohibition of these drugs. That is wrong in principle and impossible in practice, as experience teaches. Nonetheless, there are more restrictive measure that can and should be undertaken. One is to get rid of cigarette vending machines so that cigarettes are not so readily available to minors. A second is to require or recommend to the states and localities more restrictive hours of sale. A third is to levy taxes on these products that are consistent with their social costs -- billions of dollars in property damage, disease, and lost productivity.(71) Those costs should be financed largely by the sale of these products; at present prices, society is clearly subsidizing those products by providing police, fire, ambulance services for road accidents; medicare and medicaid reimbursement for therapy, surgery, prosthesis or other medical care; and many other hidden costs effectively externalized by the industries from smoker and drinker to society as a whole.
Precise numbers need to be derived from studies, but I wouldn't be surprised to find cigarettes at, say, $10 a pack and hard liquor at, say, $30-$50 a bottle to be priced more consistently with their true social costs. Such taxes would have the additional salutary effect of reducing the consumption of these dangerous products to the extent that their demand is elastic.
3. _Public Safety and Order_. Here we need policies directed toward protection of the public from accident and injury on the highway, in the workplace and from unruly disruptions in public streets, public transport, parks and other gathering places. Programs specifically tailored to accomplish this more focused goal make a lot more sense than futile and counter productive "zero tolerance" approaches. Street-level law enforcement practices need to be reviewed to see to what extent they may actually encourage hustling drugs in the street to avoid arrests and forfeitures that might follow from fixed points of sale. Promotion of driving and workplace safety require more knowledge. Nothing should be assumed. Drug use, as the Air Force's and Freud's examples show, does not automatically mean that a pilot or driver is impaired. Even with marijuana there is ambiguous evidence as to its effect on motor co-ordination.(72) Responsible research is required.
4. _Protect Public Health_. The emphasis here is on the word "public". Policy should be directed toward 1. treatment of addicts on a voluntary basis and 2. true epidemiological concerns such as the use of drugs by pregnant women and the potential for transmission of AIDS by I.V. drug users. Addiction treatment is now shamefully underfunded, with months-long waiting lists in many cities. Purely individualized risks are not in principle a public health matter and are in any case trivial in magnitude compared to those now accepted from alcohol and tobacco. Judge Young found no known lethal dose of marijuana. Even with cocaine, which has lethal potential, less than 2,000 deaths per year result even though billions of lines or puffs of cocaine are consumed every year. (Other long-term harms may result but are not systematically known at this time.)
In any event, harmfulness is not the sole touchstone of regulation; the requirements of goal number five, listed below, demand considerable deference to individual choice in this domain.
5. _Respect the Value of Individual Liberty and Responsibility_. The current administration's goal of a drug-free America, except for children, is both ridiculous -- as absurd as a liquor-free America -- and wrong in principle. This is not fundamentalist Ayatollah Land after all. A democratic society must respect the decisions made by its adult citizens, even those perceived to be foolish or risky. After all, is it different in principle to protect the right of gun ownership, which produces some ten to twelve thousand homicides per year and thousands more non-fatal injuries? Is it different in principle to protect the right of motorcyclists, skydivers or mountain climbers to risk their lives? Is it different to permit children to ride bicycles which "cause" tens of thousands of crippling injuries and deaths per year? To say that something is "dangerous" does not automatically supply a reason to outlaw it. Indeed, the general presumption in our society is that competent adults, with access to necessary information, are entitled to take risks of this kind as part of the right to life, liberty, and the pursuit of happiness.
Why are drugs different? It would be truly totalitarian if the government could decide
these matters. After all, if the government is conceded to have the power to prohibit what
is dangerous, does it not then have the power to compel what is safe? More specifically,
if one drug can be prohibited on the ground that it is dangerous to the individual, would
it then not be permissible for the government to degree that beneficial doses of some
other drug must be taken at specified intervals.The freedom of American citizens has
already been seriously eroded by the War on Drugs.(73) More civil liberties hang in the
balance of the 1988 Omnibus Anti-Drug Abuse Act pending in Congress and further
legislation in years to come. Is the defense of Americans from drugs to be analogized to
the defense of the Vietnamese from Communism, that it was necessary to destroy the city of
Hue in order to save it? The National Commission should give serious weight to this value
in its policy recommendation.
IV. FOCUS ON THE BIG PICTURE
Present drug policy suffers from a kind of micro-think that borders on irresponsibility and is sometimes downright silly. This typically manifests itself in proud administration announcements or reports to congressional committees of a new initiative or new accomplishment without regard to its impact on the bottom line. The examples are endless -- a joint strike force with the government of the Bahamas; shutdown of a source of supply; the Pizza Connection case, the largest organized crime heroin trafficking case ever made by the federal government; a new bank secrecy agreement with the Caymans; a new coca eradication program in Bolivia or Peru, and so on. But none of these programs or "accomplishments" has ever made any noticeable or lasting impact on the drug supply. Even now, as the Godfather of Bolivian cocaine resides in a Bolivian prison, is there any observable reduction in the supply of cocaine?
The lack of insistence that enforcement programs should make a difference in the real world produces fatuous reports like this 1979 report by GAO to the Congress: "Gains made in Controlling Illegal Drugs, Yet The Drug Trade Flourishes."(74)
In what sense is it meaningful to say that gains are made if the bottom line grows worse and worse? This is reprehensible doubletalk or Newspeak that should not be tolerated by responsible public officials. The whole drug enforcement enterprise needs to be put on a more businesslike basis, looking to the bottom line and not to isolated "achievements" of the war on drugs. In fact, the investor analogy is a good one to use: if the war on drugs were incorporated as a business enterprise, with its profits to be determined by its success in controlling drug abuse and drug trafficking, who would invest in it? Even if its operating budget were to be doubled to $6 billion per year, or doubled again to $12 billion per year, would it be a good personal investment? If not, why is it a good social investment?
This kind of hard-headed thinking is exactly what is lacking and has been lacking throughout the War on Drugs. No attention has been paid to considerations of cause and effect, or to trade-offs, or to cost-benefit analysis. New anti-drug initiatives are not subjected to critical questioning: what marginal gains, if any, can be projected from new programs or an additional commitment of resources? Conversely, how might things worsen? For example, many law enforcement officials believe that the coast guard's "successful" interdiction of marijuana coming from Jamaica and Colombia in the early 1980s had two negative side-effects: the substitution of domestic cultivation of more potent marijuana in California (and throughout the U.S.) and the diversion of smugglers into more compact and more readily concealable cocaine. Was that interdiction initiative therefore truly successful? Weren't those side-effects reasonably foreseeable? There are other examples.
Drug gangs are probably far more ruthlessly violent today than in the 1970s because they have learned to adapt to aggressive law-enforcement methods. The friendly governments of Colombia, Peru, Bolivia are far weaker today, far more corrupt, and far more subject to narco-terrorist subversion because of similar adaptations there by the drug cartel and its associates. Has our national security been thus advanced by the War on Drugs?
For these reasons, it is important to abjure meaningless, isolated "victories" in the war on drugs and to focus on whether a program or policy offers some meaningful overall impact on the safety, security and well-being of the American people. In this respect, does it really matter that the DEA has doubled the number of drug arrests from 6,000 to 12,000 during the 1980s?
Or that the Customs Service has dramatically increased its drug seizures to over 100,000 pounds of cocaine? Or that kingpins like Carlos Lehder Rivas have been convicted and imprisoned for life plus 135 years? Might it not be that the resources devoted to those anti-drug initiatives were not merely wasted but actually counterproductive?
Similarly, it is critical to pay scrupulous attention to cause and effect. Throughout the war on drugs, administration officials have been making absurd claims about the effects of anti-drug policies. Recently President Reagan asserted that the War on Drugs is working. His evidence? Marijuana smoking is down to 18 million per year and experimentation with cocaine by high school seniors in the University of Michigan survey declined by 20 percent. Everyone trained in logic knows that this is the fallacy of _post hoc ergo propter hoc_. But one need not be trained in logic to realize that there is no provable correlation between law enforcement initiatives and levels of drug consumption. Indeed, the same University of Michigan survey shows that marijuana consumption peaked in 1979, three years before the War on Drugs even began. Cocaine is purer, cheaper, and more available than ever before. If use is down, it is not because of successful law enforcement. Most categories of drug use are down and will most likely continue to go down as people become more educated and more concerned about health and fitness, fueled in some immeasurable degree by media reports of celebrity overdose deaths such as those of David Kennedy, John Belushi, Len Bias, and Don Rogers.(75)
Another important factor is the aging of the baby boom generation. That demographic bulge leaves fewer young people behind and thus contributes to the aging of the population as a whole. An older population is simply one that is less likely to use cocaine, marijuana, and heroin.To attribute these changes to law enforcement levels is at the least unprofessional. The liberalization of marijuana laws in California, Oregon, Maine, and elsewhere in the early 1970s produced no observable rise in consumption (either new users or increased frequency) of marijuana compared to other states.(76)
The connection between law and individual behavior at this level is remote. Government policies are no more responsible for the current decline in drug use than they were for the boom in the 1970s and early 1980s. Drug use will almost certainly decline in the 1990s, no matter what law enforcement does, for roughly the same reasons that cigarette smoking has declined dramatically without any change in the law.
V. SUBSTITUTE STUDY FOR SPECULATION
The War on Drugs has produced a siege mentality. Senators from large states speak of invasions and national security threats. Even professionals who should know better succumb to anti-drug hysteria. A former director of the National Institute of Drug Abuse claimed that without the War on Drugs to restrain the people, we would have 60-100,000,000 users of cocaine in this country.(77) Now this is extremely unlikely; because of the stimulant nature of the drug, it appeals mostly to younger people, the population is aging, there is already a downward trend in cocaine except for crack, and so forth. But rather than trading assertion and counter-assertion, the real question is epistemological: How does the Director know what he 'knows'?
Clearly, there is no empirical basis for his claim. It must therefore be an expression of fear or perhaps political maneuver, but clearly something other than a statement of fact. Why would the Director of the public agency most responsible for informing the public on drugs take that tack? Whatever his reasons, wild speculation is not the path to informed judgment and intelligent, workable policy. Why not truly confront the question of what less restricted availability of cocaine would mean in terms of increased drug use, taking account of both prevalence and incidence.(78)
There are a number of ways in which this might be done if we truly want to know the answers. One way is market research. A standard technique of market research is to conduct surveys and ask people about what they desire in a product in terms of price, quality, and other features. How much w ill they buy at various prices? The same techniques are adaptable, _mutatis mutandis_, to illegal drugs.
What about the effects of the drug? Is it addictive? Longitudinal studies of the kind pioneered by Ronald Siegel of UCLA should be encouraged.(79) NIDA Household Surveys register only gross numbers and do not track users. (They do not even cover group quarters, such as college dormitories and military barracks, where drug use may be higher than average.) At the present time we have almost no real-world knowledge of the experience of past and present cocaine users, except those unrepresentative few who come forward as former or recovering addicts. Even NIDA has conceded that we lack any estimate of the relative proportions of addictive use versus experimental or other non-consequential use in the total population of cocaine users.(80) Isn't that critical information in regulating the drug?
(Drug users should be systematically interviewed, but they will be loath to step forward in the current climate of repression.)
Useful experiments might also be performed using volunteers from the prison population
(for instance, those serving life sentences without parole) and perhaps volunteers from
the military services. How would men behave and how would their health fare with abundant
access to cocaine? Would it be used widely or intensively or both? Finally, comparative
studies from countries such as Holland can tell us a great deal about the effects of more
freely available cannabis and heroin, although not so with respect to cocaine. We have a
lot to learn from the Dutch.
CONCLUSION
I endorse a substantial measure of relaxation of drug laws in some respects simultaneously with a substantial measure of intensification in other respects: the enforcement of laws to protect children, along with more stringent laws regarding the sale of liquor and tobacco. As to the first point, some measure of relaxation of drug laws is both correct in principle and pragmatically necessary in the real world of limited resources. But this is not a 'surrender' in the War on Drugs. There is a paradox here: that the use of less force may actually result in producing more control over the drug situation in this country.
Consider the analogy of a panic stop in an automobile. In a typical scenario, a driver observes a sudden obstruction in his path and slams on the brakes in order to avoid a collision. If he uses too much force on the pedal, the sudden forward weight transfer will very likely induce front-wheel lockup. At that point, the car starts skidding out of control. If the driver turns the wheel left or right, the car will simply keep on skidding forward toward the very obstacle that he is trying to avoid. In this moment of panic, the 'logical' or instinctive thing to do is to stomp the brake pedal even harder. But that is absolutely wrong. The correct thing to do to stop the skid is to modulate the brake pedal, releasing it just enough to permit the front wheels to begin rolling again so that steering control is restored.
Thus, the correct and safe response is counterintuitive, while the instinctive response
sends the driver skidding toward disaster. I leave it to the Committee to decide whether
this has any relevance in the re-making of drug policy.
(70) Truth-based legislation will also have to acknowledge that 'recreational' drugs
also have beneficial uses, most notably medicinal ones. Respectable authorities in the
U.S. and abroad endorse heroin for pain relief for terminally ill patients. Francis Young,
the chief administrative law judge of the DEA, recommended this summer that marijuana be
re-classified to permit doctors to prescribe it for relief of nausea from chemotherapy and
for other purposes. His opinion concludes that marijuana is "far safer than many
foods we commonly consume." and that its medical benefits are "clear beyond any
question". Judge Young had previously recommended that MDMA ("ecstasy") be
removed from Schedule I and be made legally available to psychiatrists for use in treating
their patients.Medical uses are not the only beneficial effects of drugs. An AP wire from
Frankfurt reported that the U.S. Air Force allows its pilots to take Dexedrine "so
that they are able to fly when they haven't gotten enough sleep or don't feel fit
enough." Hundreds of thousands of 'drug abusers' similarly stimulate themselves with
amphetamines and cocaine. Over a century ago, Sigmund Freud discovered in self-experiments
that moderate doses (one tenth of a gram) of cocaine improved his muscular strength and
reaction time. See Blyck, _Cocaine Papers: Sigmund Freud_ (New York: New American Library,
1974), pp. 98, 103.
(71) The Research Triangle Institute estimated the annual costs of alcohol abuse to society at $116 billion in 1983. Conference Board, 'Corporate Strategies for Controlling Substance Abuse' 13 (Axel, ed., 1986). With 1,000 daily deaths from lung cancer and other diseases often preceded by years of medical treatment, there must be billions more in social costs attributable to tobacco.
(72) See Knepper, 'Puff the Dangerous Drug', _Car and Driver_, June 1980, p.43.
(73) See Wisotsky, 'Crackdown: The Emerging "Drug Exception" to the Bill of Rights', 38 _Hastings Law Journal_ 889 (1987).
(74) GGD-80-4 (October 25th, 1979).
(75) About the only category of drug use that appears to be up is crack, and even that may be confined in large part to urban ghettos. See the _New York Times_, July 10th, 1988. The overall decline, of course, is a positive development so long as it is not offset by a corresponding rise in other drug use, such as alcohol or tobacco, or suicide or other forms of health-endangering behavior. In this regard, the National Commission should fund research directed toward the development of some meaningful index of health and well-being by somehow combining total morbidity/mortality date from all major causes. It would be a true Big Picture accomplishment if we could somehow confirm that specified demographic segments were not only using drugs less but were also happier and healthier.
(76) Maloff, 'A Review of the Effects of the Decriminalization of Marijuana', _Contemporary Drug Problems_, p.132 (Fall, 1981).
(77) Brinkley, 'The War on Narcotics: Can It Be Won?', _New York Times_, September 14th, 1984.
(78) To speak of a rise or fall in drug use is simplistic. It is important to distinguish between prevalence (the number of users) and incidence (the frequency of use). In measurable health consequences, it may be meaningless if the number of people who try cocaine goes up or down; conversely a change in the amounts and frequency of consumption may significantly alter morbidity and mortality.
(79) In a 1984 paper for NIDA (Research Monograph 50), Siegel concluded that the "hypothesis that long-term use of cocaine is inevitably associated with an escalating dependency marked by more frequent patterns of use is not supported by the findings." Instead he found that "social recreational drug users maintained relatively stable patterns of use" in the face of ready supplies and increased income as they aged.
(80) Jerome H. Jaffe, 'Foreword', _Cocaine Use In America: Epidemiologic and Clinical
Perspectives_ (NIDA, 1985). Other research agendas should include the possibility of
addiction maintenance treatment and other therapeutic uses of cocaine.
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