busted: america's war on marijuana
FRONTLINE's interview with journalist Eric Schlosser. He has written several articles on the history and impact of marijuana law enforcement.  Interview conducted December, 1997.
INTERVIEWER

I've been told that the percentage of marijuana in prison is a very small percentage of the total number of people in prison for other drug offenses.

ERIC SCHLOSSER

It's a pretty large number, in the sense that, certainly, in the federal system, about one out of every six federal inmates is in federal prison for marijuana. That's a very large number. There are more people now in federal prison for marijuana offenses than for violent offenses. Out of the 1.1 million people in American prisons, the marijuana offenders are not the majority. But there are a lot of them. And certainly, at a time when there's a shortage of prison space and when murderers are serving on average about six years in prison, it seems absurd to have non-violent marijuana offenders locked up in those large numbers.

INTERVIEWER

What kind of marijuana offenders are we talking about?



ERIC SCHLOSSER

Most of them are marijuana growers and marijuana dealers, although there are instances of people being put away for remarkably small amounts of marijuana. I've come across more than one case of people getting life without parole for a joint or for less than a joint. They tend to be habitual offenders and that's their third strike, but that's still a very severe punishment for possessing a joint.

When I started looking into the war on marijuana, I was struck by how similar it was in a lot of its internal dynamics to the McCarthy era witchhunts, which I had studied in college. And the deep unreason to it and the hysteria surrounding it seemed very similar. And what concerned me most was how it seemed like another scapegoating. This country traditionally has gone thorough periods of intolerance where we look for scapegoats blame scapegoats and avoid dealing with our real problems.

And the war on marijuana seemed like a classic example of that national tendency. So the question that I address myself to in the articles I've written is how does society come to punish a person more harshly for selling marijuana than for killing somebody with a gun?

INTERVIEWER

How does that happen?

ERIC SCHLOSSER

Under the laws of fifteen states, you can get a life sentence for a nonviolent marijuana offense. And the average sentence for a convicted murder in this country is about six years. In the state of California, the average prison sentence for a convicted killer is about 3.3 years. So that enormous discrepancy between how violent crimes tend to be treated and how some nonviolent drug crimes are treated points to a very irrational impulse in this country to punish when it comes to marijuana.

In terms of the discrepancies between marijuana laws in different states--most people don't realize that the drug laws of this state operate at the federal, local and state level so you can be charged under any one of those three types of laws for a marijuana crime. And the punishment that you're going to receive for the same crime can vary enormously depending upon what state you're in and who decided to prosecute you.

For example, in Montana you can get a life sentence for a first offense for growing one marijuana plant. In New Mexico, which is not far away, you can be growing ten thousand marijuana plants for a first offense and get a punishment of no more than three years. Under federal law, you can get the death sentence for a first-time marijuana offense even if there's no violence involved. Anyone who's caught with 60,000 plants, which seems like a lot of pot, but if you're the person driving the truck for that conspiracy you may not be the kingpin can be given the death sentence under federal law.

INTERVIEWER

And what did you come up with, in trying to understand and explain this whole situation?

ERIC SCHLOSSER

What I came up with was that the actual properties of the drug really did not help explain the crusade against it. About 100 years ago, the British colonial administrators of India became concerned with how much their coolies were smoking marijuana and conducted a fairly intensive study of marijuana. And they released what was called the British Hemp Commission Report in 1894 that found that marijuana was relatively harmless, but that the chief physiological ailment it caused was bronchitis and a higher incidence of upper respiratory ailments from inhaling the smoke.

And after a hundred years of scientific studies that have cost millions to conduct, modern science has basically come to the same conclusion. And last year the British Medical Journal, The Lancet declared that smoking cannabis, even long-term, is not harmful to health. Now, it is a very strong intoxicant and there are all kinds of reasons why young people shouldn't be smoking pot.

But given that hundreds of people died every year in this country from non-prescription medicines, like aspirin and various antihistamines, and given that an estimated 300,000 die from tobacco and over 100,000 from alcohol, it clearly seemed to me that a concern for public health was not behind these strict punishments for marijuana.

On the contrary, at a time when AIDS patients and cancer patients and epileptics and people with multiple sclerosis have all been sent to prison for using marijuana as medicine, it really seemed like the war on marijuana fit into what has been called the paranoid style of American politics. The need to look for internal enemies and scapegoats.

INTERVIEWER

Who is the scapegoat? Who is that enemy?

ERIC SCHLOSSER

Well, in the 19th century, the Catholics were used as a scapegoat by the Nothing Party. And in this century, a variety of minorities and non- conformists and especially immigrants, became the target of various witchhunts. What's interesting is if you look at origins of the marijuana prohibition in this country, it coincides with a rise in anti-immigrant sentiment. And marijuana first appears in the public press and as a source of alarm in beginning years of this century when there was an upswing in Mexican immigration. And marijuana became associated with the poor Mexicans in the United States who used it as their traditional form of intoxication.

And whereas alcohol was seen as an all American form of intoxication. Marijuana was something alien and dangerous, and was linked to violence and homicide. It was called the killer weed. And really since the early years of this century, the war on marijuana has been much more a war on the sort of people who smoke it, be they Mexicans or blacks or jazz musicians or beatniks or hippies or hip-hop artists. It's really been a war on nonconformists and the laws against marijuana have been used as a way of reasserting what are seen as traditional American values.

INTERVIEWER

Tell me about the propaganda of the 1930s against marijuana.

ERIC SCHLOSSER

The propaganda of the 1930s against marijuana portrayed it as the killer weed. This was known as the Reefer Madness period. And marijuana was seen as a treat to America's youth being pedaled by Mexicans and blacks and jazz musicians, and it was said to turn the average American youth into a homicidal, suicidal, sex-crazed, maniac. And even though the propaganda films of those years are absurd, more people have been punished and imprisoned in the last ten years than were every actually harmed by the laws passed during the 1930s.

INTERVIEWER

There are also these great shifts historically in our attitude toward marijuana.

ERIC SCHLOSSER

This country goes through periods of tolerance and intolerance. And how marijuana and users of marijuana have been treated during those periods is just a reflection of a much bigger social trends. And that's why it was interesting to me. I think the 1980s, in general, were one of our periods of intolerance and the slogan, Zero Tolerance, as a plum as it applied to drugs in many ways described social attitudes in general. There was upswing in anti-immigrant sentiment and a backlash against women and unions and minorities and I really think you have to see the war on marijuana in that context.

Certainly in the 1960s and 1970s, there was a very different attitude towards how we deal with drug use. Increasingly, it was seen to be a public health problem, not a problem to be dealt with by the criminal justice system, and treatment rather than imprisonment was being favored and in the 80s we saw a return to the old-fashioned attitudes. Harry Anslinger, who was the first head of the Federal Bureau of Narcotics, really opposed any kind of drug treatment and his philosophy could be summed up: Lock them up and throw away the key.

So I think in the 1980s, you saw a re-assertion of that philosophy of how we deal with drug abuse. It's interesting that alcoholism used to be viewed in a similar way. And alcoholics were sinful, they were evil and we've come a long way. Now alcoholism is regarded as a disease and people aren't stigmatized.

Unfortunately, drug abusers in this country are considered to be morally repugnant and evil and that kind of attitude has allowed us to imprison them in great numbers. And at great costs. And ultimately one of the real problems with the marijuana polices that we have is how ineffective they have been. Oddly enough the country in Europe that is considered to be the most liberal and permissive, which is Sweden, has the lowest rate in Europe of marijuana use. Far lower than the rate of the United States. They don't have very strict laws against marijuana. The longest sentence that a marijuana dealer will usually get is about three years. But what they have is a very consistent public health approach towards all drug use. And by treating people who are drug abusers as though they need medical attention and not imprisonment, they've created a culture and a society that has very low marijuana use.

INTERVIEWER

Some people would argue, however, that the marijuana laws are effective because the price has gone up.

ERIC SCHLOSSER

Well, the rising price of marijuana has been very effective at creating phenomenally wealthy marijuana dealers and marijuana growers. But what's remarkable is that, during the last four years of the Clinton administration, more people have been arrested than in any other four years of American history for marijuana offenses and more people are in prison than in any other time in our history for marijuana offenses--hundreds of them for life. And yet marijuana use is increasing enormously. So I think by any measure the war on marijuana of the last fifteen years has been a complete failure.

In 1982, when President Reagan launched the war on marijuana, 88% of American high school seniors said it was easy for them to obtain marijuana. In 1994, 85% said that is was easy for them to obtain marijuana. And during that period, billions of dollars have been spent fighting marijuana. Millions of people have been arrested. More than 250,000 have been sent to prison convicted for marijuana felonies and yet marijuana use is going up. So I think the high price of marijuana and the high profits being earned by marijuana dealers is a guarantee that the marijuana use will not decline because of the phenomenal profits that can be earned growing what's essentially a weed that will grow very cheaply anywhere.

INTERVIEWER

Explain how mandatory minimums give more power to prosecutors.

ERIC SCHLOSSER

Under federal law, buying, selling, possessing or growing marijuana is illegal everywhere in the United States. And a federal prosecutor can decide whether or not to charge someone busted for marijuana under a federal law or not. So first of all, [the] prosecutor has enormous amount of power by deciding whether to charge you or not. And if you're charged under state law, you might get probation depending on the state. If you're charged under federal law, you might get a ten-year sentence. In addition to deciding whether or not to charge you for the marijuana offense, the prosecutor can decide how much marijuana to include in the charge, and the amount of drugs is what determines the length of sentence.

The prosecutor also decides whether to seek a mandatory minimum sentence if it applies, and if you're prosecuted for a mandatory minimum sentence, the only way you can get out of it is by pleading guilty and by giving substantial assistance to the government in the prosecution of someone else. And it's the prosecutor and not the judge who decides whether you've given that substantial assistance. So the mandatory minimum laws transferred the kind of power over someone's sentence that for generations had belonged to federal judges, to federal prosecutors. And it resulted in an enormous increase as a result the power of the state.

INTERVIEWER

And it also encourages informing?

ERIC SCHLOSSER

Well, the exemption for those who provide substantial assistance to others puts a premium on informing as the way to escape punishment and as a result the United States in the last fifteen years has developed the largest and wealthiest class of professional informers that it's ever had.

Again, during the McCarthy era, there were a lot of professional informers who were used to testify before House Committees and in trials about who was or who wasn't allegedly a subversive. But under the current drug laws informers, not only can escape a long prison sentence, but they can earn up to 25% of the assets that are forfeited by the person who's convicted. So we now have a large number of people who have a direct financial stake in getting people convicted. And as in the McCarthy era, these professional informers have shown themselves to be as adept at lying for profit as they have been at revealing the inner workings of drug gangs.

INTERVIEWER

But, what's wrong if that's what it takes to get offenders in the prison and convicted?

ERIC SCHLOSSER

Well, one of the great ironies is that at the same time the United States was winning the Cold War, it was adopting legal mechanisms that had been used for decades in the former Soviet Union and the Eastern Bloc. And the rise of prosecutorial power, the increasing reliance on professional informants with a financial interest in getting people convicted, and the forfeiture laws which have allowed the government to seize people's assets and seize their houses and seize their automobiles even if they had no knowledge of the drug crimes that were being committed on that property, it seems a very high price to pay for fighting drugs in a war that's still being lost.

INTERVIEWER

Isn't it true though that very often these people are given a chance to plea bargain, that ... people actually with very long federal prison terms is relatively minor?

ERIC SCHLOSSER

Most of these cases are settled through plea bargain, as are most criminal cases, but in some of the plea bargaining situations defendants have [been] put in unusual situations and have to make very difficult choice. I wrote about a woman who was given the choice of testifying against her husband and receiving a brief prison sentence or refusing to testifying against her husband and going to prison for 11 years for a relatively small amount of marijuana. She chose to go to prison.

Another drug case--a woman was asked to testify against her own mother and refused to testify against her mother and was sent to prison for ten years as a result. Now these are extreme measures to get rid of drug use when other countries have used drug treatment and public health policies and have done a much better job at reducing drug use.

INTERVIEWER

What are some of the egregious federal cases you have come across or written about in terms of long prison terms for marijuana?

ERIC SCHLOSSER

One of the more interesting cases that I wrote about was the case of Mark Young, who was a hippie biker in Indiana, a rogue, who was very honest with me about some of the illegal activities that he had been involved with. But he had a very minor criminal record. He had been arrested twice on drug offenses--once for filing a false prescription, once for possessing a couple of quaalude. Both times he was given a $1 fine and never served a day in jail. And then he was arrested for serving as a middle man in a large marijuana transaction. He introduced some people who were growing marijuana to some people who wanted to buy marijuana and about 700 pounds of marijuana were exchanged in the transaction.

He was convicted and sentenced to life imprisonment without parole and sent to Levenworth penitentiary, one of the most dangerous federal prisons in the country. And I saw in his case a lot of the themes that applied across the board to the war on marijuana. He was put under enormous pressure to cooperate with the government and refused to do so, refused to testify against a friend of his and essentially received life without parole as a result.

INTERVIEWER

But he did win his appeal...

ERIC SCHLOSSER

He eventually did win his appeal and his life without parole was reduced to 12 years in prison. But 12 years is a long time in federal prison. Three or four years is a long time to serve especially for a nonviolent offense. A three- or four-year sentence is guaranteed to contribute to the loss of a job, perhaps, the loss of a family and it's a pretty high price to pay.

INTERVIEWER

Why shouldn't he spend at least 12 years in prison? He broke the law, right?

ERIC SCHLOSSER

Well, again, I think that the sentences for marijuana crimes are disproportionate to the actual harms that are being caused by the drug. The most widely abused and most deadly drugs in the United States unquestionably are alcohol and tobacco and if you were to turn on MTV you can see beer ads. Essentially eighth graders drink alcohol three times more often than they smoke pot and the difference between how we treat alcohol and how we treat marijuana is completely a culturally and not a logically based policy.

INTERVIEWER

So it's a question of comparison then?

ERIC SCHLOSSER

Well, early in the marijuana prohibition, if you read the anti-marijuana literature, it's openly racist and it talks about how alcohol is the drug of the higher races and how marijuana and hashish is the drug of inferior races. And that kind of cultural prejudice has survived now for decades. So it really makes no sense to me to give a marijuana a twelve-year sentence at the same time that the alcohol companies, who are producing a much more dangerous product, are at the heart of American society.

INTERVIEWER

Who are we arresting then, mostly, for marijuana offenses? Are we scapegoating in effect?

ERIC SCHLOSSER

In terms of the arrests, there are about 600,000 marijuana arrests every year and the vast majority of those are for small-time possession. But there is a higher proportion of minorities who are arrested and if you were to look at who's actually being imprisoned for marijuana, by and large, the poor and working class people. Middle class and upper-middle class offenders who are busted, generally, privately enroll in drug treatment and are given very light sentences. Certainly the children of high government officials tend to be treated much more leniently by the courts then do the children of carpenters and factory workers.

INTERVIEWER

What happens in state prosecutions of marijuana?

ERIC SCHLOSSER

Again, it can vary enormously depending upon what state you happen to be in when you're arrested. Ten states have essentially decriminalized marijuana and if you're arrested for a small amount, it's like getting a parking ticket. The most liberal state of all is the state of Ohio where there is a very conservative governor. In Ohio, up to three ounces of marijuana or an equivalent of marijuana plants is essentially a parking ticket. On the other hand, in the state of Nevada, any amount of marijuana is considered a felony and you can [get] a felony conviction for a single joint, [which] can have a lot of ramifications for your life, in terms of professional licenses losing your voting rights, etc.

INTERVIEWER

And Oklahoma's a pretty tough state?

ERIC SCHLOSSER

Oklahoma is one of the toughest states in terms of their marijuana laws and the enforcement of their marijuana laws. There's a gentlemen named Larry Jackson in Oklahoma who received life without parole for .005 tenths of a gram of marijuana essentially a few flakes of marijuana in a roach. There's another man in Oklahoma, named James Montgomery, a paraplegic who was arrested with two ounces of marijuana in the pouch on the back of his wheelchair. He smoked the marijuana to help him with muscles spasms. It was his first arrest. He was tried and convicted and given the sentence of life plus 15 years. Oklahoma and Alabama are two of the worst states in terms of the toughness of their the length of their marijuana sentences.

INTERVIEWER

Can you talk about the cultural symbolism of marijuana some more?

ERIC SCHLOSSER

During the 1960s, marijuana attained enormous symbolic value. It had importance to the counter culture. It represented a defiance of mainstream America and it also came to symbolize all the evils of the counter culture. And a lot of the excesses and permissiveness of that period was blamed on marijuana. The anti-drug groups that arose in the 1970s and who eventually came to control our drug policy in the 1980s really held marijuana responsible for everything bad that had happened in the 60s. And I think the anti-marijuana laws that were passed in the Reagan-Bush era have to be understood in that context.

The war on marijuana was a cultural war and the plant involved was less important really than the sort of person who smoked it. In many ways, the urine tests that have become wide-spread today are a modern equivalent of the 1950s loyalty oaths. These urine tests cannot measure whether anyone has been stoned on the job. Because if you smoke marijuana the traces of it can remain in your urine for weeks. What these tests are assessing is whether you're the sort of person who smokes marijuana.

And those people, the sort of people who smoke, are being disqualified for employment by corporations and government agencies around the country. It's perfectly fine if you've had ten beers, driven drunk, run down the street naked the night before, but as long as you pass your drug test, you're employable. Someone who has smoked a joint in their home on a Saturday night and takes that test a week later can be disqualified for a job. So what we're really talking about is a cultural conflict. In some ways, it's a conflict between different generations, but it's also a conflict between different definitions of true Americanism and this definition of true Americanism in the past has been used to exclude and punish Mexicans and blacks and it's interesting how music has played so much into the war on marijuana.

Harry Anslinger, the head of the Federal Bureau of Narcotics, was obsessed with jazz. He thought jazz music was infecting America's young and corrupting them and he sought to destroy it at any cost. And he saw a very strong link between marijuana and jazz, and he tried to start a nationwide round up of jazz musicians who he hoped to bust for marijuana and therefore rid the nation of jazz. A generation later jazz had become a mainstream form of American music and rock 'n roll now was associated with marijuana. And today, it's rap and hip hop. So the war on marijuana has really been a very convenient way to strike out at nonconformists and at people who seem to be posing a threat to mainstream America.

INTERVIEWER

So it encapsulated the opposing side or two visions of America. Who are the two camps?

ERIC SCHLOSSER

I guess it's part of a long-running battle in this country between tolerance and intolerance. And we go through periods of respecting diversity and we go through periods of doing everything we can to enforce conformity. And I think that's really where the war on marijuana and the war on drugs, in particular, seem so important. Now, there are other countries where scapegoating is part of their culture and certainly the United States is not unique in seeking to avoid its real problems by looking for scapegoats, but what's different about this country is that we have a Bill of Rights and a Constitution and a whole set of beliefs that are supposed to protect minorities and nonconformists.

INTERVIEWER

So where are you coming from--are you saying marijuana is good? Are you for legalizing it?

ERIC SCHLOSSER

Oddly enough, I don't really care a great deal about marijuana. I'm interested in the subject mainly because of what it reveals about larger forces and disturbing forces in this society, a threat to minorities and civil liberties. I do not believe in the legalization of marijuana. I don't think it's a good idea to have widespread marijuana use.

At the same time, I think a much more effective drug policy relies on a public health approach and not on criminal justice approach. Prison cells are a very scarce commodity. And they are best filled with murderers, rapists and recidivist violent offenders and not with potheads. I think the greatest indictment of the policy that we're following is that it hasn't worked and that marijuana use is going up.

INTERVIEWER

When you say "scapegoating," what are you implying about those who are against marijuana?

ERIC SCHLOSSER

I think many of the people who have been active in the war on drugs are very well intended and very sincere in their opposition to drug use. At the same time, I think the intense focus on drug use over the last 15 years and particularly the obsession with marijuana is a kind of misdirected energy, scape goating, and a tax on minorities usually occurs in times of economic and social uncertainty.

And I think it's significant that since 1973 the annual hourly wages have for most Americans have been in decline or have been stagnant and I think that the real problems that this country faces are far more serious and far more difficult to deal with than the fact that some people are smoking pot. Rather that's health care, homelessness, the stagnation of wages, these are much more deeper social problems that are more difficult to handle.

One of the reasons that the war on drugs and the war on marijuana has succeeded as a political issue is it's very easy for politicians to deal with. It's very easy to appear soft and it's very easy to appear tough on drugs. But the consequences appear later. In 1986 when this anti-drug legislation was passed by Congress, it was a very easy vote to make. Since that time, it's been a very expensive one in the sense of the prison construction and the arrests,we spend about @2.5 billion a year just processing marijuana arrests. So the cost of this policy comes later but for politicians seeking votes, pot smokers and drugs have been a very easy and convenient target much as pinkos and Communists were in the 1950s.

INTERVIEWER

So fixing the marijuana problem--that would mean creating a certain vision of America?

ERIC SCHLOSSER

I think fixing the marijuana problem involves lowering the intensity and the heat of the debate, and trying to look at this drug calmly, rationally and free of all of the symbolism that it has acquired over the past century. Twenty-five years ago a commission appointed by Richard Nixon, after studying marijuana quite intensively, came to the conclusion that it should be desymbolized and decriminalized. That was essentially the modern Republican position of 1972. In the years since then, marijuana has been used really as a way to strike out at the liberalism and permissive of the 1960s and early 70s and it has not reduced the amount of marijuana being smoked, but it has filled the prisons.

INTERVIEWER

So do you think we are going to be able to strike out a little new ground?

ERIC SCHLOSSER

I think I'm guardedly optimistic in that I feel that the cost of our current policy is eventually going to be too much to bear. Communities are going to refuse to build more prisons and as more middle class parents have to deal with their children being busted for product or finding their children smoking pot, I think that they will be unwilling to tolerate the sort of punishments and the sort of laws that have been used for the last 15 years against the poor and working class. In general, as drug use increases to the point where it affects a larger number of people, they become less likely to support such punitive policies, because they may have a friend or family member who is facing a long prison sentence.

INTERVIEWER If we took marijuana out of the illegal drug equation, wouldn't that sort of undercut some of the justification forthe drug war?

ERIC SCHLOSSER

Well, marijuana is the most widely used illegal drug in this country. It's used more frequently than all other illegal drugs combined. And as a result, the fundamental justification for the drug war would be greatly reduced. The justification for urine testing, for drug testing in very large beauracracies that have been formed in the last 15 years to fight the war on drugs would be robbed of a great deal of their rational. At the same time, other countries have worked hard to separate marijuana from more dangerous drugs, such as cocaine, amphetamine and heroin, and have actually found as a result that they have much lower rates of those drugs.

INTERVIEWER

So that's one of the reasons there's been so much resistance to reclassify marijuana?

ERIC SCHLOSSER

I think that the war on drugs essentially began as a war on marijuana and once you've reached a certain size and a certain momentum there were very large and powerful beauracracies that acquired an interest in perpetuating it and it will be very difficult, as a result, to change these laws overnight. Nevertheless, the ending of the Cold War has shown that reason can triumph over large beauracracies and, hopefully, that will happen with the drug wars.

INTERVIEWER

The Red scare and many other scares, especially if they seem to emanate from high levels of power in society, tend to be in the service of rallying support or at least crushing questioning for the Cold War, for instance. What's the analogous purpose for a drug scare, for a marijuana scare?

ERIC SCHLOSSER

Anytime that you have public policy debate turned into a war, you have reason and rationality fleeing from the debate. During the Red scare and during the McCarthy era, there really were not a great number of Communists secretly trying to subvert high school students and college students and the water supply of the United States. The McCarthy era was in many respects a backlash against the New Deal and the New Deal liberalism that had become popular, and it was endorsed by many Democrats and Liberals in the 1950s as a means of staying in power and attacking the Communists and especially attacking the subverses at home became a way of inserting your Americanism and also getting re-elected.

In this country, once the anti-drug forces of the 1970s were brought to power in the election of Ronald Reagan, the war on drugs became a similar way of expressing patriotism, of showing your true devotion to Americanism. Just as in the McCarthy era, many liberal politicians soon led the way in the war on drugs. The forfeiture statutes are really the work of Senator Joseph Biden. As I mentioned, Tip O'Neil, Speaker of the House, played a crucial role in the anti-drug abuse act of 1986 and more people have been arrested for marijuana in the Clinton administration than in any other administration.

The President of the United States, the President of the United States the Speaker of the House and at least one Supreme Court justice have all acknowledged smoking marijuana. But because of the political rituals that are necessary today, they have to forswear the excesses of their youth and take a very strong stance against it now. I think the American people are actually more tolerant, ultimately, than their politicians are, and it will not be a litmus test for higher office someday to say, "I am not now nor have I ever been a pot smoker."

For more of Schlosser's views and reporting on marijuana laws, here are links to his articles in The Atlantic:

"Reefer Madness"

"More Reefer Madness"

"Marijuana and the Law"

 

 
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