busted: america's war on marijuana
ONE JUDGE'S ATTEMPT AT A RATIONAL DISCUSSION OF THE SO-CALLED
I was recently reading a book entitled The Buried Mirror, by a well-known Mexican author, Carlos Fuentes, a former ambassador to the United States and the United Nations, who on commenting upon Colymbus' "dis-Orientation" in mistaking his discovery for that of the islands off Asia, observed that:

[E]ver since, the American continent has existed between dream and reality, in a divorce between the good society that we desire and the imperfect society in which we really live.1

I believe this comment is apropos the subject about which I am going to speak today.

Our Nation has been engaged in a "war on drugs" since at least the mid-1970's. As with other wars, there is confusion over purpose as well as disagreement over tactics, for in war we tend, in the heat of battle, to lose sight of rationality and the continued need to search for the truth. And so the time has come when we must stand back from the trenches to determine where we are, what we have accomplished, and where we want to go.

The discussion of this topic essentially involves considering the views of two divergent camps: (1) those who urge that the present laws not be relaxed and even that, in some cases, they be made more stringent, and (2) those who promote, in varying degrees, the decriminalization of the distribution and/or use of at least some presently illegal drugs.

Of course, part of the "problem" is defining what is the "problem." To some there appear to be several reasons why government should reduce the availability of drugs. Yet not all within this group embrace all those reasons, although some do. Some believe drugs are bad for those who consume them, and that a proper role of government is to protect people from themselves. From this perspective, restricting drug use is analogous to protecting the public from unsafe food or, with a different focus, to the prohibition of pornography, even if used privately. There are others who justify the war on drugs not simply because of what drugs do to users per se, but because of what users do to others. Those who adhere to this view believe in the prohibition of drug use because drug users commit criminal acts to get drugs, or cause harm to others while under the influence of drugs, or because of the consumption of public resources to treat people who use drugs. Of course, whether any of these conditions are in fact "problems" depends in part on one's ideas of how people should live their personal lives and on how society should function. Whether these are "problems" also depends on whether, from an empirical perspective, drug use has the consequences that its critics claim. Furthermore, even once we conclude that there is a "problem," and we identify its nature, we must determine whether it is a problem worth dealing with and, if so, what is the best course of action to deal with it. This in itself is the subject of much debate. The point is that we have to be conscious of the fact that there is general disagreement not only regarding the ends that we pursue, but also as to the means by which we should conduct this so-called "war on drugs."

That said, I must confess that I have chosen today's topic with some trepidation. The most obvious reason for this hesitancy is, of course, the fact that as a public official, particularly one charged with deciding issues and cases related to drug offenses, I must do nothing which compromises, or even gives the appearance of compromising, the impartial adjudication of disputes arising under the laws that have been enacted by Congress.2 Although judges must be cautious in speaking out on matters of public policy, on the other hand, judges have an obligation to speak out when their work gives them a perspective on a particular issue that others do not have. In the matter of drugs, legislators and executive branch officials see the issue from an overall policy perspective, but influenced, and properly so, by public opinion and public fears. Professors and other researchers see drug issues from the vantage points of their various disciplines, and those involved in various advocacy groups see the issue from their particular points of view.

Lawyers and judges who participate in drug litigation, however, see the drug issue on a case-by-case basis, and when they see enough of those individual cases, they should begin to see a mosaic. But while lawyers see the cases from the standpoint of the prosecutor or the criminal defendant, judges see both sides. I think all these perspectives are important in helping us analyze the problem, but I fear that up to now the analysis has not been sufficiently informed by the judicial perspective.

I believe that there is sufficient intellectual room to allow for what I would hope would be a rational discussion of the diverse questions raised by this subject. These are issues regarding which judges have remained almost universally silent,3 notwithstanding that judges are in a unique position to significantly contribute, by virtue of their experience and observations while on the job, to focusing on these complex social problems. This collective judicial experience is sorely needed in advancing improvements in the law, the legal system, and the administration of justice.4 After twenty-one years on the bench, ten of which were spent in a very active and intensive trial court, I believe that I have sufficiently lost my judicial innocence, at least to the extent of allowing me to speak frankly about this admittedly controversial subject. Furthermore, because my record as a sentencing judge hardly classifies me as being "soft" on crime and particularly on drug related crime, I believe I can speak from a position which is non-apologetic. It goes without saying, of course, that the views I am about to express are just that, my views at the present. They in no way represent those of the court I sit on, or its members, or the federal judiciary in general, and, of course, I reserve the right to change them. Nevertheless, so that the world can sleep in tranquillity tonight notwithstanding my remarks today, let me assure all that I take my oath of office seriously and that I will continue to fully comply with it, irrespective of the personal views I may express today. The essence of the judicial role is to apply the law regardless of one's personal view of the law or how one might try to change it if one sat, not in the courtroom, but in a legislative chamber.

The fact of the matter is that my personal views on this subject have changed over my years on the bench, and they have changed dramatically. This has happened gradually, but if I were to pick a point in time when this process started, I could tell you it was towards the end of my district court tenure, and perhaps even more specifically, as a result of a trip that I took to El Salvador in the mid 80's, sponsored by the State Department, to speak to the Salvadoran judiciary and bar regarding the American legal system. After the incident which I will presently describe, I realized that I had already unconsciously started to become dissatisfied with the drug laws and their administration, and with the obvious lack of tangible progress in containing what seemed to be a losing battle in the war against drugs. This gradual change in point of view came about in part because I intuitively felt that the strong sentences that I and other colleagues, were handing out, as well as the massive government efforts of which I was aware, seemed to have little or no impact on the increasing flow of drugs into this country. I also detected a change in the nature of the defendants and groups that were appearing before me. While at first they seemed to be at best a bunch of disorganized amateurs, they started more and more to be well-organized professional criminals. I remember the defendant that was tried before me, who was caught with $10 million in manager's checks in his left shoe, and who owned a "coffee" farm in Colombia that was almost as big as Puerto Rico. The banker who testified said under oath that he saw nothing unusual in being presented with mountains of shopping bags full of $20 to $100 bills which the defendant brought on a regular basis, and which took three bank employees from 9 a.m. to 2 a.m. to count. This, and similar incidents, started me thinking that something was rotten in Denmark, and that the system was endemically faulted.

In any event, toward the end of my tour in El Salvador, which I should mention, was right in the middle of the civil war in that country, I was speaking to a bar group in one of the smaller cities. Somehow the discussion got around to issues related to drug enforcement. I expounded, I suspect somewhat long-windedly, my views to the effect that the United States needed the cooperation of Latin America in stopping the drug traffic by stricter enforcement, by stopping corruption, by eradicating the illegal crops, etc., etc. The audience was very polite, in fact one or two of those present may have actually clapped when I finished. A hand was then raised in the back of the room. The speaker identified himself as a lawyer, who said to me very deferentially: "Honorable Judge, we very much appreciate your presence and the advice you have given us, but don't you think the United States could help us in solving this problem?" I answered that as I understood the situation we were already sending considerable sums in aid, and that we had a lot of resources committed to the interdiction of drugs from Latin America and the prosecution of violators. To which he responded, "Excuse me your Honor, that is not the help we are in need of. What we need is for your country to stop consuming these drugs. If your people were not buying drugs, we would not be growing and selling them. We would rather sell you coffee, or oranges, or bananas, if you would only stop buying and consuming drugs." At first glance this is a rather trite, and perhaps insignificant interchange, but it hit me like a sledgehammer between the eyes, and brought home what I had already suspected, that there might be something fundamentally wrong with our traditional approach to the drug problem in the United States.

This leads to a second reason for hesitating in choosing this subject for today's discussion. As complicated as this issue appears based on what one reads in the newspapers or what I see in, and sense from, the briefs that lawyers present to me, as well as the cases I heard when I was a trial judge, once I began to delve into the reams of government reports, scholarly journals, and interest group advocacy, these issues reveal themselves to be truly mind-boggling. Worst yet, after it is all done you are left with a persistent feeling that there may be no single answer, and certainly that there is no quick and easy solution. It is thus a particularly frustrating subject for me because I am generally pretty much result oriented.

Drug enforcement policy5 involves the consideration of issues as diverse as both international and national politics, law enforcement, sociology, economics, organizational dynamics, and penology, to mention only the most salient. In addition to these there are complex scientific, pharmacological and health questions. And, of course, there are the moral quandaries raised by the various policy choices or alternatives. Needless to say, in the time we have allotted, we can only briefly discuss some of these topics and the manner in which they may help in providing a solution(s). But I do not think either the complexity of the subject or our concessions to the brevity of life should deter us from exchanging views, for we must start at some point and now is as good a time as any. In fact, I believe that more vigorous and frank public discussion of these issues is what is presently needed.

One last caveat. Do not in any way misinterpret anything that I say here today as an endorsement of any type of drug use, legal or illegal. Nothing could be further from my personal beliefs. Mine is but an attempt at rational discussion of what I understand to be essentially a health and social problem, rather than a criminal one.

What I will try to do is to layout some basic, generally accepted facts, analyze what I think they mean, list the pros and cons that are claimed by the various exponents of the different view points,6 and express some very tentative conclusions. Despite everything I have said, I am afraid you will be disappointed if you came here looking for sure-fire answers. In fact I may very well be raising more questions than answers. But I believe that in itself may serve a useful purpose.

The Magnitude of the Problem

I believe that we must start by getting some handle on the figures that delineate the issues. Because my remarks are directed almost exclusively at issues raised by the drug trade with and in the United States, right off we are faced with a distortion, to what extent I do not know, caused by the inability to accurately factor in many of the transnational influences that have indirect, but important, impact upon the solution of any national drug problem. What I mean by that is best illustrated as follows. For example, how is more, or less, enforcement in or by the United States affected by the failure to follow suit by the rest of the international community? Or, how will legalization in one jurisdiction be affected by the failure to carry out such action elsewhere? Will the drug trade, and/or addiction, move transnationally, as it is affected by these factors? These questions are obviously far from exhaustive, but are sufficient to illustrate what is rather obvious: that we are dealing with a subject that will not yield to mathematically-certain solutions. In fact, the inability to account for the effects of transnational influences is part of a larger problem that one encounters when trying to understand so complex a phenomenon as drug use. I am referring to the presence of competing explanations for most of the trends I will describe to you. I am not the person and this is not the forum for the kind of complex multi-variate analyses that would be necessary to isolate all the many factors that might be associated with, say, an apparent increase in the use of one drug or an apparent decrease in the use of another. Again, all I can do is present the facts I have found, tell you what I think they mean, and invite your consideration. Thus, for present purposes I think it best to just recognize the existence of these conditions, and then move on.

For our purposes I will only cover marihuana, cocaine and heroin, of the illegal psychoactive drugs,7 and tobacco and alcohol of those that are legal. I have included tobacco and alcohol within the scope of this already complicated scenario because comparison between the societal treatment given to legal and illegal drugs, and the outcome of this treatment, is in my view an important consideration in forming an opinion as to how to determine what course of action should be taken. As close as possible, the period covered will be that commencing in 1973, which is more or less the official commencement of the so-called war on illegal drugs, and on through 1994, which is the latest year for which complete statistics are available.

Let me say that I would be surprised 3/4 in fact, disappointed 3/4 if at least some of you do not disagree, if not with the figures that I quote, then at least with some of the conclusions that I reach therefrom. I can only say that it is very difficult to get truly comparative statistics in a complete fashion. I will admit to having engaged in some extrapolation, and there are many times when we end up comparing apples with oranges, because that is the best we can do. I have tried to be as objective as possible, and will be more than happy to reveal the sources from which I have extracted my statistics and conclusion.

A. Trends in the use of psychoactive drugs in the United States

Let me start by stating the overall problem in terms of the general numbers: it is estimated that there are about 46 million tobacco users,8 105 million alcohol users9 and almost 12 million illicit drug users in the United States.10 These groups are, of course, not mutually exclusive as there are undoubtedly many drug users who can be found within the ranks of more than one of these groupings, and in any combination thereof.

Maintain the Present Policy or Adopt a new One?  Weighing the Arguments

One who takes up this topic walks into more than the mass of empirical data about usage, cost, and trends that I have just summarized. There is also a crossfire of arguments for maintaining the present policy and for adopting a fundamentally different policy. Those arguments not only see the empirical data differently; they also see different moral and legal dimensions to the debate over drug policy.

The current policy calls for attacking both the supply and the demand sides of the illegal drug equation. This policy has various, more specific elements: continued international enforcement, border interdiction, domestic efforts to reduce the available supply, attacks on the economic base of traffickers by criminalizing money laundering and by seizures, and various educational and rehabilitation programs. Not all proponents of the current policy favor all elements, or give each element equal weight.

There is similar disagreement among those who favor a fundamental shift in current policy, those, in other words, who advocate "legalization" or "decriminalization." These terms, although technically meaning different things have, in the heat of the debate, been used almost interchangeably. Some advocates of legalization want all psychoactive substances to be available to any willing buyer. However most would limit legal availability to adults, and apply the new policy to only some of the current illicit substances. "Legalization" is also used to describe the idea that addicts with established drug habits should have legal access through clinics. This is generally within what is meant by "decriminalization." Most advocates of "decriminalization" would keep distribution illegal, at least by private persons, but would end arrests of consumers.

Massachusetts attorney Richard Evans, a reform activist, places the alternatives to prohibition into three groups: decriminalization, limitation, and regulation and taxation.50 Under decriminalization, drugs would remain illegal but the possession would be treated like a minor traffic violation, with little or no loss of liberty and/or fines imposed on the possessor. The limitation models would make drugs legally available but within clearly defined limits as to which institutions and professions could distribute the drugs. This approach has also been called the "medicalization" model.51 Under the regulation and taxation proposals the controls would be similar to those presently applied to alcohol use. This latter model is the preferred solution of many knowledgeable commentators favoring legalization.52 Despite these conflicting themes within the two basic positions, it is possible to delineate some basic questions. I see five:

1. Is the current policy capable of limiting drug use in a realistic way?

2. Which alternative imposes greater costs on society, permitting the use of drugs or prohibiting the use of drugs?

3. Does the current policy adequately promote education and treatment as well as law enforcement, and is there an adequate balance between these three courses of action?

4. What can we learn from the various attempts at drug legalization?

5. Is the current policy basically fair in its application?

I want to summarize the contrasting answers to these five basic areas and tell you how I come out, at least tentatively.

1. Is the current policy capable of limiting drug use in a realistic way?

Proponents of the current policy argue that the very fact that dangerous drugs are illegal is one of the most powerful deterrents to their use.53 They point to the reduction of 59.1% in overall drug use from 1979 to 1993 as proof.54 A comparison between the number of people that use illegal drugs with those that use alcohol and tobacco illustrates this point.

Opponents of the current policy may concede that it has reduced drug use, just as Prohibition reduced alcohol consumption, but they argue that the "war on drugs" initiative is cost ineffective when compared to the results achieved. An increase of 12,000% in the enforcement budget between 1973 and 1993 to achieve a 59% decrease in illegal drug use would appear to be highly cost ineffective, particularly when the modest amounts spent by the government in tobacco use education have apparently contributed to a 50% drop in the use of tobacco for that same period. They argue further that, viewed from a broader perspective, the economic forces of supply and demand make it virtually impossible to control the drug trade in any realistic sense.

As to supply: Law enforcement officials readily acknowledge that they intercept only a small percentage of drug shipments from abroad.55 Attorney General Janet Reno said in 1993 that she has "always being struck" by a statement made by federal officials to a Dade County, Florida grand jury in 1983. At a time when stepped up federal efforts had managed to interdict only about 25% of the drugs entering the southwest United States, they said that 75% of the drugs entering would have to be cut off before interdiction was effective, a figure which they described as "economically prohibitive."56

The problem is even worse. Even assuming that effective interdiction could be achieved as well as successful crop eradication in source countries, the resulting squeeze in the supply of drugs available to the U.S. consumer would be counterproductive. It would merely cause the price of illegal drugs to rise. As a result, addicts would have to commit more crimes to acquire the needed cash to pay for drugs at a higher price,57 and more criminals would have an incentive to enter the drug trade because the opportunity for higher profits would be greater.58 On this last point, it is estimated that $500 worth of heroin or cocaine in a source country brings a return of as much as $100,000 on the streets of most American cities.59 What other product permits for such a markup (20,000%), tax-free? Yet, it is the black market created by prohibition that allows it.60

As to demand: It is pretty obvious to most observers that users of illegal drugs are de facto and morally the principal cause of our drug dilemma. In the United States alone there are one million regular cocaine users (once/week) and five million who regularly use marihuana.61 As the Salvadorian lawyer said to me, "If you weren't using it, we wouldn't be growing it and selling it to you." The need to emphasize demand reduction is recognized by many leading experts,62 although I have yet to see any proposal that takes into account the hard facts of real politics. The only places that I am aware of in which there is real, no-nonsense demand side enforcement against users are Malaysia and Singapore, as well as some Muslim countries. There, the possession of any amount of illegal drugs is a hanging offense.63 I do not favor such draconian measures, and regardless of my preferences, I do not see the political climate for such demand side enforcement, and for that reason I do not see much possibility for stemming the demand for illegal drugs in the United States by the use of prohibition tactics. Thus the tremendously lucrative black market, estimated at $150 billion a year in the United States alone,64 is likely to continue unabated. Incidentally, it is reported that marihuana is the number one cash crop in the United States.65

It was precisely the political attitude against enforcing the drug prohibition laws against young people of nearly all ages and all social classes that brought about the decriminalization of marihuana in 11 states during the 1970's.66 An attorney involved in lobbying attempts to reduce the penalties for simple possession typically explained to the Utah state senate that: "These are your kids, after all."67 Another stated "that the courts would be reluctant to convict in marihuana possession cases since the marihuana problem was hitting middle-class families and Mormon youth."68 Although such tolerance is typically not exhibited towards minority users, particularly when "harder" drugs are involved, the fact is that we cannot prosecute and put all users in jail, even if we wanted to.69 Already more than one in forty American males between the ages of 14 and 34 are locked up70.

One possible corollary to be gleaned from this scenario is that drug use, legal and illegal, is principally a health problem which is best dealt with not by driving it underground with prohibition tactics, but by having it out in the open to allow for treatment and education.71 Peter Reuter72 concludes that drops in marihuana use by high-school age users, particularly in the 1980's, are related more to changed perception of the health dangers of such use than to enforcement efforts. It is difficult to understand why illegal drug addiction should be treated differently from alcoholism or nicotine addiction: all are basically public health problems73.

2. Which alternative imposes greater costs on society: permitting the use of drugs or prohibiting their use?

Proponents of the current policy argue that the harm caused by drugs is not restricted to the users. I believe they deal effectively with the so-called "libertarian" point of view that is espoused by at least a minority of respectable persons from diverse walks of life74 _ people who say that criminal sanctions cannot, and should not, prohibit personal conduct which does no harm to others. It is not the business of government, they say, to protect people from themselves. An individual should be free to engage in the private use of drugs because the right to ingest substances is part of the right to self-determination.

For starters, I note that this alleged right to self-determination rests on a constitutional foundation yet undeclared. More important, however, drug use does cause harm to others. Proponents of the current policy point to such secondary effects as crime, accidents, and public nuisances. All those things have innocent victims quite apart from the users. Drug use also imposes various costs on society _ the costs of lost productivity, and prenatal injuries.75 The annual external costs of cocaine and heroin use alone have been estimated at $24 million.76

Moreover, public opinion is overwhelming against legalization,77 and such action would not only be unpopular but would send the wrong message, particularly to the younger age groups.

Opponents of the current policy do not dispute these costs. They dispute that prohibition is the best way to reduce them. Legalization, they say, would eliminate the criminal entrepreneur and enterprise endemic to the illegal drug black market as well as most of the negative downstream effects related thereto.

Before comparing dollar costs, it is important to consider their argument that prohibition exacts its own toll on the very concept of a free society. One does not have to embrace the libertarian argument to see a moral contradiction in our current approach to drugs. Interestingly enough, Nobel prize economist Milton Friedman said that "The economic problem [of drug use] is strictly tertiary. It is a moral problem . . . What scares me is the notion of continuing on the path we're on now, which will destroy our free society."78 Opponents of the current policy note that very few people would today seriously argue in favor of the criminalization of tobacco or alcohol use. Nevertheless, opponents compare the 5,000 deaths directly attributed to the use of illicit drugs with over 570,000 annually directly caused by alcohol and tobacco use. In fact "[a]lcohol is the drug most associated with many forms of violence, including domestic violence."79 And the direct and indirect antisocial consequences of tobacco abuse are scientifically undisputable. What, we are asked, is the morality of prohibiting drug use but not the alcohol or tobacco use?80

Whatever the moral argument, however, we also need to consider the social and economic costs of the current policy and ask whether the costs of an alternative policy would be as great. Opponents make these arguments.

First, they say, prohibition inflates the price of drugs, inviting new criminals to enter the trade; it reduces the number of police officers available to deal with violent crime; it fosters adulterated, even poisonous drugs; and it contributes significantly to the transmission of HIV.81

Moreover, the black market underground economy created by prohibition allows a huge pool of economic power to be controlled and influenced by criminal elements. Competition for these funds is directly responsible for most of the so called "drug-related violence." Prohibition provides a case history. The murder rate not only rose with the start of Prohibition, and remained high during its existence, but in fact declined for eleven consecutive years after it ended.82

Similarly, the rate of assaults with firearms rose during Prohibition but declined for ten consecutive years after repeal.83 Whatever violence is associated with the multi-billion dollar alcohol industry today as regards the production, distribution, and sale of alcoholic beverages, it is undeniably insignificant when compared to the violence that accompanied these activities during Prohibition.84

The competitive or "turf' related drug violence is intrinsically related to prohibition and therefore it is logical to conclude that it would virtually disappear with the elimination of the drug black market.85 Economic compulsive crime, that is, crime that addicts do to finance an expensive habit, should also decline dramatically with the repeal of prohibition.86 That leaves so-called psychopharmacological crime, that is, crime induced primarily by the impact of the drug upon the body and emotions of the user. A study of this last group revealed that in only 7.5% of homicides involving any drugs was a psychopharmacological label justified, and even in these cases, the most common element was alcohol.87

More people die every year as a result of the war against drugs than from what we call, generically, overdosing. Milton Friedman, an advocate of legalization has estimated that as many as 10,000 homicides a year are plausibly attributed to the drug war.88

Because the sums of money generated by the illegal drug trade are so large, prohibition has placed tremendous economic power in the hands of organized crime. This economic power is the result of both the large amounts of drug generated money and the fact that there is an unregulated market of illegal products. This power allows the corruption not only of law enforcement officers, but also of all levels of public officials, and related politicians.89 The most salient example of this subversion is presently being witnessed in Colombia with its alleged election funds scandal, in which it is claimed that President Samper's election campaign was partially financed by the Cali drug cartel.

The current policy, say its opponents, creates general contempt for the law with more serious and permanent societal costs. Both federal and state laws prohibiting drug use are frequently violated with impunity by many citizens. According to the Office of National Drug Control Policy, "here in the United States, in every state -- in our cities, in our suburbs, in our rural communities . . . drugs are available to almost anyone who wants them.90 They could well have added to their list, "even in our jails," for it is an acknowledged fact that even in the allegedly secure environment of our prisons, illegal drug use is rampant.

Finally, opponents point to the resources that would be freed-up if we abandoned our current policy. In the area of crime prevention alone, 400,000 policemen as well as multi-billion dollars in federal and state law enforcement and penal expenditures would be available for treatment, education and "regular" criminal police work.91 Additionally, our court systems would be freed up to handle not only the non-drug criminal docket but the societally important civil docket as well.

Tax revenues from alcohol and tobacco amount to $38.82 billion yearly.92 I believe it is a fair assumption that the legalization of the drugs presently proscribed would allow their taxation in substantial amounts. Certainly the revenues from their taxation would be higher than at present. The precedent for reaping public funds from the wages of sin is certainly well-established. Additionally, the presently tax-free income profits derived from the sale of illegal drugs, would come into the mainstream of income taxation.

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