busted: america's war on marijuana
One Judge's Attempt at a Rational Discussion (continued)
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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?

There is almost unanimous agreement among independent observers that the apportionment of anti-drug funding is lopsided.93 Historically, about three-fourths of available funds have been earmarked for supply reduction (enforcement, interdiction and foreign assistance initiatives), with only one-fourth of the money being assigned to demand reduction (prevention and treatment).

Yet treatment is seven times more cost effective than prohibition. One dollar spent on treatment of an addict reduces the probability of continued addiction seven times more than one dollar spent on incarceration. Unfortunately, treatment for addicts is not now available for almost half of those who would benefit. Yet we are willing to build more and more jails in which to isolate drug users even though at one-seventh the cost of building and maintaining jail space, and of pursuing, detaining and prosecuting the drug user, we could subsidize effective medical care and psychological treatment.94

Proponents of the current policy argue that the pharmacological effects of drug use generally support prohibiting their use. E. Leong Way95 provides a hierarchy of drugs according to their addictiveness and harm, placing cocaine and alcohol at the top, and marihuana and tobacco at the bottom.96 Avram Goldstein claims alcohol and tobacco are the greatest health problems, and that legalizing other substances will only create further problems.97 Dramatic examples of drug- related harm caused by cocaine and opiate use include toxic reactions, drug overdose deaths and the spread of AIDS among needle sharing addicts. Cocaine, which is an extremely potent central- nervous system stimulant, has the physical effects of increasing temperature, heart rate, and blood pressure, all of which can cause serious bodily injury, including death. Heroin, is of course, highly addictive with all the concomitant problems that flow from such a condition.

Even as to marihuana, which many regard as having few if any serious health effects from marihuana, there has not been an opportunity for wide-scale study. There is, however, at least some credible evidence that marihuana causes lung damage. Researchers at the University of California at Los Angeles have reported that the respiratory burden in smoke particulates and absorption of carbon monoxide from smoking just one "joint" is some four times greater than from smoking a single tobacco cigarette.98 They found that one "toke" of marihuana delivers three times more tar to the mouth and lungs than one puff of a filter-tipped cigarette, and that marihuana deposits four times more tar in the throat and lungs and increases carbon monoxide levels in the blood fourfold to fivefold. Aside from the health consequences of marihuana use, research by the Center for Psychological Studies in New York City, conducting research on the behavioral aspects of drug use, has led to the conclusion that the use of marihuana severely affects the social perceptions of heavy users.99

Proponents also note that the pharmacological effects resulting from the use of most illegal drugs (I should say, alcohol as well) also increase the chance that users will become victims of crime.

Finally, although mandatory civil commitment is a controversial subject, there is considerable statistical evidence in support of this approach, because there is a definite correlation between length and intensity of treatment, and rehabilitative success.100

Opponents of the current policy tend to emphasize the modest health risks associated with at least some drugs, particularly marihuana. Harvard's Lester Grinspoon, for example, has documented the alleged medical benefits of marihuana.101 Few opponents claim that all drugs are benign. Most argue instead that the national effort to control their use should be fought as a public health war, with the government putting addicts into the public health system as it has done with alcohol and tobacco abuse.102 As previously stated prohibition has led to deaths through the use of adulterated drugs and is a principal cause of the spread of HIV virus, especially, as noted below, among African-Americans. Prostitution for drugs and "crack" babies are also direct consequences of prohibition.

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

We should commence with the case of re-legalization of alcohol use in this country, i.e., the repeal of Prohibition.

Whatever its faults, proponents say, Prohibition showed that the law can reduce the use of dangerous substances. Prohibition reduced alcohol consumption by 30% to 50%,103 and led to adramatic decline in both cirrhosis deaths and hospital admissions for alcohol related psychosis.104 According to John C. Lewis, a former administrator of the Drug Enforcement Administration, the repeal of Prohibition resulted in a huge increase in the use of alcohol.105 Data substantiate Lewis's claim: from 1916-1919, per capita consumption of alcohol for the drinking age population in the United States was 1.96 gallons. It dropped to 0.90 gallons during Prohibition and increased thereafter to 1.54 gallons between 1936-1941, to 2.43 gallons by 1989.106 To be sure, prohibition failed to eliminate drinking entirely, and it produced a black market, but we are told to use the lessons of the Prohibition era to refine the current policy rather than throw up our hands and hopelessly assume that history can only repeat itself.

Proponents also note that the annual societal cost of tobacco and alcohol is 2.3 times that of prohibited drugs. Furthermore, the ratio of the annual deaths is close to 500:5 as between the two groups. Legalization of alcohol and tobacco has thus had serious effects on society, and there is good reason to assume that the legalization of presently illegal drugs would follow the same road, nullifying any or most predicted benefits from such action.

Furthermore, say proponents, legalization would increase the supply of drugs, thus lowering their prices and putting them within the economic reach of more people.107 At least one observer claims that this increase will be mostly among children.108 Alcohol use since the end of Prohibition tends to support the conclusion that legalization will increase the use of drugs.109 This assertion also seems to be supported by the rate of use of tobacco (1 :5) and alcohol (2:5) as well as the absolute number of users (46.3 and 105 million), which far outstrips that of prohibited drugs (1 :25 and 11.5 million).

Proponents of the current policy regarding illegal drugs argue that legalization and decriminalization of drugs in other countries has failed to deal with the problems that substance abuse causes. Opponents of the current policy see these experiences in a more favorable light.

Probably the most frequently cited country in this regard is the Netherlands. Proponents of the current policy argue that the de facto decriminalization of soft drugs was more the result of the absence of policy, and belated adaptation to already existing circumstances, than of any rational, well-considered action.110 "Drug tourists" from Germany, Belgium, Luxembourg and France flock to the Netherlands because of its permissive rules for soft drugs."111 By contrast, and cognizant as I am of the dangers inherent in making trans-national comparisons,112 I think it is fair to say that Dutch drug policy has generally been more successful than U.S. drug policy.113 Dutch drug policy has evolved in partial opposition to the internationally dominant ideology of prohibitionism. While fully in line with international control policies against wholesale drug trafficking, Dutch policy on drug use has sought de-escalation and normalization. Problematic drug use is accepted as an inevitable, but limited and manageable, social and public health problem of modern society. Harm reduction is the core concept; it is translated into extensive low level and non-conditional prescribing of methadone, social-medical assistance for drug users, large-scale free needle exchange programs, and the pragmatic acceptance of several "free zones" where the consumer drug market is left largely undisturbed.114

The average age of heroin addicts in the Netherlands has been increasing for almost a decade. HIV rates among addicts are dramatically lower than in the United States. Police do not waste resources on non-disruptive drug users but focus on major dealers or petty dealers who create public nuisances. The decriminalized marihuana markets are regulated in a quasi-legal fashion far more effectively and inexpensively than in the United States.115 The level of use in the Netherlands is substantially lower than in countries waging a "war on drugs" including the United States, and until recently, Germany. Among Dutch youths 17-18 years old, only 17.7% used marihuana at least once in their lives, compared to 43.7% in the United States. In fact overall, only 4.6% of the Dutch have used marihuana at least once in the past month, compared to 16.7% in the United States.

A dramatic comparison of the results of the Dutch and American policies can be seen in comparing some statistical data between Amsterdam and Baltimore. Amsterdam, which has a population of about 700,000 had between 5,000 and 7,000 addicts, which yields a rate of between 714 and 1,000 hard-core drug users per 100,000 population. Baltimore, with approximately the same population at 737,000, had at least 45,000 addicts, or 6,105 addicts per 100,000 population.116 In 1991, Amsterdam reported 20 residents dead from causes related to drug use, as compared to 269 reported in Baltimore.

Those who would maintain the current policy, though, point to other countries as well. For example, they note, in 1963 Great Britain instituted a policy of medical prescriptions to heroin addicts, but discontinued the policy in 1983 due to a 100% increase in the numbers of addicts and an increase in the crime rate, which was partially attributed thereto.117 Others point to the Swiss experiment in a Zurich park, which created a drug use zone. There the number of drug addicts increased from a few hundred in 1987 to over 20,000 by early 1992, of which about 20% were foreigners. In closing this experiment the authorities claimed an unacceptable increase in use, violence, crime and health costs. For another example, Spain and Italy, which have legalized the use of cocaine and heroin, but not distribution, have the highest rates of both drug use and overdose of all European countries.

Finally, in at least one of the United States, Alaska, decriminalization of marihuana, which took place in 1975, was deemed to be a failure. Notwithstanding a reduction in the daily teenage marihuana use nationwide of 75% since 1978,118 in Alaska it increased to twice the national average.119 In 1990, Alaska voted to re-criminalize the use of marihuana.

But opponents of our current policy have their own examples to cite. They point to the experience of the states that decriminalized the possession of small amounts of marihuana for personal consumption in the 1970's.120 There was no increase in the level of marihuana use in these states.121 Indeed marihuana consumption declined in those states just as it did in states that retained criminal sanctions against marijuana122 Similar results were experienced in the Netherlands, when marihuana consumption was decriminalized in 1976,123 and in the Australian state of South Australia, where that action was taken in 1985.124

The success of these programs has depended at least partially on law enforcement support.125 Unfortunately, such support is unlikely in the United States because the bureaucratic side of the law enforcement establishment has substantial economic self-interest in a $14.1 billion pie.126 One could cynically conclude that, although for different reasons, this puts the law enforcement community and traffickers in the same boat as far as the present discussion goes, i.e.., both groups are opposed to legalization.

5. Is the current policy basically fair in its application?127

Proponents of the current policy argue that, whatever problems in the current system, any change will work to the greater disadvantage of the least fortunate in society. Legalization, they argue, will lower the price of drugs. Since drug use among the poor is more sensitive to price reduction, a proportionately higher increase of person in those groups will use drugs as a result of legalization. In other words, legalization will increase drug use most among the poor, and there is an obvious link in this country between being poor and being a racial minority. Thus the poor generally, and racial minorities in particular, will feel the heaviest brunt of drug use's physical harm to users, as well as the secondary costs of increased crime, accidents, and public nuisances.

Opponents of the current policy argue that it produces much more profound unfairness in society than any program of decriminalization or legalization would create.

First, prohibition's enforcement has had a devastating impact on the rights of the individual citizen. The control costs are seriously threatening the preservation of values that are central to our form of government. The war on drugs has contributed to the distortion of the Fourth Amendment wholly inconsistent with its basic purposes. Particularly in the areas of search and seizure, we have seen major changes in the law brought about by Congress' and the courts' zeal to support the enforcement of drug prohibition. I will not make a full laundry list, but courts have allowed the issuance of search warrants in drug cases based on anonymous tips,128 have put in jeopardy the attorney-client relationship through the forfeiture of fees,129 and have permitted the use of the grand jury to inquire into the attorney-client relationship.130 Some of the most egregious actions committed by the government have been in the area of forfeitures in which courts have allowed abuses which seriously undermine principles of legality and due process.131

In the federal courts a regime established by Congress requiring the imposition of high mandatory minimum sentences and a series of non-discretionary sentencing guidelines have caused a substantial number of individual injustices. In my opinion the rule of law is debased by the imposition of disproportionate criminal sanctions.

As a judge, I am also struck by how much of the penalties for drug trafficking are imposed on others than those most culpable. For example, the importation and selling of drugs is controlled by one set of people, but it is implemented by quite another -- the so-called "mules," often poor people, conscripted to smuggle or sell drugs by powerful organizations. Depending on the preferences of the prosecutors, they are charged, tried, and convicted in what may be a futile attempt to reduce their numbers -- futile if, as I suspect, there is an inexhaustible supply of people willing to take a chance on drug dealing in order to make a little money. Although I would be the last to justify their commission of crimes for profit, the fact is that these people, who have little information to trade to the prosecutors, end up with heavy sentences, while in the scheme of things the "big fish," if caught at all, are able to work out deals with the government which may leave them with light sentences or even without any prosecution. This is something that goes beyond mere injustice in the inequality of treatment, it is essentially an immoral outcome which tarnishes our entire judicial system.

In leaving this point, let me add what may sound like an exaggeration, but for which I invite your considered ponderation. There are many cases in the history of humankind, some of recent vintage, in which citizens have been willing to give up their collective civil rights in the name of, and in exchange for, an illusory achievement of so-called law and order. Seen from one viewpoint, there undoubtedly was a large measure of law and order in Hitler's Germany or Trujillo's Dominican Republic. But in the long-run, the surrendering of fundamental principles in exchange for temporary peace has proven to be short-sighted. I do not say we have yet reached such a crossroads, but I do say to you that I detect considerable public apathy regarding the upholding of rights which have been cherished since this land became a constitutional Republic, when it comes to those accused of drug violations. Now I will grant you that people that sell drugs to children and the like are not very nice people, and I do not stand here or anywhere in defense of such heinous conduct. However, we must remember that we do not, and cannot, have one constitution for the good guys and another for the bad ones. Whenever we relax our fundamental standards to catch the latter, the net may have been stretched wide enough to include the former at some future date. I believe it is too high a price to pay, particularly in an attempt to patch the holes of an enforcement system that simply is not even working well.

Opponents also argue that the war on drugs has had a lopsided impact on minorities.132 The drug war has been a war in which non-whites are arrested and imprisoned at four to five times the rate of whites, even though most drug crimes are committed by whites.133 The racial impact of prohibition is further seen when one considers that one in three African-American males are imprisoned or under penal supervision for drug offenses.134

To these statistics we should add that seventy-three thousand African-Americans have drug related AIDS or have died from it and that among people who inject drugs, African-Americans are about five times as likely as whites to be diagnosed with AIDS. In fact, for African-Americans the risk of getting AIDS is seven times greater than the risk of dying from an overdose.135 At the very least legalization of drugs would eliminate or greatly reduce multiple-needle use, the principle cause of AIDS infection among African-Americans.

Tenative Conclusions

In the end, we must remember that no important ideological battle has been won solely because one side has better statistics than the other. Moreover, there are limits to our prudent reliance on statistics. What the hard sciences, and what the social sciences, proclaim as true in one age often turn out to be untrue based on further research. And thus we discard the policies based on those proclamations, only to find that additional research removes the scientific underpinnings for the new policies. Keep in mind, for example, that our society generally indulged alcohol consumption until fairly recently. Then the conventional medical wisdom began to counsel total abstinence, only to proclaim, even more recently, the benefits of moderate consumption, at least of red wine, in avoiding heart attacks. And before the Surgeon General's 1964 report on cigarettes, many authorities touted smoking's benefit as helpful to relieving stress. Not too long ago, sociologists and criminologists had great faith that many criminals could be rehabilitated and thus Congress provided very few restrictions on the criminal sentences judges could impose, in order to let parole authorities determine when inmates should be released. In the last 15 years, that whole model has been discarded.

The current policy regarding illegal drugs has apparently been set in stone by Congress without any intention of engaging in any further assessment of the issues raised by prohibition.

Thus in 1988 we were told in § 5011 of the Anti-Drug Abuse Act that:

The Congress finds that legalization of illegal drugs, on the Federal or state level, is an unconscionable surrender in a war in which, for the future of our country and the lives of our children, there can be no substitute for total victory.136

This rhetoric was followed by a proclamation in § 5252-B to the effect that: It is the declared policy of the United States to create a Drug-Free America by 1995.

No one seems to have noticed the passing of this deadline without its inflexible goal being even approximated, much less reached.

We must avoid the comfortable assumption that if only we can gather and analyze enough data, we will find the solution to our problems. Empirical evidence sheds important light on whether the present policies are de facto ineffective, but it will take more than empirical evidence for the people of this country to decide whether current policies are inconsistent with the principles of a democratic society and whether our democratic society is capable of assessing the profound policy problems that face it.

There are several difficult questions that are not readily answered by most proponents of legalization or criminalization, but which obviously are relevant to the problem. A non-exhaustive list includes:137 What forms of governmental regulation, if any, are appropriate instead of prohibition? To what degree, if any, should private distribution of drugs be permitted? As to importation, what controls are appropriate? Is a regulatory regime similar to one now used to control alcoholic beverages appropriate for all drugs? How should a new regulatory regime treat children, adolescents or pregnant women? What kinds of prevention and treatment programs should there be and how should they be funded? Much has to be considered and more answers should be available. Unfortunately, much of the public discussion of these issues has been shrouded in semi-hysteria not unlike the hysteria engendered by the McCarthy senatorial investigations about national security of the 1950s.

I believe that Judge Martin Haines' perceptive comments in an article in the New Jersey Law Journal138 are apropos:

[The] decades-long indoctrination of the public in the need for a drug war as the only solution to the very serious problem of drugs has had serious consequences. It has prevented the consideration of any clearly necessary, intelligent alternative to a war that has not worked. Few public officials dare to advance alternatives. Doing so threatens the loss of the next election, or the next appointment.

Conclusions

Based upon my experience as a judge and the relevant authorities that are quoted herein, the following are my tentative conclusions:

1. There is a mountain of conflicting evidence and views about the course to be taken. This demonstrates the imperative need for an objective multidisciplinary study to independently assess the facts, and recommend courses of conduct to be followed. This study should be carried out by a commission that is bipartisan, is appointed jointly by Congress and the Executive, and is composed of persons of unquestioned prestige. (Needless to say, this presidential election year is not the time for any such inquiry.) As part of this process there must be a truly national debate about this subject to create conscience and consensus about these problems. Most important, there is a need to keep an open mind about these issues.139 Lastly, we must act upon the recommendations made by such a body. Our political leadership needs the courage to let the chips fall where they may and to deal with them once fallen. A national referendum by secret ballot might be an appropriate way of determining the issue of decriminalization.

2. There is a need for pilot tests of some types of limited decriminalization, probably commencing with marijuana, and obviously not including minors.140 Any such tests should be sensitive that in treating people differently, even for test purposes, that their rights to due process and equal protection are not sacrificed.141

3. Chronic abuse of illegal drugs should be treated in a fashion similar to other chronic diseases, like alcoholism, and countermeasures appropriate to such health problems should be implemented to a fuller extent.

4. Pending the definitive study proposed, there should be a shift in the funding of enforcement efforts toward an intense educational campaign at all levels.142 The availability of funds to escalate treatment levels aimed at rehabilitation should also be greatly increased.

5. Prologue

Two balloonists drifting over Maine came upon a farmer digging potatoes. They called down, asking him where they were, but the farmer appeared not to notice them and continued digging. They insisted, "Hey you, where be we?" Without missing a stroke or looking up, the farmer answered, "In a balloon, you damned fools!"

Are we in a balloon, floating in a dream above reality, without a notion as to where we are or where we are going?

 

 
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