busted: america's war on marijuana
One Judge's Attempt at a Rational Discussion: Footnotes
1 Fuentes, The Buried Mirror: Reflections on Spain and The New World, Hougton Mifflin Co. (New York, 1992), at 8-9.

2 See Canons 2 and 3(6), Code of Conduct for United States Judges.

3 But see, remarks by Robert W. Sweet, U.S. District Judge for Southern District of New York in compendium entitled 'The War on Drugs is Lost," National Review (February 12, 1996), at 44 45.

4 Id., Canon 4.

5 I should also point out that in describing government policy, what it has or has not accomplished, and whether it should be changed, we must keep in mind that drug use responds to numerous stimuli, public and private, including changing social mores, health prescriptions, demographics, and other similar factors.

6 These are status quo, legalization/decriminalization, preventive non-incarcerative sanctioning, treatment, taxation and regulation.

7 I define "psychoactive drug" as a substance, other than food, intended to affect the structure or function of the body. See Webster's, at 695; Black's Law Dictionary, at 446; and 21 U.S.C. § 321(g)(1)(C). By "psychoactive" is meant a drug that works directly in, and on, the brain to change the way it functions.

50 Evans, "The Many Forms of Legalization: beyond 'Whether to How,"' in The Great Issues in Drug: Policy, Treback & Zeese (ed.), Drug Policy Foundation (Washington, D.C. 1990).

51 See Trebach, Legalize it?, at 79.

52 Id. at 80.

53 Meese, "Drugs, Change and Realism: A Critical Evaluation of Proposed Legalization," Searching for Alternatives supra at 290.

54 Melvin Levitsby, a former Assistant Secretary of State for International Narcotic Matters, defends the federal government's drug policy as working on both the supply and demand side. See his views in Searching for Alternatives. n.50. See also Inciardi, "Against Legalization of Drugs," in Legalize it? . . .' supra, at 161.

55 Information received from a private interview with highly placed DEA officials. It is estimated that less than 10% of the drug contraband into the United States is interdicted. See also Clifton, "The Criminalization of Drugs," 32 Court Review 114, 115, American Judges Association (Winter 1995).

56 "Reno Questions Funding of Drug Interdiction Efforts", Los Angeles Times. May 8, 1993.

57 It is estimated that at least 40% of all property crime in the United States is committed by illegal drug users to support their habits. Ostrowski, The Moral and Practical Case for Drug Legislation, 18 Hofstra L. Rev. 607, 647 (1990).

58 Schulhofer, Solving the Drug Enforcement Dilemma: Lesson from Economics. 1994 U. Chi. Legal F. 207.

59 McNamara, "The War on Drugs is Lost," supra, at 42.

60 McNamara, "The War on Drugs is Lost," supra, at 42.

61 Buckley, id, at 36.

62 See Schulhofer, Solving the Drug Enforcement Dilemma: Lessons from Economics, University of Chicago Legal Forum (1994),207.

63 See, Ethan Nadelmann in Searching for Alternatives, supra, at 243. But see, Joel Hay, id, who espouses swift and certain punishment of casual drug users, rather than legalization.

64 "The War on Drugs is Lost," National Review (Feb. 12, 1996) at 44.

65 Bishop, Front in Marihuana War: Business Records, The New York Times (May 24, 1991), at B6.

66 Oregon, 1973 (ch. 680, pp. 15, 21, 22, July 1973); Alaska, 1975 (ch. 12, p. 12, Oct. 1975); Maine, 1975 (ch. 499, at 1368 (effective March 1, 1976); California, 1975 (ch. 248, p. 641, July 9, 1975); Colorado, 1975 (ch. 115, pp.433-437, July 1, 1975); Ohio, 1975 (No. 300, p. 2324, July 1, 1976); Minnesota, 1976 (ch. 42, p. 101, March 11, 1976); Mississippi 1977 (ch. 482, p. 922, July 1, 1977); New York, 1977 (ch. 360, June 29, 1977); North Carolina, 1977 (ch. 862, p.1178, July 1, 1977), and Nebraska, 1978 (Bill 808, p. 817, April 20, 1978).

67 D. Chiara & Gulliber, Dissonance and Contradictions in the Origins of Marihuana Decriminalization, 28 Law & Society Rev. 41,45 (1994).

68 Id.

69 The United States already has a higher proportion of its population incarcerated than any other country in the world. See Wollstain, Turning the Tide: Winning Public Support for Ending Drug Prohibition, in NEW FRONTIERS IN DRUG POLICY 90 (1991). Grinspoon & Bakalar, The War on Drugs - A Peace Proposal, 300 New. Eng. J.

Med.357, 357 and n.2.

70 Clear, Tougher Is Dumber, The N.Y. Times (Dec. 12, 1993), § 1, at 21.

71 Rosenbaum, "Just Say What" An Alternative View on Solving America's Drug Problem," National Council on Crime and Delinquency, San Francisco (1990).

72 Senior economist with the Rand Corporation. See Reuter, "On the Consequences of Toughness," Searching for Alternatives, supra. 138 et seq., at 151.

73 Steven Jonas, "A Symposium on Drug Decriminalization," 18 Hofstra L. Rev. 457 (1990); see also Besteman, "American Drug Policy and the Legalization Debate," 32 Am. Behavioral Sc.227 (1989).

74 See Sweet and Szasz, in The War on Drugs is Lost supra, at 45,4547.

75 Kleiman, "The Optimal Design of Drug-Control Laws," Searching for Alternatives, supra. at 193.

76 Hay, "The Harm They do to Others: A Primer on the External Costs of Drug Abuse," Searching for Drug Alternatives, supra 201, at 215.

77 Id. See also Peterson, "Legalization: The Myth Exposed," in Searching for Alternatives' at 324; Colosanto, "Widespread Opposition to Drug Legalization," Gallup New Service Poll, Vol.54, No.35 (January 17, 1990).

78 Drug Policy Foundation, "Milton Friedman talks about Liberty and Drug Policy," The Drug Policy Letter (Winter 1992), at 4.

79 See "War on Drugs" Seen as a Threat to Constitution. Minorities, 49 Crim. L. Rep. (BNA) at 1477 (Sept. 4,


80 The German courts have held it is unconstitutional on equal protection and privacy grounds for the government to allow the use of some intoxicants such as alcohol, while criminalizing others, such as marihuana and hashish. See Kinzer, German Court Allows Possession of Small Amounts of Marihuana New York Times, May 3, 1994 at A12. For a similar analysis, see Tribe, American Constitutional Law § 15-7 at 1325-26 (2d ed. 1988).

81 Schmoke, "The War on Drugs is Lost," The National Review, February 1, 1996, at 40.

82 Friedman, "The War We are Losing," in Searching for Alternatives, Krauss & Lazlar (ed.), Hoover Institution Press, Stanford, California (1991), Fig.3.1 at 56, 55-57.

83 Ostrowski, Thinking about Legalization. Cato Institute Policy Analysis No. 121 (May 25, 1989), at 1.

84 See Ostrowski, The Moral and Practical Case for Drug Legalization. 18 Hofstra L. Rev. 607, 650 (1990).

85 Trebach, Legalize it? .... supraat 120.

86 Id.

87 Id.

88 Friedman, supra at 57, 67. The average homicide rate during the 1950's was 4.8 per 100,000 population; 5.7 in the 1960's; 9.5 in the 1970's; and 9.1 in the 1980's. Id., Fig.3.1 at 56.

89 See McNamara, "The War on Drugs is Lost," National Review, Feb. 12, 1996, at 43.

90 Office of the National Drug Control Strategy, National Drug Control Strategy. U.S. Government Printing Office, Washington, D.C. (1989) at 2.

91 Arrest for simple possession of marihuana is the fourth most common cause of arrest in the United States. Grinspoon & Babalar, The War on Drugs: A Peace Proposal, 330 New Eng. J. Med.357, 357 n.2 (1994).

92 Alcohol taxes collected in 1994 totaled $33.9 billion ($6.8 billion for domestic alcohol excise taxes, $27 billion on inventories held, and $110.6 million special occupational tax)and approximately $5.82 billion in tobacco taxes ($5.8 billion in tobacco excise taxes and $2.6 million in floor stock taxes) Testimony of John W. Magon, Director of The Bureau of Alcohol, Tobacco and Fire-arms, before the U.S. Senate Subcommittee on Treasury (March 23, 1995).

93 See Legalize it? .... , supra., at 1 98.

94 Buckley, National Review. "The War on Drugs is Lost," at 37 (Feb. 12, 1996).

95 Renowned scientist and professor of pharmacology, toxicology and pharmaceutical chemistry at the University of California (San Francisco).

96 Id.

97 Id.

98 MacDonald, "Marihuana Smoking Worse for Lungs," 259 J. Am. Med. Ass. 3384 (June 17, 1988); Chiang and Hawks (eds.), Research Finding on Smoking of Abused Substances' National Institute on Drug Abuse, Rockville, Md. (1990).

99 Hendrix, Hass, Sanger, Ellner & Ulman, Living High: Daily Marihuana Use Among Adults. Human Science Press, New York (1987).

100 Rosenthal, "The Logic of Legalization: A Matter of Perspective," Searching for Alternatives, at 233-34.

101 Searching for Alternatives, supra.

102 Schmoke, ante.

103 McAuliffe, Health Care Policy Issues in the Drug Abuse Treatment Field, 15 J. Health Poll Pory &: L. 357, 361 (Summer, 1990)

104 Moore, Actually, Prohibition was a Success, 2-IIHS Status Reports 25(1).

105 Journal of American Academy of Arts and Sciences (Summer 1992).

106 Trebach, Legalize it? . . ., supra, at 109-10.

107 See Grossman, Becker & Murphy, Rational Addiction and the Effect of Price on Consumption," in Searching for Alternatives - Drug Control Policy in the United States? Hoover Institution Press (1991) at 77 (citing a study of cigarette addiction and concluding that addictive substances are very responsive to price. The conclusion with cigarettes was that a 10% decrease in price yields between 7% and 8% increase in demand.). But see contrary conclusion reached by Jeffrey Minon in Searching for Alternatives, supra who (contends that data from the Prohibition era leads to the conclusion that drug legalization will cause only a small increase in drug usage). The Drug Policy Foundation Advising Board found as a result of a national poll that if there is a repeal of prohibition only 9.6% of the adult population might try marihuana and 1.7% might try cocaine. See Dennis, "The American People are Starting to Question the Drug War," in The Great Issues in Drug Policy, Trebach & Zeese (ed.), Drug Policy Foundation (Washington, D.C. 1990)

108 Paul Taubman, "Externalities and Decriminalization of Drugs," supra., at 90.

109 After the repeal of Prohibition, consumption of alcoholic beverages increased by substantial amounts. Mark H. Moore and Dean R Gerstein, Alcohol and Public Policv: Bevond the Shadow of Prohibition, Wash. D.C., National Academy Press (1981).

110 de Kort, "The Dutch Cannabis Debate," 24 Jour. Drug Issues 417 (1994).

111 See Simon, Drug Floodgates Open. Inundating the Dutch, The New York Times (April 2O, 1994), at A4.

112 See generally Drug Policies in Westem Europ,! (H. Albrecht & A. Van Kolmthout, eds.1989) Max Planck Institute for Foreign and Alliterative Penal Law, Freiburg, Gemnany (1989). See also Treback and Inciardi, Legalize It? Debating American Drug Policy, The American University Press (Wash., DC, 1993), at 9-12.

113 See generally Between Prohibition and Legalization: The Dutch Experiment in Drug Policv, Levin & Marshall (eds.), Kugler Publications (Amsterdam, 1994), at 116, 226-29.

114 See "Between Prohibition and Legalization: The Dutch Experiment in Drug Policy," Studies on Crime and Justice, Marshal-I-Haens (ed.), Kugler (Amsterdam, 1994). See also Dunkel, "The Development of Drug Related Crime and Drug Control in Germany," 16 Int'l J. Comp. & Applied Cr. Just. 1 (1992).

115 Nadelmann, The War on Drugs is Lost, The National Review (Feb. 12, 1996), at 39.

116 A drug policy letter (Nov. 1993).

117 Drug Legalization: Myths and Misconceptions, DEA, U.S. Department of Justice (1994). But see Judson, Heroin Addiction in Britain: What Americans Can Learn from the English Experience, Harcourt (New York 1974), for a different view.

118 National Institute of Drug Abuse, National Trends in Drug Use. 1975-1986; National Household Survev: 1988.

119 Department of Health and Social Services, The State of Adolescent Health in Alaska, Office of the Commissioner, Juneau, Alaska (May 1990); Bernard Segal, Drug Taking Among Alaskan Youth. 1988: A Follow-up Study. University of Alaska, Anchorage (November 1988).

120 See The Record. supra, at 548.

121 Except Alaska, see ante at 28.

122 Nadelman, Isn't it Time to Legalize Drugs?, The Boston Sunday Globe (October 2, 1988), at A23.

123 Id. See also Henk Jan van Vliet, The Uneasv Decriminalization: A Perspective on Dutch Drug Policy 18 Hofstra L. Rev. 717 (1990).

124 Morgan, Riley & Chesher, Cannabis: Legal Reform. Medicinal Use and Harm Reduction. in Psychoactive Drugs and Harm Reduction (1993), p.31.

125 Dr. Chiara and Golliher, Dissonance and Contradiction in the Origins of Marihuana Decriminalization, 28 Law Surety Review, 41, 70 (1994).

126 See The Record, supra at 535 ("These agencies have ample motivation to exaggerate or distort the extent and danger of 'drug abuse' so as to justify (and thereby insure) their continued existence.").

127 See Grossman, supra, at 82.

128 See, e.g., Illinois v. Gates. 103 S. Ct. 2317, 2327-28 (1983) (upholding warrant isssued based on a partially corroborated anonymous tip, and noting in dicta that an anonyTnous tip or letter of 'sufficient detail' based on the totality of the circumstances, it could by itself support a finding of probable cause); United States v. Johnson. 64 F.3d 1120, 1124 (8th cir. 1995) (noting that if an anonymous tip is predictive in nature, if the prediction is true, the tip is corroborated sufficiently to create reasonable suspicion to justify a search); United States v. Williams, 3 F.3d 69, 72 (3d cir. 1993) (emphasizing fact that anonymous informant was the housekeeper justifies police reliance in her information in affidavit to obtain warrant); United States v. Bishop 890 F.2d 212, 215 (lOth Cir. 1989) (upholding FBI agents' obtaining of warrant based on anonymous tip under the 'good faith exception" adopted by the Supreme Court in Leon); United States v. Martinez 764 F.2d 744, 745 (l0th Cir. 1985) (affirming under "totality of the circumstances a magistrate's finding of probable cause to issue a search warrant based on an anonymous tip).

129 See, e.g., United States v. Nichols. 841 F.2d 1485, 1507 (10th Cir. 1988) (construing provisions of the Comprehensive Forfeiture Act of 1984 as allowing the freeze of assets needed to pay for a defendants counsel of choice); In re Forfeiture nearing as to Caplin & Drvsdale.837 F.2d 637, 646 (4th cir. 1988) (en bane).

130 In re Grand Jury Subpoenas, 906 F.2d 1485, 1498 (10th Cir. l99O) (concluding that attorney fee information regarding representation of instant drug defendants is not subject to the attorney-client privilege and its disclosure does not violate realtors' clients' rights to counsel); United States v. Saccoccia 898 F. Supp. 53, 62 (D. RI. 1995) (concluding that the government should be allowed to depose counsel and require that they produce relevant documents for the purpose of determining the amount, form and source of payments made to counsel in connection with representation of drug defendants).

131 See Application of Kinsely, 802 F.2d 571 (1st Cir. 1986)

132 American Bar Association, New Direction for National Substance Abuse Policy, 15 (1994). See also James Ostrowski in Searching for Alternatives, supra.

133 McNamara, The War on Drugs is Lost, "National Review," (Feb. 12,1996), at 43; Public Health Service, U.S. Dept. Of Health and Human Services, Substance Abuse and Mental Health Statistics Sourcebook (1995), at 62 (In 1993 illicit drug users were 74% white, 14% black and 9% Hispanic)

134 Id.,

135 Dr. Dawn Day, Health Emergency: The Spread of Drug-Related AIDS among African-Americans and Latinos (1995).

136 The Anti-Drug Abuse Act, Pub. L. No. 100-690, § 5011 (1988).

137 See "A Wiser Course: Ending Drug Prohibition," Association of the Bar of the City of New York, 49 The Record 521, 525 (June 1994).

138 Haines, Drug: War: America's War of Self Deception. New J. L. J. (June 21, 1993), at 20.

139 See Lewis, "Futility of the Drug War," The New York Times (Feb. 5, 1996), at A-15.

140 An Analysis of Marihuana Policy, National Research Council, National Academy of Sciences Press (Wash., DC, 1982), at 16-30; Drug Use in America: Problem in Perspective, U.S. Government Printing Office (Wash., DC, 1973), at 458; Report of the National Commission on Marihuana and Drug Abuse, 1973, at 458; Report of the Indian Hemp Drugs Commission (1894), cited in Treback, Legalize It?..., supra, at 103-104.

141 See Experimentation in the Law: Report of the Federal Judicial Center Advisory Committee on Experimentation in thee Law (1981).

142 Incardi and McBride, Americal1 Drug Policy, supra; Schulhoper, supra.


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