America's Longest War: Rethinking Our Tragic Crusade Against Drugs

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Stephen Duke: Steven B. Duke, LL.M has held the chair of Law of Science and Technology Professor at Yale Law School, where he has taught since 1961.Albert Gross: Albert C. Gross, J.D. is a professional writer specializing in social issues, technology, and athletics. He has practiced family law in San Diego County, California for several years.

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Overview

About the Author

Stephen Duke: Steven B. Duke, LL.M has held the chair of Law of Science and Technology Professor at Yale Law School, where he has taught since 1961.Albert Gross: Albert C. Gross, J.D. is a professional writer specializing in social issues, technology, and athletics. He has practiced family law in San Diego County, California for several years.

The hidden and forbidden truth about America's failed war on drugs is explored in this eye-opening book. The authors present a complete look at the real and imagined dangers of drugs, and call for a rethinking of policy. "A clear, heavily documented statement of the argument for declaring peace in the war against drugs."--Booklist

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Editorial Reviews

Publishers Weekly - Publisher's Weekly
The first part of this worthy book by Yale law professor Duke and California lawyer Gross reiterates powerful evidence about the abuse of legal drugs like alcohol, the failure of attempts at prohibition and the links between illegal drugs and our current crime wave. Adding a new layer of argument, the authors detail the costs to our criminal justice system, in which, they maintain, due process is regularly ignored. Duke and Gross make an intriguing case that the cost to individual autonomy posed by the prohibition of drugs is too high and they point out that ``almost any common activity produces abusers.'' Suggesting that reducing the drug supply is impossible and that eliminating demand through treatment and education, though a laudable goal, is equally impossible, the authors offer a sober assessment of the costs and benefits of legalization. Their proposal to legalize selected drugs, including cocaine and heroin, is based on an ultimate aim of ``responsible use'' akin to the country's policy toward alcohol. Only in the final page, however, do Duke and Gross acknowledge the importance of long-term solutions to the poverty and anomie that make the drug abuse problem in the cities so intractable. (Jan.)
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Product Details

  • ISBN-13: 9780874777888
  • Publisher: Penguin Group (USA) Incorporated
  • Publication date: 10/26/1994
  • Pages: 356
  • Product dimensions: 7.98 (w) x 6.00 (h) x 1.03 (d)

Read an Excerpt

America's Longest War

Rethinking Our Tragic Crusade Against Drugs


By Stephen B. Duke, Albert C. Gross

OPEN ROAD INTEGRATED MEDIA

Copyright © 2012 Stephen B. Duke and Albert C. Gross
All rights reserved.
ISBN: 978-1-4976-1201-3



CHAPTER 1

An Overview: The Greater Evil


"The chief cause of problems is solutions."

—Eric Sevareid


If there is a single key to understanding America's "drug problem," it is recognizing the difference between the costs of drug use per se and the costs of efforts to prevent drug consumption. Most of the current rhetoric obscures the difference. Those who want to step up the drug "war" typically attribute all the killings, bribery, corruption, and drug-related crime to the "drugs" themselves and the commerce in them. Those who believe in deescalating the war, or even legalizing drugs, on the other hand, often declare that the problem is not drug consumption itself, but rather the criminalization of drugs. The true problem, they assert, is not drugs but contemporary "solutions" to the "drug problem."

Neither position is completely correct. There are two components of the "drug problem," both of which are "but for" causes of our dreadful drug disease. The first is the human appetite for drugs and the costs of feeding that appetite. This is the baseline "drug problem" that would exist in a free market where the government took a neutral stance on consumption of and commerce in drugs. The second component is the effect or consequence of efforts to prevent commerce in drugs; the costs and casualties of the war itself, to revisit the military metaphor. Both components in combination are the cause of our current malaise. Neither alone accounts for anything, because neither exists alone. The claimants are right, however, in emphasizing the need, analytically, to separate the two parts of the problem. Understanding is otherwise literally impossible.


The Evils of Drug Consumption Per Se

Although we will return to most of these matters in detail later, a brief sketch of the evils of drug usage in a hypothetical free market is needed here, to clarify the issues to be discussed hereafter.


Adverse Effects on Physical Health

The specific health effects of particular recreational drugs are often hotly debated scientific questions, and we attempt to analyze the data and draw whatever conclusions are possible later in the book. At this point we simply note that some of the recreational drugs, such as tobacco and alcohol, commonly cause major long-term illnesses or life-threatening acute health crises for habitual users. Prolonged tobacco use causes cancer and cardiovascular illness, alcohol abuse causes cirrhosis of the liver and other illnesses, and cocaine, if snorted, can cause damage to nostrils and nasal membranes. If smoked, cocaine may cause lung damage. However consumed, cocaine can occasionally kill its user. Marijuana, if smoked, might cause lung cancer, although that has not been established. Marijuana is often blamed for genetic damage and suppression of the immune response, but the evidence warranting these concerns is weak.

The risks of psychoactive drug use are substantial but no greater than those accompanying many other recreational activities. The task for policymakers is to assess the relative risks of illegal drugs and compare those risks to others we take—or permit others to take—with hardly any qualms—hang-gliding, motorcycle riding, hunting, bicycle riding, boating, boxing, mountain climbing and so forth. Having made such comparisons, policymakers should then decide what we are willing to pay for efforts to reduce or control the risks of taking drugs. The risks are not nearly as great as is commonly supposed, nor can they be eliminated by prohibition. (In fact, the risks are increased by prohibition.)


Criminogenics

Promotion of public health is not the only basis on which drug prohibitionists attempt to justify the current distinctions between legal and illegal drugs. Prohibitionists also claim that certain drugs are "criminogenic"; that is, the use of those drugs directly causes the user to commit crimes. Our drug history is replete with fears and phobias on that subject. Cocaine, for example, was said to make African-American men bulletproof and inordinately dangerous. Opium was said to make the Chinese users sex fiends, and marijuana made murderers and rapists of Hispanic Americans. The facts are far more prosaic. There is no evidence that heroin or marijuana are at all criminogenic in this sense. If anyone ever "went crazy" on any of these substances and committed a violent crime, it has never been reliably recorded. Alcohol is another matter. There is evidence, albeit not as compelling as is popularly supposed, that alcohol contributes importantly to violent crimes such as murder, robbery and rape. It is clearly a causal factor in reckless and negligent homicide, especially when automobiles are involved.

The criminogenics of cocaine are unclear. It seems likely, however, that the depression, anxiety, and emotional instability often experienced by cocaine abusers is positively associated, in a causal sense, with crimes of violence. There is, however, a further complicating question: whether the criminogenic effects are directly attributable to cocaine intoxication, as in the case of alcohol, or are attributable instead to cocaine withdrawal. To the extent that violent crimes are traceable to cocaine withdrawal, they should be discounted if not disregarded, for in our hypothetical free market, involuntary withdrawal from cocaine would be uncommon. To consider the criminogenics of withdrawal as a cost of drug usage rather than of drug prohibition would make little more sense than to count the criminal consequences of tobacco withdrawal as part of the criminogenics of tobacco.


Accidents

One can hardly be unaware of the danger posed by abusers of alcohol and other drugs who drive cars, command oil tankers or operate other machinery. About 12,000 people are killed every year because an automobile driver was intoxicated.

The strongest case exists against alcohol, but some accidents are attributable to other drugs, including even tobacco.


Effects on Work and Incentives to Work

The conventional belief is that drug users—particularly users of illicit drugs—are an irresponsible, unproductive lot. There are, however, many difficulties in drawing inferences about cause and effect. Abusers of psychoactive drugs, whether legal or illegal, are also an unhappy lot. Some are mentally ill. The abuse of drugs may be a symptom of their depression and hopelessness, or a poorly managed self-medication.

The irresponsibility and apparent laziness of many drug abusers is due in some measure to the illegality of their drug use. Drug users who are paying $200 per day for their drugs can hardly be expected to work happily at a fast-food outlet for minimum wage. It is also impossible for many drug users to hold many of today's jobs, for their drug use would soon be discovered by testing. In addition, abusers of illegal drugs inevitably associate with others who condone their habits, and the subculture that does so largely rejects the values of Horatio Alger, Jr.

The anti-motivational effects of illegal drug use are, in any event, greatly exaggerated. Many, perhaps most, parents of teenagers who use illegal drugs are unaware that their children use such drugs. This is also commonly the case in marriages where one spouse secretly uses drugs. One can argue, of course, that family members do "know" at some level but are engaged in "denial." Even so, "denial" could hardly be such a common experience if the antimotivational effects of drug use were palpably obvious.


Effects on Quality of Life

When any substance is used excessively, the quality of life is diminished both for the users and those around them. No doubt many of the 10 million or so Americans classified as alcoholics would consider themselves better off if they did not drink to excess. The lives of many are wrecked by alcoholism, and the families of alcoholics are miserable. But 90 percent or so of the consumers of alcohol, who are not obsessed with it and who could give it up if strongly motivated, believe that alcohol makes a positive contribution to their happiness and even the happiness of their friends and families. Consumption of alcohol is deeply ingrained in the American culture, is part of many religious ceremonies, and accompanies—and lubricates—most celebrations, whether a national holiday, a wedding, or a dinner party.

Drugs that America regards as illicit provide equivalent pleasures to many, far greater pleasures to some, and this has been true for centuries, in most cultures. In fact, use of both opiates and cocaine was common among upright citizens in America and elsewhere in the latter half of the nineteenth century. Freud used cocaine and advocated it as a cure for fatigue, foggy thinking, and many other conditions. Several of our presidents, including perhaps even the abstemious Abraham Lincoln, also used cocaine. Ulysses S. Grant was apparently a user of both morphine and cocaine, as well as alcohol and tobacco.

We do not produce these examples to besmirch historical figures, but to show that it is the modern stigma attached to drugs—not any inherent quality of the chemicals—that makes their use shocking. As reported by Edward Brecher, when these drugs were legal and were as widely, if not more widely, used as they are today, few serious problems with their use were noted. Few users found such drugs to interfere seriously with the quality of their lives.

If the reader finds this difficult to accept, it may be because we have for so long associated the use of drugs with secretiveness, dishonesty, stealing and irresponsibility. But much of that is the result of criminalization. It is necessary to cover up what one is consuming, and to lie about it, if the consumption is criminal (and if one must associate with drug dealers in order to acquire it). It may also be necessary to steal in order to buy the drug if, as is the case with cocaine and heroin, it is very expensive.

Although the evidence is inconclusive, we think that the use of heroin and cocaine in a free market system would adversely affect the quality of the lives of the users and those around them in a way not appreciably different than does alcohol use. Roughly the same proportions of users would become abusers, and their abuse would be approximately as crippling to life's other enterprises as abuse of alcohol. But the total number of drug abusers in a free market system would not be essentially different than is the case in our hybrid system of legalization. In a free market system hardly anyone would be a drug abuser who does not already abuse at least one psychoactive drug. The negative contributions of marijuana would be far less than heroin, cocaine, or alcohol.


The Evils of Efforts to Prevent the Use of Drugs

Weighing against the evils of recreational-drug consumption are a multitude of evils caused by efforts to prevent drug use. Our drug-war approach relies heavily on criminalizing both sale and use of illicit drugs.


Global Evils

We now consider as a violator of American criminal law anyone who knowingly participates in any phase of the process whereby drugs are introduced into this country. Tens of thousands of Peruvians, Bolivians, Colombians, Burmese, Thais, Pakistanis, and Jamaicans are therefore technically guilty of American criminal offenses even though they have never come near our borders and would be surprised to learn that they are American criminals. This includes peasant farmers eking out a meager existence for their families as well as smugglers.

Our government has also become a kidnapper. Our drug agents have actually gone to South America, kidnapped suspected drug kingpins and forcefully brought them to the United States for trial. In the case of Manuel Noriega, we did it on a grand scale, sending our army to invade Panama, in part for the unprecedented purpose of kidnapping the leader of another sovereign nation and bringing him to the United States for trial.

We engage in extensive and costly efforts to persuade foreign authorities to arrest and extradite their citizens who have violated our drug laws. Sometimes we succeed. We even urge the governments of these countries to prosecute their drug producers under their own laws, and to eradicate their crops, destroy their labs, and otherwise to make it costly for drug producers or exporters to operate. The result of these activities is to force the major drug producers to create their own armies and to terrorize the officials of their countries into permitting their continued operation. The governments in country after country in South and Central America are perpetually destabilized.


Interdiction Evils

Drugs produced elsewhere for our markets have to clear our border. That is not difficult. Most authorities estimate that at least 90 percent of the illicit drugs destined for the United States are successfully smuggled into the country. But the smuggling process, involving high-tech boats and airplanes, sophisticated secretion of the drugs, and counterintelligence that often involves bribery of our officials, is also very costly. Once the drug actually crosses our border, its caretakers, consignees, and purchasers on this side of the border are under much greater risk of being caught, convicted, and imprisoned. As a result, the free market price of cocaine and heroin is increased between 70 and 140 times! Imported commodities that would cost in toto perhaps a hundred million dollars in a free market cost $60 to $100 billion under prohibition.

The money spent by Americans on imported drugs is hard for the smugglers to get out of the United States. Moreover, America is still a pretty good place in which to invest and a wonderful place in which to spend and enjoy wealth. Consequently, the drug importers try to keep a substantial portion of their funds in the United States. They need banks to cooperate, either to get the money out of this country or to convert it into usable forms if left here. Hence, the money launderers who help smugglers disguise their funds as legitimate. Since money laundering is a crime, recruiting and maintaining money launderers is expensive. Getting the money out of the country without having it confiscated is also costly and often involves bribery. The entire process corrupts and burdens domestic and international financial systems.

To make the smuggling of drugs more costly and less attractive, we punish money launderers, but to the extent we are successful, we help to push the money out of our banks and out of our industries. The money is either stashed away or physically exported in trucks, planes, ships, and cars to other countries. We thus deprive ourselves of billions of dollars of potential investments.


Corruption Costs

What is the result of all this money flowing in illegal, clandestine channels among armies of criminals whose lives are under constant threats from within or without? Corruption of policemen by the hundreds. Prosecutors, judges, legislators, lawyers, bail bondsmen, witnesses, jailers are all under great corrupting influences, and many succumb. Our federal judges are among the least corruptible in the world; scandal rarely touches them, yet U.S. district judge Robert Collins was recently convicted of accepting bribes in a drug case, and U.S. district judge Walter Nixon was convicted of perjury in a drug-case investigation.

Only one time before in our history was corruption of our law-enforcement officials arguably a more serious problem, and that was during our efforts to enforce alcohol prohibition. The corruption during Prohibition may have been greater than it is now, but there are reasons to fear that we will eventually exceed that level if we continue on our present course. Illegal-whiskey merchants during Prohibition were not under constant threat of death from their competitors—except in Chicago and a few other places—and the threat of long prison terms was not nearly as great either. Nor was the money nearly as plentiful. Both the utility of and the opportunity for bribery were therefore more limited than is the case today.


Crippling Our Criminal Justice System

This comprehensive process of intensive criminalization, our "war on drugs," undermines our criminal-justice process. It diverts resources needed by police, prosecutors, and courts for dealing with other crime, thus exacerbating our crime problems. It generates billions in cash that makes murderers out of otherwise petty criminals. Those who are not moved by money to murder are motivated to commit it to silence witnesses and otherwise to defeat the efforts of law enforcement. The indirect cause is, ironically, the very same force that ostensibly wants to protect witnesses: the law enforcement enterprise.

Treating illicit-drug distribution as tantamount to treason, the attitude embraced by the most ardent drug warriors, undermines the rule of law and the freedom of nonusers in myriad ways. Shortcuts and circumventions of the Constitution are overlooked in the name of drug-war necessity, and criminal convictions in drug cases are subjected to little scrutiny. Rights of individuals to privacy of their homes, effects, and persons are routinely subordinated to the interests of the government in carrying out the drug war.


(Continues...)

Excerpted from America's Longest War by Stephen B. Duke, Albert C. Gross. Copyright © 2012 Stephen B. Duke and Albert C. Gross. Excerpted by permission of OPEN ROAD INTEGRATED MEDIA.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

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Table of Contents

Acknowledgments
Foreword
Preface
Ch. 1 An Overview: The Greater Evil 1
Ch. 2 Identifying the Enemy: "Drugs," "Drug Abuse" And Other Concepts 12
Ch. 3 Our Most Harmful Legal Drugs 22
Ch. 4 Our Most Popular Illegal Drugs 43
Ch. 5 Lessons from the Past 78
Ch. 6 The Crime Caused by Prohibition 103
Ch. 7 Freedom Costs 122
Ch. 8 Autonomy Costs 146
Ch. 9 Social Costs 160
Ch. 10 Health and Safety Costs 181
Ch. 11 The Drug War Cannot Succeed 200
Ch. 12 The Legalization Option 231
Ch. 13 Forms of Legalization 250
Ch. 14 A Harm Minimization Approach 279
Notes 307
Index 337
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