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Why Our Drug Laws Have Failed

Why Our Drug Laws Have Failed

5.0 6
by James Gray

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Editorial Reviews

Publishers Weekly - Publisher's Weekly
As provocative and topical as the film Traffic, here's a scathing jeremiad against the war on drugs, notable both for the author's position and for the sustained anger of its argument. Following his career as a federal prosecutor and a trial judge, Gray, now a California Superior Court justice, is struck by the revelation that the so-called war on drugs was "wasting unimaginable amounts of our tax dollars, increasing crime and despair and severely and unnecessarily harming people's lives... the worst of all worlds." He effectively documents a growing coalition of often conservative lawyers, legislators and justices who view the drug war's impotent dream of national abstinence as folly and its shadow effects (from imprisonment of nonviolent offenders to diversion of law enforcement resources) as dangers to liberty. Gray writes with the courage of his convictions, bluntly addressing the most controversial elements of the drug war. For example, he asserts that politicians offer slavish loyalty to the drug war because it is "fundable," not because it is winnable. Similarly, Gray details how drug prosecutions have both whittled away at constitutional protections and corrupted many police agencies. He even takes the radical step of humanizing drug users. Without assuming a libertarian stance, he establishes that the risks to an individual who is determined to use drugs are dwarfed by the harm caused to the community by overaggressive policing and the criminal economy. Gray's crisp prose is mercifully short on legalese, and his book has the structural clarity of an accessible legal text. This quality, and the sensible passion of Gray's conclusions, will make this a crucial reference for those politicians, voters, activists and law enforcement agencies seeking to reform established policy. (Apr.) Copyright 2001 Cahners Business Information.

Product Details

Temple University Press
Publication date:
Product dimensions:
6.20(w) x 9.22(h) x 0.97(d)

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Chapter One

Past and Present

People think they can stop the drug traffic by putting people in jail and by having terribly long sentences. But, of course, it doesn't do any good.

Senior Judge Whitman Knapp, United States District Court, New York, New York

The results of our country's Zero Tolerance Drug Prohibition policy are multifaceted, overlapping, and overwhelmingly negative. We will see from an historical perspective that Drug Prohibition had its beginnings way back in 1913 and has become accepted in our everyday lives. Its failings have for the most part been unquestioned. Throughout the twentieth century, recreational drug usage has waxed and waned, but hard-line drug usage has remained proportionally about the same.

    The common theme throughout this country's history of Drug Prohibition is that the federal government has been increasingly active, but both federal and state governments have continually passed tougher and tougher laws. With each upping of the ante, however, the situation has become worse. To the old saying that enforcing prohibition always leads to violence, corruption, and crime, it can be added, at least in this instance, that it has also resulted in the creation of an enormous bureaucracy—a prison-industrial complex—and it has thrived. This bureaucracy has been funded by unimaginable amounts of money and has become jealous of its power and scornful of people who ask questions about it.

An Historical Perspective

I sit there on the bench and send these small dealers, who are black, off toprison for years and years and years. And they look at you almost uncomprehendingly. They don't even know why we're mad at them.

Presiding Judge James Ford, Superior Court, Sacramento, California

The first laws addressing any of the currently illicit substances were passed during colonial times, and they required the various townships to grow a certain amount of cannabis sativa, or hemp, based on the size of their populations. Hemp is the stalk of the marijuana plant, but it has no psychotropic properties whatsoever. The stalk consists of threadlike fibers and bits of "hurd" or pulp, and during colonial times it was put to a wide variety of uses. For example, the sails on the U.S.S. Constitution (Old Ironsides) were made from hemp. Several drafts of the Declaration of Independence were printed on parchment made from the same natural substance. Hemp was also widely used in the making of rope, textiles, and gunny sacks, and was even used as money from 1631 until the early 1800s. George Washington, Thomas Jefferson, and a large number of famous planters in the colonial period all grew large crops of hemp, and Benjamin Franklin was one of the most active hemp paper merchants.

    The first prohibitionist laws in our country were passed during the last years of the nineteenth century. These were state and local ordinances that limited commerce in cocaine, marijuana, and opium, and were fundamentally racist laws aimed at perceived threats to white women from drug usage by black, Mexican, and Chinese men, respectively. In 1875, for example, the city of San Francisco, claiming that Chinese men drugged by opium were bent upon drawing white women into moral depravity, passed an ordinance prohibiting the smoking of opium in smoking houses or "dens." Otherwise no laws addressed any currently illicit substance until 1906, when the most effective law dealing with psychotropic substances in United States history was passed. This was the federal Pure Food and Drug Act.

    Narcotics addiction during the nineteenth century was primarily accidental. The first main cause of addiction was the liberal usage of morphine and opium as painkillers by mostly northern military hospitals during the Civil War. The hospitals in the South mostly used whiskey because they were not as well financed as those in the North. However, due to the wide availability of and ignorance about these drugs in the North, many war veterans who began using narcotics for legitimate medical reasons often became addicted. In fact, drug addiction during this period was often referred to as the "soldiers' disease."

    The second cause of accidental narcotics addiction was the widespread use and availability of patent medicines, otherwise known as elixirs or "snake oils." These substances were advertised as a "cure for whatever ails you" and, since they were often loaded with large doses of cocaine or morphine, they usually made the user temporarily feel a whole lot better. As a result many people, including a large number of middle-class agrarian housewives, became addicted to narcotics. Cocaine was also an ingredient in the soft drink Coca-Cola from 1886 until 1900, and Bayer Pharmaceutical Products introduced heroin in 1898 and sold it over the counter for a year before marketing aspirin.

    The Pure Food and Drug Act of 1906 led directly to the demise of the patent medicine industry, not by prohibiting these substances, but simply by requiring that all medications contain accurate labeling of their contents. Subsequent amendments to the act required the labels to contain accurate information about the strength of the drugs and to state that federal purity standards had been met. This act, combined with various governmental educational efforts encouraging people not to use any medications containing narcotics, resulted in a prompt, substantial, and permanent decline in the sales of these products.

    Unfortunately for those already addicted, and even though the problems created by drug abuse were not considered to be particularly serious at that time, the benefits of the Pure Food and Drug Act were virtually eradicated by the passage of the Harrison Narcotic Act in 1914. This was a measure requiring registration, payment of an intentionally inflated tax, and filling out of intentionally cumbersome order forms before anyone could import, sell, or give away opium, cocaine, or any of their derivatives. The Harrison Act, along with the U.S. Supreme Court decision in Webb v. United States, which held that it was illegal for doctors to dispense prescription drugs to alleviate the symptoms of narcotics withdrawal, inaugurated the Drug Prohibition era in which we still live. As a result, people, including those who were already accidentally addicted to these drugs, were forced to turn to the criminal black market in order to obtain these substances.

    Soon only adulterated, unlabeled, and contaminated drugs were available to the public, and at prices that were many times higher than what they had been before. As the editors of Consumer Reports concluded, this "withdrawal of the protection of the food-and-drug laws from the users of illicit drugs ... has been one of the significant factors in reducing addicts to their present miserable status, and in making drug use so damaging today." Thus our country was launched into wide-scale criminal activity, both by sellers, in order to make inflated underground profits, and by users, in order to obtain the money to buy the now higher-priced drugs. Clinics that had worked effectively with addicted people were closed; clinical experiments and research dealing with narcotics addition were abandoned; and public fear and misinformation increasingly demonized all people who used any of these now illicit drugs. As far back as 1953, Rufus King, chairman of the American Bar Association's committee on narcotics, succinctly summarized the results of our country's drug policy since the passage of the Harrison Act, when he said:

So long as society will not traffic with [the true addict] on any terms, he must remain the abject servitor of his vicious nemesis, the peddler. The addict will commit crimes—mostly petty offenses like shoplifting and prostitution—to get the price the peddler asks. He will peddle dope and make new addicts if those are his master's terms. Drugs are a commodity of trifling intrinsic value. All the billions our society has spent enforcing criminal measures against the addict have had the sole practical result of protecting the peddler's market, artificially inflating his prices, and keeping his profits fantastically high. No other nation hounds its addicts as we do, and no other nation faces anything remotely resembling our problem.

    In the meantime, pressure had mounted for the prohibition of another dangerous and sometimes addicting drug: alcohol. With the passage of the Eighteenth Amendment, Alcohol Prohibition went into effect nationwide on January 16, 1920. From that time until the repeal of Alcohol Prohibition with the passage of the Twenty-First Amendment in 1933, the United States saw a material increase in death from poisoned liquor, crime, violence, and corruption. It also saw a higher consumption per capita of stronger beverages like whiskey than of weaker beverages like beer, in accordance with a cardinal rule of prohibition: there is always more money to be made in pushing the more concentrated substances. In many cities there were actually more "speakeasies" during Alcohol Prohibition than there previously had been saloons.

    Not surprisingly, federal funding for law enforcement efforts was increased from $2.2 million in 1920 to $12 million in 1929, and the federal prison population increased between 1920 and 1932 from 3,000 to 12,000, with two-thirds of inmates incarcerated for alcohol and other drug offenses. Interestingly enough, the federal murder rate, which had been rising steadily throughout Alcohol Prohibition, decreased for eleven consecutive years after its repeal.

    The prohibition of marijuana in the United States was also deeply rooted in racial prejudice. A wave of poor immigrants from Mexico and Central America during the 1920s was accompanied by stories of violent rampages by Spanish-speaking aliens crazed by marijuana, the "killer weed." The other motivating factor behind marijuana prohibition appears to have been the substitution in the public mind of the effects of drugs they knew about, like morphine and cocaine, for the effects of marijuana, since the actual properties of marijuana were generally unknown.

    The United States Bureau of Narcotics, under the direction of its commissioner, Harry J. Anslinger, took an active role in spreading this fear and misinformation, with an eye toward convincing both the state and federal governments to pass laws of marijuana prohibition. The movie Reefer Madness, for example, was produced in 1936 with the close collaboration of the Bureau of Narcotics, which was the direct predecessor of the Drug Enforcement Administration. This movie tells the story of how "one puff of pot can lead clean-cut teenagers down the road to insanity, criminality, and death." Although Reefer Madness was intended to educate the public about the "horrors of narcotics," it is now seen as unintentionally quite funny, except in the historical context. Similarly Commissioner Anslinger himself submitted an article entitled "Marijuana: Assassin of Youth" to American Magazine, which published the article in July 1937. This article told the lurid tale of a quiet young man who had become a "marijuana addict" and then proceeded to kill his entire family of five with an ax while "pitifully crazed" on marijuana. Similar highly questionable articles, "culled from the files of the U.S. Bureau of Narcotics," were published frequently.

    As a result of these tactics, many states passed marijuana prohibition statutes; and in some cases, the tactics were so successful that the prohibitionist statutes actually mis-designated marijuana as a narcotic. Since little was known about the substance and no scientific studies had been conducted, since there was a fear that marijuana use would spread even to whites as a substitute for opiates and alcohol, and since wild stories in newspapers and magazines made it easy to prohibit a substance that was associated only with politically powerless ethnic minorities and the lower classes, legislators had no difficulty passing these "non-controversial" prohibitionist laws.

    Soon Commissioner Anslinger and other prohibitionists were able to convince the United States Congress to pass the Marijuana Tax Act of 1937, which was modeled after the Harrison Narcotic Act. This law did not actually ban the substance, however. In fact, it specifically recognized marijuana's medical utility and provided for medical doctors and others to prescribe it, druggists to dispense it, and others to grow, import, and manufacture it, as long as each of those parties paid a small licensing fee. It was only the non-medicinal and unlicensed possession or sale of marijuana that was prohibited. But that was enough. The cumbersome bureaucratic process, coupled with the stigma and the exorbitant tax of $100 per ounce for unlicensed transactions with marijuana, were sufficient to result in the substance being taken off the commercial market.

    The legislative hearings leading up to the passage of the Marijuana Tax Act of 1937 lasted only three days and took up only 124 pages of transcript—including material that was not actually discussed but only read into the record. And there was no medical testimony at all that favored the bill. In fact, the only medical witness that appeared at the hearing was a doctor who recommended that the bill be defeated. This doctor testified that marijuana was a recognized medication, was distributed by many reputable pharmaceutical firms, and was currently on sale at many of the nation's pharmacies. In addition, an editorial in the Journal of the American Medical Association strongly urged Congress to defeat the bill. Nevertheless, it passed the House without even a roll call vote, and with only two pages of "debate."

    After the Senate summarily passed the bill as well, with only minor changes, it was returned to the House. On that occasion, the only question asked on the floor was whether the American Medical Association supported the bill. The response by Rep. Fred M. Vinson (who later would sit as a justice on the United States Supreme Court), was that the bill had the full support of the AMA, even though the only medical witness before the committee had directly opposed it. And so the bill became law.

    As subsequent events have proved, one distinct, direct, and lasting effect of the laws to suppress the use of marijuana was that they led to the establishment of organizations in countries like Colombia to process and distribute cocaine in this country. The reason for this was simple: it was much easier to conceal and transport cocaine than marijuana, and much more lucrative, pound for pound.

    The United States government radically changed its prohibitionist position on marijuana during World War II, when our supplies of hemp from the Philippines and jute from India were cut off by the Japanese. This resulted in our armed forces running seriously short of raw materials for rope and course cloth. In response, the U.S. Department of Agriculture produced a fourteen-minute film in 1942 entitled "Hemp for Victory." This film began by acknowledging that hemp had been grown in ancient Greece and China for thousands of years, and that the word for "canvas" in ancient Arabic was the same word as "cannabis," or hemp. It went on to explain that our old cannistoga wagons had been covered with cloth made from hemp and that it had taken about sixty tons of rope made from hemp to outfit Old Ironsides. As the audience heard strains of "My Old Kentucky Home" in the background, the narrator exhorted patriotic farmers to plant hemp so that we could increase the number of acres planted from 14,000 in 1942 to 300,000 in 1943. The war effort demanded it. And then, to the sounds of "Anchors Aweigh" and with pictures of American flags waving proudly in the breeze, the narrator intoned: "Hemp for light-duty fire hoses," for "thread for shoes for millions of American soldiers," for "parachute webbing for our paratroopers," for supplying the "34,000 feet of rope for each of our United States Navy ships," and for "countless uses on ship and shore." "Hemp for mooring our ships!" "Hemp for tow lines!" "Hemp for Victory!"

    After the war hemp reverted to being a prohibited substance "without any practical usages of any kind."

    In the decades thereafter, U.S. presidents and Congress have continually reaped political benefits by passing a flood of "get tough" laws, which lump all illegal substances together regardless of their properties or their effects on the user. When these laws have failed to produce the desired results, Congress has responded by continually passing even more stringent ones. The Boggs Act of 1951 and the Narcotic Control Act of 1956, for example, imposed ever more strict sentencing requirements for all illicit drug offenses. In 1961, the U.S. government somehow convinced many other countries to ratify a treaty entitled the Single Convention of Narcotic Drugs, which said in effect that there was only one way to attack the drug menace, and that was our way. Richard M. Nixon, the first U.S. president formally to declare the nation's "War on Drugs," expanded the federal government's involvement, both by attempting to disrupt the importation of illicit drugs and by increasing our efforts to interdict them at our borders. The Comprehensive Drug Abuse Prevention and Control Act of 1970 consolidated prior anti-drug legislation and established schedules of illicit drugs. The Comprehensive Crime Control Act of 1984 increased bail amounts and lengths of sentences for drug offenders, and stepped up federal authority to forfeit assets and investigate money laundering.

    The Anti-Drug Abuse Act of 1986 further increased federal drug penalties and instituted mandatory minimum sentences for simple possession of drugs, the doubling of penalties for anyone who knowingly involved juveniles in any drug activity, and mandatory life sentences for "principals" convicted of conducting a continuing criminal enterprise. The 1986 act also made it a federal offense to distribute drugs within 1,000 feet of a school and required the president to evaluate annually the performance of drug-producing and drug-transit countries and to certify those that were "cooperating" as anti-drug allies. Decertified countries were to lose foreign aid, face possible trade sanctions, and suffer U.S. opposition to loans from international financial institutions—unless such countries were granted waivers by the president in the interest of U.S. security.

    The Anti-Drug Abuse Act of 1988 further expanded federal offenses to include the distribution of drugs within one hundred feet of playgrounds, parks, youth centers, swimming pools, and video arcades. The Crime Bill of 1994 provided for capital punishment for some types of drug selling, and instituted "criminal enterprise" statutes that called for mandatory sentences of from twenty years to life. The 1998 Higher Education Act disqualified young people from receiving federal aid for college if they had ever been convicted of marijuana possession, even though no such disqualification applies to convictions for offenses like robbery, rape, or manslaughter. All of this "get tough" legislation still forms the basis of our nation's drug policy today.

    Two fundamental factors have been driving this failed policy for all of these years. The first is our political system, which rewards (elects) politicians who posture as being "tough on drugs," and the second is the "runaway freight train" of federal spending. Politicians get elected and reelected by continuing to "talk tough," and entire state and federal agencies, as well as legions of private enterprises, are addicted to the enormous amounts of drug war funding. As of fiscal year 1999, the Office of National Drug Control Policy, by itself, was overseeing a federal drug control budget of $17.8 billion (in nine separate appropriations bills), plus an additional $1 billion for the National Youth Anti-Drug Media Campaign, $143.5 million for the Drug-Free Communities Program, and $184 million for the High-Intensity Drug Trafficking Area Program. That budget was increased again to $19.2 billion for fiscal year 2000. To put this incredible amount of money into some kind of perspective, in the year 2000, United Airlines agreed to purchase US Airways for a total of $4.3 billion. This means that our Drug Czar would be able to purchase four major airlines each year on his office's budget alone, with substantial money left over. And of course that does not even begin to take into account all the additional state and federal budgets for a myriad of other programs. It is up to us as caring citizens, taxpayers, and voters to make the government move forward to a more rational, workable, and, as good fortune would have it, vastly less expensive national drug policy.


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