Subject: Amicus brief - Drug criminalization Summary: Strong Arguments against the War On

From: betz@marob.masa.com (Tom Betz)
Subject: Amicus brief - Drug criminalization
Summary: Strong Arguments against the War On Drugs -- Referenced

The following letter was written by Associate Professor of Law Jeffrey M.
Blum of the University of Buffalo School of Law, in response to a request
from a federal court judge, and is a good summary of many of the things
that are wrong with the "war on drugs."


  May 21, 1990



  The Hon. John L. Elfvin
  United States District Court
  Western District of New York
  Buffalo, New York  14202

                 Re:  United States v. Anderson, CR-89-210E

  Dear Judge Elfvin:

  I have received a request from your Chambers for a submission in the
nature of an amicus curiae brief addressed to the question:

  "whether today's climate of allegedly rampant importation of contraband
drugs ...justifies a `relaxation' of the Constitutional rules which would
otherwise control."

  I am told that argument on this question is scheduled for June 4, 1990.
Unfortunately my publishing deadlines and commitments at this time of year
preclude me from preparing a full brief. However, because I appreciate the
request and believe it is critically important for members of the judiciary
to be well informed on this issue, I wish to offer three things in
response: first, the instant letter brief which will simply list proposed
findings of fact that bear centrally on the issue, second, the enclosed
packet of readings that documents some of the proposed findings and
assesses the drug war from a variety of perspectives, and third, my
personal expression of willingness to speak free of charge regarding any or
all of the proposed findings to any gath ering containing influential
members of the Western New York legal community.

  The proposed findings are based upon information I have gathered from a
variety of what I believe to be reputable sources. In most cases more than
one source is involved. The proposed findings are offered in support of the
following answer to Your Honor's question:

  No, today's climate of allegedly rampant importation of contraband drugs
...does not justify a `relaxation' of the Constitutional rules which would
otherwise control. Rather, it necessitates a strengthening of
constitutional norms to safeguard reasonable exercises of personal liberty
from arbitrary and unwarranted invasion, and to prevent uncontrolled cycles
of hysteria from severely impairing our constitutional form of government.

  Professorial Amicus' Proposed Findings of Fact

  1. For several years now the United States government's "war on drugs"
has been inspiring a series of decisions substantially cutting back on
established constitutional rights, particularly in the areas of the fourth,
fifth and sixth amendments to the U.S. Constitution. See- Wisotsky,
Crackdown: The Emerging Drug Exception to the Bill of Rights, 38 HASTINGS
L. J. 889 (1987).

  2. The drug war has been directed against a variety of very different
illicit substances, some highly addictive and posing a significant public
health problem, and others not. Over three- fourths of the illicit drug use
in the United States involves smoking or ingestion of marijuana. For each
of the last ten years marijuana has accounted for a majority of
drug-related arrests, seizures, property forfeitures, and expenditure of
law enforcement funds. Because of marijuana's easy detectability, laws
against it have generated an average of close to 500,000 arrests annually
in the United States. See- annual household surveys of the National
Institute of Drug Abuse, and annual reports of the U.S. Department of
Justice.

  3. There is not now, nor has there ever been, credible medical evidence
to justify this level of law enforcement effort against marijuana. Rather,
several presidential panels of experts and a number of other comprehensive
reputable studies have consistently and unequivocally shown marijuana to be
far less addictive, less toxic, less hazardous to health, less disruptive
of family relationships, less impairing of workplace productivity and less
likely to trigger release of inhibitions against violent behavior than
alcohol. See- Hollister, Health Aspects of Cannabis, 38 PHARMACOLOGICAL
REVIEWS 1 (1986) (included in enclosed packet).

  4.  Marijuana was first made illegal in the United States in the early
twentieth century largely for two reasons, neither of which was
health-related. The first publicly known large user group of marijuana was
Mexican-Americans. Marijuana laws began being passed in Southwestern states
as part of a self-conscious harassment campaign designed to drive
Mexican-Americans out of the United States and "back" to Mexico. This
harassment campaign intensified during the 1930's when the depression was
making jobs scarce and causing Anglo-Americans to covet the jobs held by
Chicanos. For proposed findings 4 through 7, infra, see- Riggenbach,
Marijuana: Freedom is the Issue, 1980 LIBERTARIAN REVIEW 18 (included in
enclosed packet).

  5.  The second important reason for marijuana prohibition was the covert
protectionist activities of paper and synthetic fiber industries in the
1930's. These interests, of which the Du Pont Corporation was the most
important representative, wanted to eliminate possible competition from the
hemp plant (marijuana is comprised of the buds or flowers of the hemp
plant), which had recently become a serious "threat" as a result of the
invention of the hemp decorticator machine. With such a machine in
existence, competition could have become severe because hemp, in contrast
to trees, is an annual plant with no clearcutting problem. Hemp also is
believed to produce 4.1 times as much paper pulp as trees, acre for acre.

  6.  Several trends in government converged to make hemp/marijuana
prohibition possible. The New Deal Court had recently swept away earlier
established doctrines of economic due process which had limited covert
protectionist uses of government agencies. Andrew Mellon, the chief
financier of the Du Ponts, had become Secretary of the Treasury and
appointed his nephew, Harry Anslinger, to head the newly created Federal
Bureau of Narcotics. Anslinger proceeded to misclassify marijuana, which is
a mild stimulant and euphoriant, as a narcotic, and to make its prohibition
his agency's top priority. In addition, the recent lifting of alcohol
prohibition had confronted a number of federal agents with the risk of
unemployment if new forms of prohibition could not be instituted. All these
factors contributed to passage of the Marijuana Tax Act, the initial
federal prohibitory legislation, in 1937.

  7. Throughout the 1930's a lurid "reefer madness" propaganda campaign was
carried on throughout the nation, largely through the Hearst newspaper
chain. The Hearst chain, whose vertical integration had caused them to buy
substantial amounts of timber land, had been accustomed to using lurid
propaganda campaigns to sell newspapers since the Spanish-American War in
1898. The "reefer madness" campaign was based partly on the knowledge that
Pancho Villa's army had smoked marijuana during the Mexican Revolution. It
portrayed marijuana as a powerful drug capable of causing Anglo teenagers
to turn instantly into hot blooded, irrational, violent people, much akin
to the "Frito bandito" stereotype of Mexican-Americans.

  8.  The "reefer madness" campaign rested on a large number of anecdotal
stories of violent incidents, almost all of which have turned out to have
been fictitious and traceable to a single doctor who had worked closely
with Harry Anslinger. One indication of the stories' falsity is that during
the Second World War and Korean War Anslinger himself shifted from calling
marijuana a violence-inducing drug to calling it a menace that had the
capacity to turn large numbers of young people into pacifists. For proposed
findings 8 through 11, infra, see Herer, THE EMPEROR WEARS NO CLOTHES (Los
Angeles: HEMP Publishing, 5632 Van Nuys Blvd., Van Nuys, Calif. 91401).

  9.  Since marijuana began becoming popular among the white middle class
in the mid-1960's a number of specious medical studies alleging great harm
from marijuana have been widely publicized. The most important of these,
and the source of the widespread myth that marijuana damages brain cells,
involved force feeding rhesus monkeys marijuana smoke through gas masks.
The monkeys consumed in a matter of minutes amounts of smoke far greater
than what human beings would be likely to consume in a month. The monkeys
suffered substantial brain damage that appears to have been caused by
carbon monoxide poisoning from smoke inhalation.

  10. Covert economic protectionism appears to have played a continuing
important role in sustaining marijuana prohibition during the last decade.
Pharmaceutical companies, possibly alarmed at the increasingly widespread
use of marijuana as a versatile home remedy, provided most of the funding
in the late 1970's and early 1980's for a network of "parents' groups
against marijuana." By far the largest sponsor of the Partnership for
Drug-free America, which blankets the airwaves with anti- marijuana
commercials, has been the Philip Morris Company. Philip Morris owns several
brands of tobacco cigarettes and is the parent company of Miller Beer, and
possibly some other brands of beer as well.

  11. Partnership commercials, while exaggerated but to some degree
truthful about cocaine, have been uniformly uninformative about marijuana.
They have ranged from merely casting negative stereotypes of marijuana
users as lazy and shiftless to being instances of outright (and possibly
legally actionable) fraud. One widely aired commercial compares the
brainwaves of "a normal teenager" and "a teenager under the influence of
marijuana." The latter was later admitted by Partnership officials to have
been the brain waves of a person in a deep coma.

  12. Largely as a result of such government and corporate- sponsored
propaganda campaigns a majority of people have come to support an
across-the-board crackdown on illicit drug use and sales. Due to this
political climate a number of harsh statutes have been passed during the
last five years and these, combined with various "relaxations" of
constitutional restrictions on law enforcement activities, have resulted in
large numbers of young people receiving ten, fifteen and twenty-year
mandatory-minimum sentences for transport and sale of marijuana. Thousands
of people have forfeited ownership of their farms, homes, shops and
vehicles for growing, and in some instances merely possessing, marijuana.
See generally- the Omnibus Anti-drug and Anti-crime Acts of 1984, 1986 and
1988.

  13. Because of this wholly unjustified crackdown on marijuana, people
around the country have come to view the term "Your Honor" as connoting a
person of ill will, mean spirit and low principle. "The Government" has
come to connote an organization that is both very inefficient in its
processing of information and very casual in its willingness to disseminate
falsehoods with abandon.

  14. The attempt to portray marijuana use as an emergency that requires a
serious crackdown on users strikes most of the nation's thirty million pot
smokers as utterly ludicrous. Marijuana is not known to have caused even a
single death. Yet there are longitudinal studies showing that people who
have smoked marijuana frequently for decades appear normal, healthy and
have life expectancies as great or slightly greater than those of
nonsmokers. See- Hollister, supra; Herer, supra.

  15. By contrast, alcohol is believed to be a primary cause of death for
approximately 120,000 to 150,000 Americans each year. Tobacco is believed
to cause 320,000 to 390,000 deaths annually. Current government policies
allow alcohol to be advertised openly, and even to be promoted by
advertising strategies aimed largely at young people. Current government
policies allow tobacco to be advertised, although not over radio and
television; policies also provide for large government subsidies to tobacco
companies and for retaliatory measures against third world countries which
limit the sale of American cigarettes in their domestic markets. Statistics
in proposed findings 15 and 16, infra are for 1987 and are taken from the
federal government's Bureau of Morality Statistics and National Institute
of Drug Abuse; see also,- Trebach, THE GREAT DRUG WAR (1987). 16. The total
number of deaths annually attributable to overdose or poisoning from all
illicit drugs combined is between 3,800 and 5,200, or approximately one
percent of the number who die annually from alcohol or tobacco-induced
illnesses. Of the overdose deaths it is believed that about 80% of these
would be avoided if the illicit substances, instead of being obtained on
the black market where they are frequently contaminated or of unknown
purity, were dispensed lawfully in some sort of controlled maintenance
program. See- Ostrowski, Thinking About Drug Legalization (Cato Institute
1989) at 14-15.

  17. By far the largest number of deaths associated with illicit drug use
will be coming from the AIDS plague. It is estimated that there are now
about 100,000 intravenous drug users in New York City who have become
infected and would test HIV positive as a result of blood contamination
caused by use of shared needles or works. See- Lazare, How the Drug War
Created Crack, VILLAGE VOICE, January 23 (1990) (included in enclosed
packet).

  18. In countries such as Holland where greater tolerance is accorded to
intravenous drug users, such users obtain clean needles and about
three-fourths of them receive medical care and counseling. As a result, the
I.V. drug use contribution to AIDS in the Netherlands has been small,
constituting only 8% of the country's 605 AIDS patients. In the United
States the comparable figures are 26% of a much larger number of AIDS
patients. Engelsman, The Dutch Model, NEW PERSPECTIVES QUARTERLY (Summer
1989) at 44-45.

  19. It is estimated that the 100,000 HIV-positive intravenous drugs users
in New York have infected 25,000 sexual partners and caused 4,000 infants
to be born infected with the AIDS virus. It is also expected that blood
contamination through use of intravenous drugs will be providing a major
pathway for AIDS to spread into the American heterosexual population. For
judges, politicians and retirees past the age of rampant sexual activity,
this public health problem may appear remote and is susceptible to being
ignored in the interests of continuing a morally satisfying crusade.
However, to Americans now under the age of 30 this is a tragedy of enormous
proportions. See Lazare, supra.

  20. A common reason given for stepped-up anti-drug enforcement is the
violence associated with illicit drug use. However, neither marijuana nor
psychedelic drugs nor heroin or other opiates induces violent behavior. To
the extent such were legally available and used in place of alcohol, which
is violence-inducing and associated with 65% of all murders, the effect
would be to make the society less violent overall.

  21. Like alcohol crack and other forms of cocaine will sometimes
encourage violent behavior.  However, the vast majority of drug- related
violence comes not from the effects of the drugs, but from their illegality
and the resulting lack of access to peaceful means of dispute resolution. A
study of drug-related homicides in New York recently found 87% of those
involving cocaine to stem from territorial disputes and debt collection or
deals gone awry. Only 7.5% were related to the behavioral effects of drugs,
and of these, two-thirds involved alcohol rather than cocaine. Summarized
in Glasser, Talking Liberties: Taboo No More?, CIVIL LIBERTIES (Fall/Winter
1989) at 22.

  22.  Attempts to create a drug-free America through stepped-up campaigns
of border interdiction and crop eradication have had no substantial
success. Various authorities agree that only about ten percent of the
cocaine coming into the United States is being successfully interdicted and
this has made no difference in the drug's availability because producing
countries generate vastly more than enough cocaine to satisfy the U.S.
market. Similarly, the massive Campaign Against Marijuana Planting (CAMP)
has given marijuana growers a useful pretext for raising prices and has
encouraged a more oligopolistic market structure, but the total amount of
marijuana being grown has increased rather than decreased. In effect, law
enforcement winds up producing a kind of artificial price support system
for the growers and manufacturers of illegal drugs. See- Thompson,
"California's Unwinnable War Against Marijuana," Wall Street Journal,
January 8, 1990. Given the loss of tax revenues and the large crime problem
generated by prohibition of drugs, the only possible benefit of such a
system would be its progressive redistribution of wealth from wealthier
users to poorer growers and sellers.

  23. The most significant effects of "zero tolerance" and stepped up
enforcement campaigns have been to encourage distributors to switch from
delivering bulkier and more detectable drugs, such as marijuana, to more
concentrated--and also more dangerous--ones such as cocaine and its
derivative, crack. As a result, during the 1980's the price differential
between cocaine and marijuana by weight dropped from about 70:1 to about
3:1, and crack use became widespread among the inner city poor. This
parallelled the phenomenon during alcohol prohibition where gin became more
plentiful and cheaper than beer. See- Lazare, supra; Cowan, A War Against
Ourselves, NATIONAL REVIEW (December 5, 1986) (included in enclosed
packet). Unless one takes the position that illicit drug use generally
poses no significant harm, one must confront the fact that encouraging
users to switch from marijuana to the vastly more addictive crack has posed
a serious detriment to the public health. By contrast, the open
legalization of marijuana in Holland caused no significant increase in
rates of pot smoking, but rather a sharp drop in heroin use among the young
because they no longer had to obtain marijuana from the same distributors
who sold heroin. Engelsman, supra.

  24. Notwithstanding its general ineffectiveness in curbing illicit drug
use, the war on drugs may be posing a significant civil liberties threat to
the American people generally. The nature of the threat differs according
to class position. For the urban underclass and particularly its members
under the age of thirty, this threat takes the form of a greatly elevated
likelihood of imprisonment. Largely because of recurring drug wars, rates
of imprisonment in the U.S. are projected to have risen more than four-fold
between 1970 and 1994. See- National Council on Crime and Delinquency, The
1989 NCCD Prison Population Forecast: The Impact of the War on Drugs
(December 1989) (included in enclosed packet). Given the projected
expansions of prison population, the heavily (and increasingly) nonwhite
composition of persons imprisoned on drug charges, the plans to require all
prison inmates to work and for their products to be made more readily
available for profitable sale in the private sector, see- enclosed
Gramm-Gingrich National Drug and Crime Emergency Act, it is possible that
we may be moving toward a partial reimplementation of the institution of
Negro slavery under the aegis of the criminal justice system. It is already
the case that the United States ranks either first or second (behind the
Republic of South Africa) in the world in per capita imprisonment, and that
there are more black males in prison than in college, graduate and
professional school combined.

  25. For the white middle class, and particularly those segments of it in
and around universities, the civil liberties threat takes a different and
more subtle form. In this regard the seemingly arbitrary inclusion of
marijuana among the list of targeted substances is crucial. During the
1970's marijuana gained widespread acceptance, particularly in and around
university campuses, and was even proposed for nationwide decriminalization
by President Carter. Because of its superiority over alcohol as a
facilitator of creativity and intellectually engaged lifestyle, marijuana
has come to be used with some regularity by a substantial proportion of
writers, artists, musicians, teachers and others who might be thought of as
avant-garde elements of society. A na tionwide estimate of about one-third
of university students and faculty under the age of 45 using marijuana
would not be unreasonable. Included among this population of pot smokers is
a high proportion of persons inclined to favor political change and hence
likely to be viewed by the government as dissident elements during times of
heightened political discord. Recent passage of laws, such as the 1988
Anti-drug Abuse Amendments Act, which establish harsh penalties for
possession of any amount of any drug anytime during the preceding five
years--e.g., $10,000 fines, cutoff of all governmental benefits, commitment
to "treatment" facilities-- creates a mechanism by which Soviet-style,
KGB-type surveilence and selective repression of dissenters could be
implemented in a way that circumvented established first amendment
protection. The likelihood of this occurring at some future time is
enhanced by provisions of the 1988 Act which divert monies in the
Department of Justice Assets Forfeiture Fund from general federal revenues
into a special account for "program-related expenses." The primary uses of
money in this fund appear to include purchase of computerized equipment for
record-keeping on the general population (the D.E.A. had been keeping files
on 1.5 million people as early as 1984) and purchase of evidence and
payment to informants. As of the end of 1989 the amount of money and
property in this fund was valued at approximately one billion dollars. See-
Belkin, "Booty from Drug Cases Enriches Police Coffers," New York Times,
January 7, 1990 at A 19. It is reasonable to expect that such a system,
once in place, could be used selectively to intimidate and quell political
dissent, thereby impairing the society's capacity to adapt intelligently to
a rapidly changing world.

  26. Urine testing, which is now employed in some form by a majority of
Fortune 500 companies, as well as by the military and significant sectors
of the government, poses a civil liberties threat of a different type.
Because marijuana is the most easily detectible substance for the tests,
showing up as "positive" for up to four to six weeks after use, it accounts
for 90% of the positive results on urine ("EMIT") tests. See- "Test
Negative," SCIENTIFIC AMERICAN, March 1990 at 18. (included in enclosed
packet). As a result, and due in no small measure to various "relaxations"
of fourth amendment rights against unreasonable search and seizure,
employers are now placed in the position of acting as an enforcement arm of
federal government, particularly in relation to some of the government's
most arbitrary and socially destructive laws. The situation where
government and major employers unite to exert plenary control over how
citizens behave in their off-duty leisure hours is one of the hallmarks of
a totalitarian society. See generally- Hoffman & Silvers, STEAL THIS URINE
TEST (1987).

  27. During the last few months a number of my students have informed me
that their elementary school children have been instructed in the Buffalo
public schools to turn their parents in to the police if they detect
marijuana smoke or other evidence of illicit drugs. When I was in
elementary school we were taught that such practices occurred only in
totalitarian societies, and that in order to ensure that they would not
occur here we should be prepared to fight a war against the Soviet Union.
It would be sadly ironic if, in the wake of their country's "victory" in
the Cold War Americans came to suffer some of the negative consequences
associated with life under totalitarian regimes.

  28. None of the serious threats to civil liberties mentioned in proposed
findings 24 through 27, supra, is in any sense necessary. They stem simply
from misguided policies. A major improvement in our current situation could
be achieved simply by returning to enforcement strategies as they were
practiced prior to 1980. Light handed enforcement directed solely against
street dealing of the more dangerous and addictive drugs (e.g., refined,
concentrated forms of cocaine and heroin) does about as much to limit
dissemination of these through the population as does the current drug war
strategy, and it does so at a small fraction of the social and economic
costs. See generally,- Wisotsky et. al., The War on Drugs: In Search of a
Breakthrough, 11 NOVA L. REV. 878 (1987).

  29. Further improvement could be achieved by legalizing or securely
decriminalizing marijuana, thereby allowing law enforcement efforts to be
concentrated on the genuinely addictive drugs and tax revenues to be raised
which could fund treatment and maintenance centers for persons addicted to
such drugs. Serious efforts should be made to investigate current claims
that widespread cultivation of hemp for non-drug uses would produce
enormous ecological benefits by providing alternative sources of paper,
fabric and fuel. If these claims are borne out, then government
price-supports and subsidies for tobacco should be transferred to the
cultivation of hemp, particularly for its non- drug uses. Curiously,
widespread cultivation of hemp over substantial regions of the United
States was being advocated by Presidents Washington and Jefferson shortly
after the birth of the Republic. See- Herer, supra.

 30. While there are good reasons for society to be very cautious about
allowing open, free market legalization of heroin and cocaine, see- Wilson,
Against the Legalization of Drugs, COMMENTARY (February 1990) at 21
(contained in enclosed packet), a government-controlled system of
maintenance and treatment for certified drug-dependent people would be far
preferable to the current system of black market distribution which
generates widespread crime, escalating rates of incarceration and a
substantial hidden subsidy for organized crime. Whatever disincentives were
needed to keep large numbers of people from choosing to become addicts
(e.g., making addicts wait in line for two hours to get their doses) could
be built into the system of distribution. Such a system worked quite well
in Great Britain until the issue became too politicized for it to continue.
See Trebach, supra.

  31. Psychedelic drugs pose greater hazards than marijuana, but less than
those of addictive drugs like heroin and cocaine. While some psychedelics,
such as PCP, may be inherently dangerous and thus appropriately prohibited
altogether, most can be taken safely by most people. The problems posed by
LSD, for example, in some ways resemble those presented by scuba diving.
Each is seen as a form of exploration that opens new vistas. Hence
participants often find the activity enormously stimulating and inspiring.
Each activity poses a small but significant risk of serious personal harm,
these being death for one and aggravation of pre-existing states of mental
instability for the other. Untrained, unsupervised use of unchecked
substances or equipment are ill- advised in both cases. Conversely, though,
a government- orchestrated campaign of persecution for either group of
explorers is likely to be viewed as barbaric by knowledgeable persons. In
each case a premium should be put on devising social policies that minimize
the hazards of the activities in question. ....

  Thank you, Judge Elfvin, for the opportunity to place these proposed
findings of fact before the Court. I believe Your Honor can discern the
relationship between the information they present and the answer proposed
in response to the Court's question. If I may be of any further assistance,
please do not hesitate to call my secretary at (716) 636-2103. I do,
however, expect to be out of town during the period of May 21, 1990 to June
10, 1990.

  Sincerely,
  Jeffrey M. Blum
  Associate Professor of Law
  University of Buffalo Law School

  cc: The Honorable John T. Curtin
      The Honorable Richard J. Arcara
      The Honorable Robert L. Carter
      The Honorable John J. Callahan
      The Honorable M. Dolores Denman
      The Honorable John H. Doerr
      The Honorable Samuel L. Green
      Susan Barbour, Esq.

============================================================================

                        WHY THE DRUG WAR IS UNSTOPPABLE

                                       by
                               Thomas Szasz, M.D.
            Professor of Psychiatry, State University of New York,
                     Upstate Medical Center at Syracuse.
                         11 Nova L.R. 915-918 (1987).

        The purpose of this symposium is to search for a breakthrough in drug
policy, or, to put it more simply, to stop the War on Drugs.  Given the present
imbalance of power between those who want to continue to wage this war and
those who do not, it is, in my opinion, unstoppable in the foreseeable future.
        Historians have always understood that certain social problems are, in
a fundamental sense, created by the societies in which they arise and exist;
that is to say, they are not discovered, but invented.  Modern sociologists
have re-articulated this insight, observing that the construction of such
problems typically follows several stages: 1) emergence - through agitation by
interest groups; legitimation - through an agreed-upon explanation of the
problem; 3) development of an official solution - through an ideologically
sanctioned program, such as the War on Poverty or the War on Drugs; and 4)
implementation of the solution - through legislation, government funding, and
imposition of appropriate social controls.  Clearly, this scheme applies to our
so-called drug problem.
        Supposedly, the great moral contest of our age is the struggle between
open and closed societies, the market economy and socialism, capitalism and
communism.  Actually, that struggle conceals an even greater contest - a
struggle waged by politicians and their intellectual lackeys, both East and
West, against free will and personal responsibility.  Whether couched in the
imagery of historical or biological determinism, whether seen as Marxist or
behavioral "science," the real message is the same: the individual is not
responsible for his behavior; he is a victim who must be saved - from himself -
by a protective, therapeutic state.
        The simple fact is that so long as they remain in the laboratory or on
the shelf - that is, anywhere outside the human body - drugs are merely inert
substances.  Heroin, cocaine, and marijuana pose no problems for those who do
not take them, and unlike the currently fashionable psychiatric drugs, no one
is forced to take them.  Surely, the gun lobby's slogan "Guns don't kill,
people kill," applies to psychoactive drugs as well.  Since illicit drugs are
not dangerous to those who do not deliberately choose to use them, it is a
grave abuse of language to call them "dangerous drugs."
        From the traditional point of view of the theory of public goods, drug
controls constitute a veritable caricature of a legitimate State service - that
is, of a service individuals cannot provide for themselves and hence need
society, or the State, to provide for them.  If a person does not want to smoke
tobacco or marijuana, he dose not have to; if a person does not want to inject
himself with heroin, he can refrain from doing so.  Surely, it is ridiculous to
regard the State as providing us with a "service" when it defines the use of
certain chemicals as both crimes and diseases, subject to penal sanctions and
involuntary psychiatric "treatments."  When the American capitalistic State
deprives us of the choice among drugs, it acts exactly as the Soviet State acts
when it deprives Russians from the choice among consumer goods, with this
important difference: The Russians do not get punished or "treated" if they
make their own bluejeans, rendered deliberately unavailable through
State-approved channels.
        Given all this, one might think that Conservatives - supposed defenders
of the free market and the rule of law, not to mention common sense - would
unite in declaring that drug-taking is a matter of self-discipline; in other
words, that, in principle, using illicit drugs is no different from smoking,
drinking, or overeating and is hence not a legitimate arena for government
meddling.  Has this happened?  No.  Conservative administrations, such as those
of Nixon and Reagan, have waged the War on Drugs just as enthusiastically as
have Liberal administrations, such as those of Johnson or Carter.  I take for
granted that since the Liberal looks to the State to improve the human
condition, he can always be counted on to wage wars with therapeutic objectives
- be it on poverty, racism, drugs, or war itself.  However, the Conservative
should appreciate that, if individual freedom and responsibility are to be
preserved, important areas of life must be out of the reach of the coercive
apparatus of the State.  Hence, if he too, joins the War on Drugs, who is left
to oppose it?  A handful of classical liberals and libertarians - not nearly
enough to make a difference.
        Illustrative of the Conservative capitulation to the ideology of
anti-druggism is an otherwise superb essay by Joseph Sobran, a nationally
syndicated Conservative columnist.  Written for the Thirtieth Anniversary Issue
of _National Review_, this essay - titled "Pensees: Notes for the Reactionary
Tomorrow" - offers an important example of the selective conservatism of
today's Conservative: Sobran systematically closes his eyes to the significance
- both practical and symbolic - of the War on Drugs.
        He begins by noting that "malcontents [his sobriquet for Liberal]
always seem to want to `eliminate' something - poverty, racism, war ...."
Illegal drugs (as well as pornography and promiscuity) are conspicuous by their
absence from this list and from the entire essay.  Sobran cogently emphasizes
that "A political and legal system has to be based on the moral habits of its
citizens," and that "those laws are best that don't require a huge apparatus of
surveillance and enforcement" - sentences that veritably cry out for a
rejection of the War on Drugs.  Instead, all we get is an irrelevant reference
to Prohibition.
        Apropos of abortion and religion, Sobran caustically comments on the
Liberal's selective support of the right to choose, but seems oblivious of the
Conservative's similar indulgence in this habit.  "It is instructive to
notice," he writes, "when the liberal resorts to the rhetoric of `choice' and
when he abruptly drops it."  Poor people should have a choice about aborting
their fetuses but not about where to send their children to school: Liberal
hypocrisy, all right.  But it is Conservative hypocrisy to wax indignant about
modern socialism illustrating "Burke's dictum that `criminal means, once
tolerated, are soon preferred'," without mentioning the criminal means entailed
in the apparatus of drug enforcement.
        Next, Sobran ridicules an activist Supreme Court for "discovering," two
hundred years after the Framers wrote it, that the Constitution of the United
States contains a right to abortion, and yet remains silent on the even more
obvious issues of drugs - namely, that there is nothing in the Constitution to
legitimately empower the federal government to regulate what substances we may
ingest, inhale, or inject into ourselves.
        Enough said.  Surely, I need not dwell here on the countless victims of
the War on Drugs: the persecuted "drug addicts," "drug abusers," and "drug
pushers;" the corrupted and killed drug enforcement agents; the ordinary men
and women robbed and murdered by individuals whose incentive for a criminal
career is directly attributable to the lack of a free market in drugs; the
children seduced into a fascination with "drugs" by the glamor of the illicit
and by the defiance of the law by the glamorous; the nation as a whole,
undermined in its elementary duty to instill self-control in its citizens.
        My argument is simple: the American War on Drugs is a war on
scapegoats, similar to the War on Witches waged in the Late Middle Ages, or the
war on Jews waged in Europe only a few years ago.  Although not everyone may
wholeheartedly support the aims of such epic struggles, few people - especially
in politics, law, science, or the academy - are willing to stand up and
publicly denounce the values ostensibly legitimating the struggle, and fewer
still are willing to risk refusing to participate in it.  German intellectuals
and scientists had cravenly capitulated to the anti-Semitic rhetoric and
programs of the Nazis.  And so have American intellectuals and scientists to
the anti-drug rhetoric and programs of the warriors against chemical
dependency.  How many participants in this very conference have received
government funds linked to this crusade?  Who has had the courage of his
convictions to refrain from feeding at the lavish trough that the drug warriors
have laid before the medical and psychiatric establishment?
        The Soviets, to quote Sobran once more, "try to impose their [economic
and social] fantasies by force and terror, and their real achievement is to be
found not in their population centers but at their borders, which are armed to
kill anyone who tries to flee.  Communism can claim the distinction of driving
people by the millions to want to escape the homeland of all their ancestors."
I agree.  And I do not, for a minute, believe or contend that the U.S.S.R. and
the U.S. are similar powers or represent symmetrical ideologies.  But I would
be less than appreciative or loving of my adopted homeland if I refrained from
observing that Americans can now claim the distinction of spending billions of
dollars on armed personnel of all kinds to ferret out, harass, imprison, and
kill those engaged in providing drugs desired by the American consumer; and
billions more on physicians and their paramedical stooges - armed with powers
provided by the State and with drugs provided by pharmaceutical companies - to
chemically control and subdue those who rebel against the prevailing chemical
mores.  Moreover, the doctors and the State do all this - _horrible dictu_ - in
the name of treatment, health, and a War on Drugs.
        I do not see how anything short of a principled rejection, by the
intellectual and moral leaders of this country, of the entire ideology and
program legitimizing the War on Drugs could even begin to bring the drug
warriors to the negotiating table.

--
  Dirk Van Cleave                  UUCP: { backbone }!uiucuxc!uiucuxa!dvg0584
TaxIncreasesDeficitSpendingZeroToleranceMegaRegulationsConscriptionNationalDebt
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