Why The Drug War Cannot Succeed

by Gary & Nora Callahan

For the past 80 years, the United States has engaged in a policy of controlling certain substances, among them: opiates, cocaine and marijuana. The declared "war" on drugs, however, actually commenced during the 1968 presidential campaign, when Richard M. Nixon was casting about for election ammunition. One of his advisors, John Ehrilichman, told Nixon that narcotics repression was a "sexy political issue."

From the very onset, the war on drugs was fashioned as a political tool, but it has been hammer-forged in the ensuing years, into a weapon that is wreaking havoc on our lives. It is important to remember that we are speaking not of drugs, but the war waged upon them.

The Controlled Substance Act of 1970 put marijuana, LSD, cocaine and other drugs on a schedule that significantly increased penalties for possession and trafficking. The Act was tied to the crime bill of that election season; a knee-jerk response to the failing war in Vietnam, social unrest within the United States and drug use - particularly marijuana among the so-called counterculture.

Drug hysteria was fueled by scenes of hippies smoking grass, free love, communes and the entire anti-establishment movement. In actuality, more people died from falling down stairs in 1969, than died from legal and illegal substances combined.

It is now nearly 30 years later, and recent comments made by senators, Orrin Hatch of Utah and Jon Kyl of Arizona over their opposition to the medicalization of marijuana, reflect the fundamental depth of the government's prejudice and misunderstanding of the illegal drug issue. Both senators essentially labeled the voters of these states ignorant and perhaps even illiterate. Mr. Kyl was "embarrassed" by the voters of Arizona and Mr. Hatch claimed they had fallen victim to campaign ads, an ironic statement to be sure.

The vote to medicalized marijuana passed 56% to 44% in California and by a whopping, 65% to 35% in Arizona. The Arizona initiative - Proposition 200 - was broader than California's by far, allowing physicians to prescribe any heretofore controlled substance, the inspiration being, a physician is more qualified in pharmacology than a D.E.A. man: a matter of eight years of medical school versus twelve weeks in a government run "academy". Proposition 200 provided for the funding of drug treatment centers and it will release prisoners convicted of possession offenses, but demand 100% prison time for violent drug offenders.

A most interesting point in Arizona's initiative was that it was endorsed by Barry Goldwater, Alan Cranston and Dennis DeConcini of whom all were hawkish on the drug issue as U.S. Senators. It was DeConcini who lined the Arizona border with Mexico with Aerostat balloons to interdict drug smuggling aircraft - an expensive failure in the War on Drugs.

The war on drugs has so warped rational thought that even the people of Orrin Hatch's stature have forgotten that this is a democracy. The federal government exists at the sufferance of the American people and not the reverse. "We the People", is not just a slogan, but the doctrine by which we live as a society.

Both Mr. Hatch and Mr. Kyl are members of the powerful Senate Judiciary Committee, indeed, Mr. Hatch is its chairman. Whenever a government criminalizes consensual behavior, it brews a recipe for failure - if not disaster. This point has been lost on these two officials, but it is a point that many federal judges, governors, law enforcement and the medical community have begun to embrace.

Following the November vote of the people, the Administration and Justice Department acted swiftly and threatened to pull the licenses and imprison any physician who might defy the Controlled Substance Act. This is federal intrusion into constitutionally mandated state's rights. But this is also the war on drugs, where the end justifies the means.

Among the war's many tragic consequences and by far the worst is the criminalization of a vast, ever increasing percentage of our population, destroying families and individuals by the millions. We are now the world's leading jailer - even communist China - who we criticize for its slave labor camps - imprisons at a lesser rate. We make mockery of the once cherished phrase - Land of the Free.

When people are arrested on felony drug charges, they are usually dragged from their homes or places of business and booked into filthy, dangerously overcrowded county jails pending bonding proceedings. Physical and sexual assault is commonplace. The arrested person generally will forfeit his job or career, long before any conviction or acquittal of charges. These people are instantly transformed from taxpayer to tax burden. Statistics bear this out; of over 50% of men employed before a prison term, less than twenty percent hold steady jobs thereafter. Studies indicate profound mental and attitudinal changes take place within an individual after five years of incarceration: depressive neurosis, hostility, anomie and withdrawal are the result. Prison levels ego.

Marriages are the first casualty of arrest and conviction - prison itself being statutory grounds for divorce in most states. The mental stress of arrest; being forced through the criminal justice system, job loss and subsequent imprisonment is often followed by the added trauma of divorce and loss of parental rights. The American criminal justice system has no regard at all for the family structure of the accused, and that cost might be a necessary evil in protecting citizens from violent crime, but drug prohibition accounts for over 50% of the 1.6 million people currently imprisoned. It is important to note that in addition to this figure, there are approximately 2.5 million drug offenders on parole or supervised release. This does not enumerate the further millions that have exited the system, having finished probation.

The destruction is massive and with a rippling effect on the family, there are between one and two million "orphans" of the drug war. This is the politic of prohibition. There are now criminal records on 50 million Americans.

"Many criminologists have begun to ponder the unthinkable: that the criminal justice system itself, rather than guarding the peace, contributes to social instability in America."

The Real War on Crime: The Report of the National Criminal Justice Commission, HarperPerennial, 1996.

What is the purpose of law? To a considerable degree in every society, public acceptance and voluntary compliance determines a law's success. Coercive power has limitations and if enough dissenters refuse to obey a law, it cannot be imposed upon them. If the law is imposed upon them, the consequences quite readily become apparent: mass arrest, clogged courts, the propensity to enforcement and judicial expediency, crammed prisons, shattered families, incredible expense and, for those convicted, the never ending handicap of a felony record to cripple the restructuring of their lives - assuming they survive their prison terms, which have, in this country, become obscene.

The acceptable limits of coercion will vary in the enforcement of such laws from country to country, and law to law. But in the United States, which has a history of hostility to official coercion, a high degree of voluntary compliance to law is a minimal consideration in determining the law's success. There are other considerations as well, including firm constitutionality and, above all, a well defined moral line. What politicians, the "Drug Czar", and this administration fail to see, is the war on drugs cannot succeed because it violates all three imperatives.

Voluntary Compliance

There exists no high degree of compliance with the drug issue because, rhetoric to the contrary, this is most emphatically not a "Drug Free America". It never has been, and likely will never be one. Aside from the legal pharmacopoeia, which runs from Prozac, Ritalin and Valium, to caffeine, alcohol and nicotine, drugs are used in their various combinations by the vast majority of citizens.

Alcohol and nicotine kill about 600,000 Americans each year. By contrast, cocaine and heroin killed an estimated 8,000 since 1989. Since the Controlled Substance Act of 1970, marijuana has killed no one. For a marijuana death to occur, a user would have to smoke about 40 pound in an hour, a feat that has yet to be accomplished.Tobacco has killed over 12 million Americans since the Act, and this does not count those who have died of tobacco exports.

A measure of the amount of non-compliance in so-called, controlled substances, can readily be seen in the virtual millions of Americans who have been convicted of possession and trafficking offenses since 1970. In addition to the 850,000 people in prison and millions on supervised release, are the further millions who are never indicted, the co-conspirators: those who "snitched", plea bargained and in so doing, traded their friends and relatives for freedom.

If one adds to that total, the number of people not arrested or who will never be arrested, the non-compliance equals an incalculable, unprecedented scale. It is non-respect for the law that utterly obviates the first elemental requirement.

Constitutionality

The very constitutionality of criminalizing all this non-compliance is suspect; after all, the salient proposition of the American Contract is that we are a nation of free men and women with the right of choice in this "land of the free". It is not, of course, for we are gulaging ourselves at a rate that positively astonishes the Free World. The much touted concept of American liberty does not only involve staying out of prison, a thing which is increasingly hard to do, but more poignantly means that we are free to do as we wish, subject to the obvious, perhaps biblical limitations.

"A prohibition law strikes a blow at the very principles upon which our government was founded. Prohibition goes beyond the bounds of reason in that it attempts to control a man's appetite by legislation, and makes a crime of things that are not crime." Abraham Lincoln

The drug war has a deleterious effect beyond its basic questionable constitutionality, for in addition to erasing a plethora of basic rights, it is bending itself thoroughly out of shape. Legal opinions, published since Chaucer's time, are now being issued unpublished in district and appellate courts. It is done this way because of expediency, because of thin or faulty rationality; because decisions are inconsistent with case law, and even through embarrassment as a way to avoid scrutiny.

Courts in the Regan-Bush era have had to bolster and justify the harsh requirements embodied within the U.S. Sentencing Guidelines, and to do so, their opinions are nearly 100% against defendants. Even alleged civil libertarians such as, Justice Thurgood Marshall of the Supreme Court, believed drug defendants were somehow exempt from constitutional tenets:

"If it's a dope case, I won't even read the petition. I ain't giving no break to no drug dealer." Thurgood Marshall to Life Magazine, 1987

However, we have since learned that Justice Marshall was an informant for the F.B.I. This attitude pervades the U.S. Supreme Court, where random urine testing of high school athletes have been upheld, and vehicle stops by police virtually anywhere, at any time, are just Jim Dandy. There does not have to be any articulated probable cause necessary, for it has become a "Cause I Say So", standard. Mandatory urine testing is now a $300 million enterprise in the U.S. The Fourth Amendment is nothing but a fond memory of a time when storm troopers were not permitted to crash in doors after an unreliable informant's tip. The FBI Academy teaches a class on how to "get around" the Fourth Amendment. We have turned this country into a police state and already possess the National Police Force barred by the Constitution..

Drugs Are Not a Moral Issue

The third element necessary in criminal law is the existence of a hard moral basis to underscore it. Such does not exist in the drug debate, and prohibitionists who moralize the issue are disingenuous: it is a mistake, and one that replaces rational discussion with propaganda and hype. This is the reason that teenagers do not listen.

Smoking marijuana is analogous to having a few beers, and it is difficult to convince a pot smoker, that what he is doing defies one of the Ten Commandments. The same can be said of any drug use; be it cocaine or tobacco, but this takes a certain logical admission that the drug hawks and religious right refuse to consider.

The drug issue is therefore aside "real" criminality, where by contrast, very stark moral lines are drawn when considering: theft, rape kidnapping, child molestation, bodily injury and murder. When consensual behavior is criminalized, it trivializes law, and so breeds disrespect for all law in general. Despite endless discussion on the subject, the government cannot convince very significant numbers of people that what they are doing is immoral. One of the government's most ironic moments was when then president, George Bush, toasted renewed drug funding with a glass of champagne, clearly revealing that intoxicants and taste, are simply a matter of chemical differences.

There is, therefore, a failure of the government to justify criminalizing drugs by the three imperatives: compliance, constitutionality and morality. But a fourth important requisite is one that is very rapidly eroding. An overall official consensus must exist if a government passes drastic, draconian laws against its citizenry. It is now glaringly apparent that this is not the case on the war on drugs. A great deal of conservative minded individuals and organizations are loudly stating that drugs should be either legalized or decriminalized. A large, growing part of the federal judiciary is refusing to hear drug cases and many senior judges, who have the option, are not sentencing drug defendants to these inordinately long terms of imprisonment. U.S. Chief Judge Juan Torruella of the 1st Circuit Court of Appeals has stated his outright opposition to the war on drugs: "Current discussion of drugs is ruled by political rhetoric and anti-drug hysteria. It is a losing battle and drug prosecutors and law enforcement have run rampant over the Bill of Rights."

Chief Judge Myron Bright of the 8th Circuit states, "These unwise sentencing policies which put men and women into prisons for years, not only ruin lives of prisoners and often their family members, but also drain the American taxpayers of funds which can be measured in the billions of dollars."

Recently the chief Judge of the 7th Circuit, the honorable Richard Posner, came out in favor of abolishing minimum-mandatory sentencing and outright legalization of marijuana. His comments are especially pertinent because he is considered to be one of this country's leading legal scholars: "Prison terms in America have become appallingly long, especially for conduct that, arguable, should not be criminal at all."

That this statement can be made in the first place, is an admission that something is drastically amiss in the criminal justice system. The fact that there is debate at all makes imposition of 10 to 40 year sentences for drug offenders all the more outrageous. Judge Posner goes on to say: "It is nonsense that we should be devoting so many law enforcement resources to marijuana. I am skeptical of a society that is so tolerant of alcohol and cigarettes should come down so hard on marijuana use and send people to prison for life without parole."

Judge Posner is of the opinion that the nation must look beyond punitive measures to deeper, broader- based solutions in its efforts to stem drug use: "Only decriminalization is a sure route to a lower crime rate. It is sad that appears so far below the horizon of political feasibility."

These comments were made before the California and Arizona initiatives and currently 60% of federal judges oppose the federal sentencing guidelines and would abolish them entirely. Well over 80% of these judges oppose minimum-mandatory sentencing and are highly critical of the lengths of sentences given to drug defendants. Many judges favor decriminalization.

Mr. Harry Brown, the 1996 Libertarian presidential candidate made the bold declaration that the war on drugs was absolute insanity and vowed that his very first act would be to personally pardon everyone convicted of a non-violent federal drug offense. These individuals are joined by such diverse factions as the American Civil Liberties Union and William Buckley, editor of the National Review. The New York State Criminal Trial Attorney's Association has just issued a 50 page paper written by a blue ribbon panel of lawyers, judges and legal scholars urging the immediate legalization of marijuana, the decriminalization of the drugs and the removal of drugs from the destructive hands of the criminal justice system.

If one accepts the premise that an overall official consensus has to exist to vitiate any given set of laws, it is clearly apparent that drug laws do not meet the criteria and what arguable consensus they once had, is rapidly eroding in the face of reality.

The politics of prohibition has driven the price of marijuana to $2,500 a pound in Milwaukee and made cocaine five times more valuable than gold per ounce. It is folly for a government to defy human nature; it is lunacy to think that people will not run the risk for such artificially high profits. However, this country is locking up drug dealers in such huge numbers that the federal system, must in effect, build one new prison every month to keep up with the flood of convicted drug offenders.

These prisons require about 350 full time staff: guards, administrators, hospital attendants. Within the next dozen years, the federal Bureau of Prisons must essentially double in size, from 110 prisons to well over 200. It costs $25,000 to feed, house and watch over each federal inmate and 70% of federal prisoners are imprisoned for drug offenses. Multiply the consistency of this expensive, wasteful equation times 50 states. Nationwide there is one prison guard to every three prisoners, while by contrast, the average teacher has over thirty students. The average prison guard makes more money than the average teacher.

Hard liners in the war on drugs, including the "Drug Czar", General Barry McCaffrey, are like the generals and colonels during the latter part of the Viet Nam war, clamoring for more divisions, more aircraft, more artillery, more ammunition. But this current, and most virulent phase of the drug war is already costing local, state, and federal governments approximately $29 billion per year. And with all this expense, there has been no tangible effect except for the furtherance of violence and the fear that America will resemble a vast concentration camp in the near future.

In addition to eroding our rights and liberties and criminalizing millions of Americans, the drug war has placed a third of all young African-American men between the ages of 19 and 29, either in prison or on supervised release. It also promotes an insidious system of informants and has made personal betrayal a federal model:

"It is common for federal prosecutors to threaten drug defendants with mandatory sentences unless they incriminate other. Many defendants decide to inform on their associates and friends in an effort to get a lighter prison sentence. This practice frays bonds of personal trust and corrodes the community cohesion that might otherwise act as a buffer to violence." From the report of the National Criminal Justice Commission, 1996

In other words, we have turned the United States into all of the things we abhorred about Russia, Cuba and Nazi Germany. The Drug Awareness and Resistance Education Program, D.A.R.E., routinely teaches children to inform on friends and parents for suspected drug use, even if they put mommy and daddy in jail or prison, destroying careers, marriages and family. Not only that, the D.A.R.E. program and its progeny, at the cost of $500 million a year, simply does not work.

"Take California for example, where, conservatively speaking, $1.6 billion has been spent over four years on prevention education in the schools. What have we bought with $1.6 billion? Programs that do not prevent adolescent substance abuse." Joel H. Brown, Ph.D, M.S.W.

These findings are from one of the most comprehensive evaluations of prevention education undertaken in the United States: the Pacific Institute for Research and Evaluation's study of California's drug, alcohol, and tobacco education, the so-called D.A.T.E. programs. It can be assumed, that the impact of these programs did more to create a generation of "snitches", than it did curbing the use of drugs among the young.

The war on drugs has helped spread the AIDS epidemic by its hard-line stance on needle exchange programs. Of the 40,000 known new incidents per year, nearly half are caused from dirty needles used by intravenous drug users. In the recently held AIDS Conference in Canada, American medical representatives unequivocally declared that the war on drugs should be called off for the necessity of the needle exchange program alone, never minding the malodorous consequences, besides which heroin addicts die not from heroine itself, but from erratic potency and impurities in the "cutting" agents.

The war on drugs has corrupted police and judges and made agencies within the U.S. government highly suspect. The CIA is under constant fire for implicit drug smuggling and giving it tacit approval by protecting drug smuggling operatives. Virtually the entire African-American community is convinced that the government itself, not only smuggles drugs into the country and manipulates market price, but has actively targeted the inner city for drug distribution. Nothing the government can say will change this perception.

Additionally, entire foreign countries have been destabilized by narco dollars, money that could be otherwise spent at home where the price of drugs brought to realistic levels by a system of regulation and taxation, perhaps such as alcohol has, rather than the dubious, failed objectives of prohibition.

There are gang wars and turf wars over drugs which have killed and wounded thousands; the Roaring 20's all over again, only far worse, for it is causing danger to police and its attendant, wary hostility to us all. The drug war has also fostered a heinous asset forfeiture empire, a half billion dollar per year enterprise where 80% of those individuals who have property seized, are never criminally charged. Their goods are not returned however, and most can not afford the process by which they could attempt to retrieve their lawful property.

The war has made an inherent mess of state and federal sentencing guidelines and every hawk should think this over: their own children can fall victim to the system, a simple matter of place, time, bad judgment, opportunity - perhaps rebellion - the urge for a quick buck; then it is bang! and bye-bye for 10 or 20 years. It has already happened and drug war hawks, become drug war doves in a quick hurry when the fatal flaw in their programs hit home.

If there was a counterbalance, something to indicate less people were using drugs; if there were fewer kinds of drugs available in lesser quantity; if people were more secure, rather than the reverse, by prosecuting drug crime in the manner our government has so chosen, one might acquiesce to some of these costs. This has never been the case however, nor is it likely under the current system.

Our American culture has become a hyped-up, super speed society where the media drives materialistic values into a person's very core. It should come as no surprise when, having stripped certain classes of people of meaningful jobs, (not flipping hamburgers, but jobs that can support a family), that persons are seduced by the lure of high, quick, tax-free profit. One should more appropriately wonder what intricacies of American life causes the psychic pain which only an altered state of mind allays. Rather than seek the answers to this thorny question, a veritable Pandora's box of social ills with the attendant need to resolve them, politicians make scapegoats of natural impulses and crime of consensual activity.

The drug war is a diversion as well. For law enforcement, it is easier to make a drug bust, than solve a rape, burglary or murder. The war against drugs is also a war on our own and a great social tragedy by virtue of the sheer numbers involved. It could be characterized as a civil war and certainly the longest, most costly and hopeless in our history.

During the Prohibition era, Judge James Priest, an anti-prohibition leader, had this to say about perceived morality and government interference: "Every government that has attempted to legislate for the uplifting of the moral sense of its people or to suppress the vices of its people has inevitably come to grief."

Nothing whatsoever has changed in human nature to alter this fact. Only government sophistication in law enforcement has changed, the technical ability to wage war by law with arrest, forfeiture and incarceration. What is the true result of this policy? What will we reap by causing so much anger and resentment? Is it necessary to destroy the village to save it? Surely a nation such as this can come up with more compassionate solutions. Yes, drugs can harm you and one should not use them, but if a person persists, they are forewarned of the consequences. What we have instead, is a savage state of affairs, where hypocritical intolerance and the adage "a criminal system of justice" is an absolute truth. It is time, long past time, to end the war on drugs.

"I was in prison and you came to visit me." Jesus of Nazareth, Matthew 25:36

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Sources

Dan Baum, Smoke and Mirrors: The War On Drugs and the Politics of Failure, Little/Brown, 1996

Joel Brown, Listening To Students, The Drug Policy Letter No. 30, Summer, 1996

Stephan Donziger, The Real War on Crime: The Report of the National Criminal Justice Commission, 1996

David Kyvig, Repealing National Prohibition, University of Chicago Press, 1979

Marsha Rosenbaum, Lessons in Harm Reduction, The Drug Policy Letter No. 30, Summer 1996

Peter McWilliams, Ain't Nobody's Business If You Do: The Absurdity of Consensual Crimes in a Free Society, Prelude Press, 1993

Peter Trebach, Why We Are Losing the Great Drug War and Radical Proposals That Could Make America Safe Again, Macmillan, 1987.