March 14, 2004 - The Denver Post (CO) U.S. Stuck In The Quagmire By Robert Hardaway, professor of law at the University of Denver College of Law and the author of 'No Price Too High: Victimless Crimes and the Ninth Amendment' (Praeger Publishers, 2003).

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Every year, more than 400,000 Americans die as the result of tobacco use. Alcohol abuse results in the deaths of another 110,640 Americans, including 16,653 alcohol-related traffic deaths. Alcohol is a major factor in more than half of all homicides and rapes, 62 percent of assaults, and 30 percent of suicides. Illegal drug use causes another 3,562 deaths.

According to the Cato Institute, based on deaths per 100,000 users, "tobacco kills 650, alcohol 150, heroin 80, and cocaine 4."

If an observer from another planet - say, Mars - were to analyze these statistics, he might be surprised to learn that out of tobacco, alcohol and other drugs, only the others are criminalized in the United States.

Our observer from Mars also might be startled to learn about the price Americans are prepared to pay to protect these 3,562 privileged Americans from taking drugs and possibly jeopardizing their health:

The expenditure of more than $80 billion annually to arrest and incarcerate hundreds of thousands of citizens, using large chunks of America's scarce jail capacity and necessitating the early release of murderers, rapists and child molesters. A Cook County, Illinois, prosecutor has described the devastating effect of the war on drugs: Whereas he once had a relatively light case load and could take to trial those charged with the most vicious and violent crimes, after the drug war began, he was so overloaded with drug cases that he had no choice but to award "giveaway" plea bargains to even the most violent of criminals;

The imposition of thousands of raids, searches and wiretaps on American citizens;

The forfeiture of billions of dollars of potential tax revenues to organized crime;

The commission of more than one-fifth of all property crime in the United States, amounting to billions of dollars annually, by addicts seeking money for drugs made artificially expensive by criminalization;

The corruption and undermining of our political system, particularly at the local level.

If our Martian were acquainted with ancient history, he might be tempted to observe that whoever these 3,562 drug-using Americans are, they launched more ships and mobilized more of society's resources than the legendary Helen of Troy.

Our observer would surely assume that the incarceration of hundreds of thousands of citizens and the expenditure of such a huge portion of the national treasure must surely have achieved tangible results. But he would have to be informed that while such efforts have indeed reduced drug imports by 5 percent, this modest "success" has perversely done nothing more than raise the price of drugs, increase the profit margin to drug dealers, and thereby send a signal to the drug producers to produce more drugs - with the result that the number of drug users has risen dramatically since the war on drugs was launched.

The word "quagmire" must surely have been invented to describe a war in which every "victory" constitutes a stinging defeat.

Our Martian might not be surprised by this consequence if he were also apprised of our experience during Prohibition (1919-1933). Like the modern-day drug prohibitionists, the alcohol prohibitionists focused solely on the undeniable deleterious effects of alcohol, rather than conducting a rational cost-benefit analysis of prohibition. In 1929, the Wickersham Prohibition Commission revealed not only that "crime had increased by 50 percent as a result of Prohibition" but that consumption of alcohol had perversely doubled during the Prohibition years. Even more discouraging was the revelation that the number of alcohol deaths skyrocketed by more than 400 percent during Prohibition.

Nevertheless, those accustomed to Prohibition in 1930 could not imagine its repeal. Sen. Morris Sheppard of Texas confidently asserted: "There is as much chance of repealing the 18th Amendment [prohibiting alcohol] as there is for a hummingbird to fly to the planet Mars with the Washington Monument tied to its tail."

Although almost half of all Americans have used illegal drugs, those same Americans continue to favor drug prohibition - just as Americans in the 1920s overwhelmingly favored alcohol prohibition. But collective memories are often short, and many Americans today assume that drugs were originally criminalized in the United States as a means of protecting the health and safety of its citizens.

Au contraire.

In the early 20th century, labor leader Samuel Gompers set forth his reasons to Congress why opium should be criminalized: "Opium gives the Chinese immigrant workers an unfair advantage in the labor market."

Racists in Congress supported drug criminalization in order to suppress the "Jew peddlers," while the State Department's "opium commissioner," Hamilton Wright, urged criminalization of cocaine on grounds that it turned African-Americans into rapists of white women.

On such specious and racist foundations were drugs criminalized. (It is perhaps not an irony that today, at a time when African-Americans struggle for economic opportunities, they make up 90 percent of those actually prosecuted and incarcerated for minor drug offenses. The devastating impact on the families, social fabric, and economic opportunities for African-Americans is virtually impossible to measure.)

Indeed, drugs were considered only a "minor medical problem" prior to criminalization in 1914. In the 1920s, Congressman Richard Hobson was one of the first to realize the specious justifications for criminalization and its terrible consequences: "Ten years ago [before criminalization] the narcotic drug addiction problem was a minor medical problem. Today, it is a major national problem, constituting the chief factor menacing public health today."

Just as alcohol deaths skyrocketed during Prohibition, drug deaths increased after criminalization, since illegal drugs are not subject to orderly regulation for purity and safety. But the largest number of deaths is due to drug criminalization itself. More than 1,600 murders occur every year by drug dealers who take advantage of the profit opportunities afforded by drug criminalization.

But what would happen if drugs were decriminalized? Prior to 1914, drugs were legal in the United States but constituted a very minor problem in society. Hundreds of over-the-counter products ( such as Mrs. Winslow's Soothing Syrup and many popular soft drinks, including Coca-Cola ) contained drugs which have since been criminalized. But, as researcher Ethan Nadelman has noted, "Free access did not lead to widespread use. No drug houses blighted neighborhoods, no drug gangs had street-corner shootouts, and 'drug-related' crime did not exist."

Doctors even prescribed opium as a treatment for a disease considered substantially more harmful than drug addiction: alcoholism. That scenario changed drastically after criminalization.

Why did drug use increase so dramatically after criminalization? As conservative economist Milton Friedman's comprehensive drug study has revealed, the very fact that a drug is illegal makes it attractive as a "forbidden fruit." This explains why marijuana use by high school students is considerably higher in the United States than in Holland, where such drugs are available in coffeehouses.

If the untold deaths and crushing taxation required to conduct the drug war were not sufficient reasons to rethink drug criminalization, the fact that it supports and fosters organized crime should at least give pause. As the Block study concludes, "Better to ruin [organized crime's] profit balloon than by acting in a way which only supports them."

The repeal of Prohibition in 1933 left organized crime in danger of extinction. The continued prohibition of drugs saved its hide, and it has thrived ever since.

One can only imagine how the billions spent on incarcerating people for minor drug offenses might be used to rehabilitate, educate and treat drug victims.

Prior to 1922, 16 states criminalized the use of cigarettes, but it didn't work. Tobacco use skyrocketed, the states lost tax revenues, and organized crime had a field day. Contrast this aborted attempt at criminalization of tobacco use with the education and rehabilitation campaign begun by the surgeon general in 1965: Between 1965 and 1987, tobacco consumption by adult males declined by 36 percent. If harm were the sole justification for prohibition, cigarettes - which are the cause of 400,000 deaths a year - should be at the top of the list.

By ignoring the lessons of cigarette and alcohol prohibition, we are repeating the mistakes of the past and becoming mired in the real quagmire of our time.