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

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

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

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Jun 24, 2014


America's war on drugs. It makes headlines, tops political agendas and provokes powerful emotions. But is it really worth it? That’s the question posed by Steven Duke and Albert Gross in this groundbreaking book. They argue that America’s biggest victories in the war on drugs are the erosion of our constitutional rights, the waste of billions of dollars and an overwhelmed court system. After careful research and thought, they make a strong case for the legalization of drugs. It’s a radical idea, but has its time come?

Jun 24, 2014

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Steven B. Duke, LL.M has held the chair of Law of Science and Technology Professor at Yale Law School, where he has taught since 1961.

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America's Longest War - Steven B. Duke



America has been using the force of criminal law against its citizens to punish them for consuming disfavored drugs for nearly eighty years. The intensity of those efforts has frequently been described as a war. As such, it is America’s longest and most self-destructive war.

One of the casualties of war is truth. A prime example of that occurred on September 5, 1989. On that day, in his first television speech to the nation as President, George Bush stared into the cameras, held up a clear plastic package marked evidence, and solemnly intoned that he was drastically escalating the war.¹ The President was not speaking of war against another nation or against an evil leader; he was talking about a war against a class of inanimate objects—illicit drugs.

Inside the package that the President held aloft was rock cocaine, harvested earlier that day from Keith Jackson, a nineteen-year-old dope peddler enticed by law-enforcement officials to a drug sting in Lafayette Park, across the street from the White House. Far from being a regular trader at that venue, Jackson needed travel directions from his sham customers to enable him to find the White House. The purpose of the staged drug deal was to permit the President to suggest that drugs were being dealt virtually on the steps of the White House, and thus that the country was in grave peril. Such theatrics are reminiscent of the unprovoked attack on American ships in the Gulf of Tonkin that triggered our war against North Vietnam.²

Since Keith Jackson invaded Lafayette Park, the federal government’s annual spending in the war against drugs has doubled. Civil liberties have been curtailed at almost every turn in the interest of the drug-war effort. As with the Vietnam war, moreover, our leaders have repeatedly seen the light at the end of the tunnel.

As in most wars, numbers emerge that suggest that victory may be on its way. Casual use of illegal drugs appears to have taken a downturn, not since President Bush escalated the war against drugs, but since 1980. However, the number of people who use cocaine weekly, the addicts, virtually doubled since 1985. Thus, we are told, the war seems to be working with the casual user—the middle-class experimenter. However, it seems to be having little impact on hard-core addicts who may be willing to steal or kill to feed their cravings.

Crime rates have been in a general uptrend in this country for three decades despite a strong force in the opposite direction: the aging of the population. Teenagers, who commit a disproportionate share of our violent crimes, are a smaller and smaller proportion of the population. Still, in many of our cities, murder rates are at record highs, reflecting turf wars between rival drug dealers and other drug-related violence. The drug war has made these problems worse, not better.

George Bush was not the first president to invoke the imagery of war in an effort to induce the nation to support his antidrug efforts. President Reagan declared a war against drugs in October 1982, in a radio address to the nation. President Nixon, almost a decade before that, had labeled drugs public enemy number one and declared all-out global war on the drug menace. Victory has never been in sight. On the contrary, except for minor setbacks and lulls, the enemy has steadily advanced during that period. The drug problem, broadly understood, has never been worse in this country than it is today.

We are spending more than $12 billion a year on the drug problem at the federal level and far more at the state, city, corporate, and private levels. Fifty billion dollars in annual expenditures to curb our national consumption of illegal drugs is a reasonable estimate.

We are losing perhaps $100 billion per year more in drug-related crime, medical costs, and lost productivity. Another $60 to $100 billion is spent every year by consumers to purchase the illicit drugs themselves. The total annual cost of the drug problem in dollars, therefore, may be as much as $200 billion, more than the entire annual deficit only a few years ago.

That estimate does not take account of what we spend on the two major licit drugs, alcohol and tobacco, the true costs of which may exceed those of the illegal drugs.

Nor does it include another figure that, if measurable, would make the others appear microscopic in comparison. Throughout our nation, in city after city, drug dealing and the violence and intimidation that accompany it have converted family neighborhoods into war zones and fear-ridden, rat-infested slums. Gangs of hoodlums fire automatic weapons at each other, killing innocent bystanders. Life in many inner cities has become unbearable; and the schools, filthy fiefdoms of the drug gangs. The destruction of property values attributable to the commerce in illegal drugs is staggering. Block after block of the once-stately residential buildings in our inner cities is simply being abandoned to crack dealers or other criminals.

At the same time, health and welfare expenditures are being drastically reduced, cities are literally going bankrupt, needed schools and libraries are closing, police and fire department staffing and budgets are being reduced, our doors are closed to the homeless, and taxes and deficits are soaring.

Many of our most serious social problems are directly related to the intensity of the war against drug distribution and use. Most drug overdoses, including poisonings from contaminated drugs, are attributable to the illegality of the market. The possibility of a family life is eliminated for thousands of children because one or both parents are jailed for a drug-related offense. Our prison population has doubled in seven years, and one in four black males in his twenties is either in jail, on probation or on parole, mostly for drug-related offenses. As much as half our violent and property crime may be related to drug prohibition: either committed as part of a drug-distribution scheme or to get money with which to buy and consume illegal drugs. Both the human and the economic costs of the drug war are staggering.

Our aim is to examine the effects of intense criminalization of drug commerce on both the consumption of drugs and the health of our basic institutions. The victims of wars are never limited to the enemy; innocent people and precious institutions are also damaged and die. This is as true of a war on drugs as it is of a real war. We also explore and applaud alternatives: drug education and treatment for drug abuse.

People are induced to change their behavior by education—increasing their knowledge of the behavior itself, by threats or inducements, or a combination of both, together with appeals to morality. The war on drugs utilizes all these methods, but the emphasis is on the punitive. Nearly two-thirds of the federal drug budget is earmarked for law enforcement. Drug dealers receive savage sentences, even life without possibility of parole. There is talk about imposing the death penalty on them or even shooting them on sight. Drug consumers are also being punished, most noticeably by forfeiture of their homes, cars, boats and other valuables merely because they were used to consume or store small quantities of marijuana or other drugs. For the first time in our nation’s history, the federal government now claims the right to compel schools and colleges to punish students who use or possess illicit drugs. Judges are now authorized to suspend licenses and welfare and other benefits of those convicted of drug offenses. Efforts to ferret out and punish drug criminals have intensified, and courts increasingly approve deprivations of civil liberties in the name of drug-war necessity. These efforts threaten to destroy much that is fundamental and unique about America and its Constitution. The costs of conducting the war might be justified were a Hitler invading our shores, but are they warranted when the enemy is a chemical that is harmless unless ingested by human beings?

Our conclusion, like that of a growing and articulate chorus, is that the costs are not remotely justified; that much of the drug-war artillery is worthless and in many cases is counterproductive. The casualty rates among those who have nothing to do with illegal drugs is unacceptable. We also assess the arguments in favor of legalization and conclude that regulated legalization—though not unfettered availability—should be pursued.

We do not lightly arrive at the pro-legalization conclusion, nor did it originate with us. Once an unthinkable—or at least unmentionable—solution to major aspects of the drug problem, legalization is now an option seriously proposed by prestigious publications such as The Economist, statesmen such as George Shultz, jurists such as Robert Sweet, academicians such as Milton Friedman and Ethan Nadelmann, social commentators such as William F. Buckley, Jr., and Ernest van Den Haag, law-enforcement officers such as former San Jose police chief Joseph McNamara, and politicians such as Mayor Kurt Schmoke of Baltimore. Those advocates have made some convincing arguments for legalization, and in the pages that follow we will present them, as well as our own, for this drastic though sensible remedy for an intolerable status quo.

We concede that the issue is debatable; that reasonable policymakers can differ on whether heroin and cocaine, like tobacco and alcohol, should be freely available, at low cost, to any adult desiring to purchase them. A rational case cannot be made, however, for the garrison state that we are in the process of creating. Long after the appetite for currently illicit drugs has subsided or been transferred to lawful drugs or other substitutes—or we have decided to permit our people to make their own decisions about chemical use—we will need our institutions and our civil liberties. The battles to recapture our liberty and our integrity may be fiercer and even more formidable than the drug wars in which they were lost.

1 Televised address of President George Bush, 5 September 1989. See Los Angeles Times, 6 September 1989, A1.

2 See John Hart Ely, The American War in Indochina, Part 1: The (Troubled) Constitutionality of the War They Told Us About, Stanford Law Review, 42-2, 1990, 877, 884–91.

Chapter 1

An Overview: The Greater Evil

The chief cause of problems is solutions.

—Eric Sevareid¹

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

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

The Evils of Drug Consumption Per Se

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

Adverse Effects on Physical Health

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

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


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

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


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

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

Effects on Work and Incentives to Work

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

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

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

Effects on Quality of Life

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

Drugs that America regards as illicit provide equivalent pleasures to many, far greater pleasures to some, and this has been true for centuries, in most cultures. In fact, use of both opiates and cocaine was common among upright citizens in America and elsewhere in the latter half of the nineteenth century. Freud used cocaine and advocated it as a cure for fatigue, foggy thinking, and many other conditions. Several of our presidents,² including perhaps even the abstemious Abraham Lincoln,³ also used cocaine. Ulysses S. Grant was apparently a user of both morphine and cocaine, as well as alcohol and tobacco.⁴

We do not produce these examples to besmirch historical figures, but to show that it is the modern stigma attached to drugs—not any inherent quality of the chemicals—that makes their use shocking. As reported by Edward Brecher, when these drugs were legal and were as widely, if not more widely, used as they are today, few serious problems with their use were noted.⁵ Few users found such drugs to interfere seriously with the quality of their lives.

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

Although the evidence is inconclusive, we think that the use of heroin and cocaine in a free market system would adversely affect the quality of the lives of the users and those around them in a way not appreciably different than does alcohol use. Roughly the same proportions of users would become abusers, and their abuse would be approximately as crippling to life’s other enterprises as abuse of alcohol.⁶ But the total number of drug abusers in a free market system would not be essentially different than is the case in our hybrid system of legalization. In a free market system hardly anyone would be a drug abuser who does not already abuse at least one psychoactive drug. The negative contributions of marijuana would be far less than heroin, cocaine, or alcohol.

The Evils of Efforts to Prevent the Use of Drugs

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

Global Evils

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

Our government has also become a kidnapper. Our drug agents have actually gone to South America, kidnapped suspected drug kingpins and forcefully brought them to the United States for trial.⁷ In the case of Manuel Noriega, we did it on a grand scale, sending our army to invade Panama, in part for the unprecedented purpose of kidnapping the leader of another sovereign nation and bringing him to the United States for trial.

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

Interdiction Evils

Drugs produced elsewhere for our markets have to clear our border. That is not difficult. Most authorities estimate that at least 90 percent of the illicit drugs destined for the United States are successfully smuggled into the country. But the smuggling process, involving high-tech boats and airplanes, sophisticated secretion of the drugs, and counterintelligence that often involves bribery of our officials, is also very costly. Once the drug actually crosses our border, its caretakers, consignees, and purchasers on this side of the border are under much greater risk of being caught, convicted, and imprisoned. As a result, the free market price of cocaine and heroin is increased between 70 and 140 times!⁸ Imported commodities that would cost in toto perhaps a hundred million dollars in a free market cost $60 to $100 billion under prohibition.

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

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

Corruption Costs

What is the result of all this money flowing in illegal, clandestine channels among armies of criminals whose lives are under constant threats from within or without? Corruption of policemen by the hundreds. Prosecutors, judges, legislators, lawyers, bail bondsmen, witnesses, jailers are all under great corrupting influences, and many succumb. Our federal judges are among the least corruptible in the world; scandal rarely touches them, yet U.S. district judge Robert Collins was recently convicted of accepting bribes in a drug case,⁹ and U.S. district judge Walter Nixon was convicted of perjury in a drug-case investigation.¹⁰

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

Crippling Our Criminal Justice System

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

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

Seduction of Our Children

The multibillion-dollar drug business seduces our young away from more mundane, longer-term efforts to achieve material and social success in an increasingly competitive economic system. Educational efforts are hampered by the presence of the dandies in fancy clothes and costly cars who are so conspicuous in America’s lower-income neighborhoods. A decade ago many of us were worried that the existence of the millionaire basketball player was sending an unrealistic, seductive message to our young people that diverted them from serious education. The major rival of that image is now the corner drug dealer. The huge salaries of professional athletes are no longer perceived as a major problem but rather as part of the solution: persuade our youngsters that they can get rich playing basketball or football or prizefighting, and they may spend their free time in gyms rather than running dope. Unfortunately, the gyms are not available because our frenzied preoccupation with the drug war has led us to misappropriate the funds needed to build recreational and even educational facilities in our cities.

Health Evils

Much of the damage to health inflicted by drugs is the result of criminalization. Drugs are taken by contaminated needles because unauthorized needles are illegal. Drugs are injected rather than taken some safer way because they are so costly and injection gives better bang for the buck. The illegal black market is unregulated, so that consumers have no assurance that the drugs they buy have the purity represented, or even that they are drugs: sometimes they are poison, or they are cut with chemicals that are more harmful to health than the drugs for which they were surreptitiously substituted. One who is cheated in the drug business cannot resort to the legal system for redress, but must look to extralegal systems.

There are manifold other evils generated by the war on drugs. We consider most of them at length later. It is sufficient here to note that what most of us think of as manifestations of the drug problem are usefully thought of as by-products of criminalization. While there would be no problem if there were no drugs, or if there were no appetite for drugs; neither would most of these problems exist if drugs were legal.

These enormous costs of criminalization might still be a bargain if, after a few years of intensive enforcement efforts, the illicit-drug problem were eliminated, once and for all. If we can be certain of anything related to this subject, however, it is that no such happy ending is possible.

We may reduce the number of consumers of illicit drugs by our drug war, but it is unlikely that we can have any considerable impact on the hard-core users, the users we commonly refer to as addicts. Hard-core addicts have little to lose by threats of forfeiture or imprisonment. They have already lost, or soon will lose, family, job, status, property (or never had them to begin with). The threat of punishment has a hollow ring. Since addicts—daily or at least weekly users—may consume 80 percent or more of our illegal heroin and cocaine, we may greatly reduce the numbers of occasional users without substantially diminishing the overall demand levels for the drugs. If the demand levels remain fairly constant, virtually all of the drug-enforcement evils will remain in place.

Unless we relent, our intensive criminalization of drug commerce will be so stressful that our society will disintegrate from the strain, as it has already begun to do in our inner cities and as some areas did during alcohol prohibition. Gangs will kill for fun, as well as for drug turf. Our cities will seem like purgatory. Our suburbs will also be plagued with crime.

We will eventually retreat from an unwinnable war, just as we did in Vietnam. But in the drug war, as in Vietnam, the dead will be gone forever, and wounded will remain so for a very long time. We should de-escalate now, and at least selectively and provisionally, legalize.*

Clearly, however, government has a productive role to play in reducing drug abuse. The government has engaged in laudable efforts to persuade people to reduce their intake of alcohol and tobacco, and with considerable success. Therapeutic assistance to abusers of both legal and illegal drugs has also been too successful to justify its limited availability. All users or abusers of any psychoactive drug, whether tobacco, alcohol, heroin, cocaine, marijuana, or any other who seek help to curb or discontinue their use should receive such help at public expense. (The savings in health costs and crime alone more than justify the expenditure. Compassion need not enter into the matter.) Hardly anyone could seemingly disagree, yet help is often denied even the chronic addict on hard drugs. Both education and treatment work, and if we devoted the resources we now spend on criminalization to education and treatment, our cost of drug use would be drastically diminished, whether or not drugs are legalized.

Under prohibition, the innocent suffer at every turn. The users of illegal drugs do not bear even a fraction of the economic and social costs of their drug use; the nonuser bears a large portion: in unsafe streets, overcrowded, expensive prisons, diluted law-enforcement resources, hospital emergency rooms filled beyond capacity, and inner cities becoming unlivable. In a system in which recreational drugs were legal, virtually all of these social costs would disappear overnight. We would still have some health problems associated with drugs. We would still have deaths by overdose, perhaps more than we have today, but we would have freed tens of billions of dollars to attack the problem of drug abuse in constructive ways, including treatment, education, and meaningful vocational opportunities to those involved in, or tempted by, drugs. We would still have heroin and cocaine abusers, just as we have alcoholics and heavy smokers, who would pose serious social and medical challenges. But for the most part, under such a system, the drug abusers would pay the penalty for their abuse, and the penalty would be greater than it now is because the alternatives or choices available to them—which they would be giving up to be or remain an abuser—would be far more attractive than they are today.

1 Town & Country, May 1979.

2 Ronald K. Seigel, Intoxication: Life in Pursuit of Artificial Paradise (New York: E. P. Dutton, 1989), 266–76.

3 Ibid., 260.

4 Ibid., 262–65.

5 Edward Brecher and the Editors of Consumer Reports, Licit and Illicit Drugs (Boston: Little Brown and Company, 1972) 7, 42.

6 See Douglas Husak, Drugs and Rights (New York: Cambridge University Press, 1992), 124–25.

7 Stephen J. Hedges and Gordon Witkin with Anne Moncreiff Arrarte, Kidnapping Drug Lords: The U.S. Has Done It for Decades, But It Rarely Causes Trouble, U.S. News & World Report, 14 May 1990, 28–30.

8 Steven Wisotsky, Crackdown: The Emerging ‘Drug Exception’ to the Bill of Rights, Hastings Law Journal, 38 (1987) 889–926, at 895, estimates that a $2–$3 gram of pure pharmaceutical cocaine becomes an $80–$100 gram of 35 percent street cocaine. From this it is possible to project that pure (100 percent) cocaine would have to cost between $228 and $285 per gram, or almost three times as much as does 35-percent cocaine. Dividing the range of street prices by the pharmaceutical prices, we can deduce that street cocaine costs somewhere between 70 and 140 times as much as pharmaceutical cocaine.

9 See Daniel Seligman and Patty de Llose, The Case of the Crooked Bench, Fortune, 25 March 1991, 139

10 Judge Nixon says he ‘Has Nothing to Hide,’ National Law Journal, 2 October 1989, 5.

* We use the terms legalize and decriminalize as synonyms in this book. Some analysts draw a distinction, proposing decriminalization as a compromise between prohibition and legalization. Such proponents often mean by decriminalization punishing the sale but not the consumption of drugs. We think that makes little sense. It was, in fact, the system we suffered under during alcohol prohibition.

Chapter 2

Identifying the Enemy: Drugs, Drug Abuse, and Other Concepts

In terms of drug use the rarest or most abnormal form of behavior is not to take any mind-altering drugs at all. Most adult Americans are users of drugs, many are frequent users of a wide variety of them.

—Presidential Commission’s Task Force on Narcotics and Drug Abuse¹

Few important concepts are fuzzier than the meaning of drug. The Random House Dictionary of the English Language, second edition, lists nine definitions. However, no conception of drug comes close to describing what we as a society commonly think of as drugs. The reason, as SUNY professor Erich Goode says in Drugs in American Society, is that the concept of drug is a cultural artifact, a social fabrication.² The only characteristic that all drugs share and nondrugs lack is the societal label drug. Among the many aspects or dimensions of a substance that contribute to the likelihood of its being called a drug by Americans are its medical utility, its psychoactivity—the extent to which it affects mental processes, its utility as a recreational substance, its illegality for general consumption, and finally, how many people think of it when asked to give examples of a drug.³

A few generations ago, not many Americans thought of tobacco or alcohol as drugs, yet today virtually all who have professional interests in drugs do so. These substances are rarely taken as food and have little utility other than mind or mood alteration. Were they not specifically exempted by federal law, they would both be controlled as dangerous drugs. They are examples of substances that meet almost any definition of drug but are still not generally considered by the law or by some people as drugs.

There is, in any event, little basis for disagreement about the proper classification of the drugs we consider in this book. With the exception of tobacco and alcohol, which are behaviorally and pharmacologically but, only to some extent legally, classified as drugs, the other major drugs we are concerned with—heroin, cocaine, and marijuana—are drugs in every sense of word. They are legally classified not only as drugs but as a special kind: controlled drugs—drugs that are mind- or mood-altering and involve some hazards.

Although our primary focus in this book is on only five psychoactive drugs—alcohol, tobacco, marijuana, heroin, and cocaine—the number of psychoactive drugs on the planet is almost infinite. Literally hundreds are known to exist in the continental United States. The rain forests of the Amazon contain perhaps thousands more. Psychoactive effects are a common result of ingesting plant substances. According to Professor Ronald Siegel, we may have discovered less than 10 percent of the world’s plant drugs.⁴ Moreover, new laboratory-produced, synthetic designer drugs are being discovered every day. There is literally no limit to the number of mood-altering drugs that can be brought to market.

We largely confine our analysis to these five drugs because they constitute the main subject matter of today’s drug problem. These are our five psychoactive drugs most commonly consumed for nonmedical purposes. Heroin, cocaine, and marijuana are the drugs that most consumers use illicitly, the prohibition of which has produced our gigantic, catastrophic black markets. How we as a society regulate less popular drugs is interesting and even important, but it does not present a public-policy issue of great magnitude or urgency.

Virtually every conceivable legal approach to the drug problem is now in place with respect to one or more of these five drugs. The relative dangers of the five, both to society and to the user, stretch across a broad spectrum, from astonishing safety to dire dangerousness. Yet the disparate legal approaches we have in place for each of the five do not match up with the broad spectrum of drug dangers. America’s approach to psychoactive drugs is incoherent, contradictory, and hypocritical.

In considering the role of law in drug control, it is still useful to have at least a superficial sense of the alternative recreational drugs awaiting their place on center stage in America’s drug follies, for, as history demonstrates, the identities of the drug enemy are in a constant state of flux. Yesterday’s panacea is tomorrow’s poison. Recreational drugs come in and out of fashion like clothing styles.*

Apart from the vagaries of taste, changes in a drug’s availability and in perceptions of its dangerousness affect the direction of drug consumption and cause the rediscovery of a currently unpopular drug. For example, the discovery of amphetamines in the 1930s all but destroyed the meager market for cocaine for thirty years or so. Our experience with speed freaks, in Haight-Ashbury and elsewhere during the 1960s, then suppressed the appetite for amphetamines and contributed to the stampede into cocaine in the 1970s. Now, as evidence of the debilitating power of cocaine mounts, drug users are beginning a search for alternatives. The hallucinogen LSD, which lost popularity since the 1960s, is said to be staging a comeback.

The discovery of new drugs and new applications of old drugs (including vaccines) during the twentieth century has accomplished wonders in extending the human life span and the quality of life. Drugs are virtually the foundation of modern medicine. Psychoactive drugs are central to the practice of modern psychiatry. Little but warehousing was done for psychotic patients until the discovery, mostly since World War II, of modern psychotropic drugs. Such drugs permit millions to lead normal lives today. In American society, moreover, depression, anxiety, insomnia, and other mood disturbances are almost as common as headaches. The suffering associated with these disturbances is drastically relieved by antidepressants, tranquilizers, sedatives, and other psychoactives. The drugs that accomplish so much good for the millions with mood disturbances are also at least potentially available for today’s illegal-drug users. Not only are the drugs they use often the same ones prescribed by doctors, there is no clear difference between the function of medication by many psychotropic pharmaceuticals and the function of recreational drug use. In both cases, the user may be seeking relief from misery with the help of drugs.

Classifying Drugs

Psychoactive drugs that are used recreationally (and also, in many cases, medically) are generally subdivided into several groups depending on their principal or usual effects when taken by human beings:

1.   Stimulants. Drugs which directly affect the central nervous system and tend to produce arousal, alertness, or even excitation and which remove or inhibit lethargy and fatigue are stimulants. They include amphetamines (known in recreational-drug circles as speed), cocaine, caffeine, nicotine, and Ritalin.

2.   Depressants. Drugs which retard the flow of signals through the central nervous system and tend to produce sleep, relaxation, or lethargy are depressants. These are further divided into narcotics and non-narcotics or general depressants. Narcotics inhibit a main function of the central nervous system, the perception of pain. These are the opiates—morphine, heroin, codeine, and various synthetics such as Percodan, methadone and Demerol. General depressants inhibit bodily functions more broadly, producing relaxation or drowsiness. They include alcohol, sedatives, and tranquilizers.

3.   Hallucinogens. These drugs tend to produce hallucinations, hence their name.

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