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Politics and Passions - Winter 1995-96

Part 28
Drug Legalization

Thomas Jefferson, founder of the Democratic Party, stated that "The legitimate powers of government extend to such acts as are only injurious to others. But it does no injury for my neighbor to say there are 20 gods or no God. It neither picks my pockets nor breaks my leg." Science fiction writer Robert Heinlein in The Notebook of Lazarus Long, also wrote that sin lies only in harming others -- all other "sins" are imaginary. This is an essentially "libertarian" philosophy with regards to "victimless crimes." If an activity is "victimless," the government has no authority over it.

Should drugs be legal? Persons believing in civil liberties have reason to view drugs with caution. Tobacco and alcohol cause more damage in our society than any other drug, and the principle reason for this is because they are legal and thus socially acceptable. Former United States Surgeon General Joycelyn Elders supports drug legalization.

A pamphlet entitled 10 Things Every Parent, Teenager and Teacher Should Know About Marijuana..., produced by the Family Council on Drug Awareness tells us marijuana is not physically addictive. The 1980 Costa Rican study, the 1975 Jamaican study and the 1972 Nixon Blue Ribbon Report concluded that marijuana use does not lead to physical dependency. Tobacco causes 395,000 deaths per year, alcohol causes over 125,000 deaths per year, and prescription drugs kill up to 27,000 each year, but no one has ever died from smoking marijuana.

The FBI reports that 65 to 75 percent of criminal violence is alcohol-related. On the other hand, Federal Bureau of Narcotics director Harry Anslinger testified before Congress in 1948 that marijuana leads to nonviolence and pacifism.

In a message to Congress on August 2, 1977, then President Jimmy Carter insisted: "Penalties against possession of a drug should not be more damaging to an individual than the use of the drug itself." Americaís founding fathers were hemp farmers. Mrs. Lincoln had a prescription for hashish. President Kennedy smoked marijuana and supported its legalization.

In recent years, our government has called for billions of dollars to fight a drug war it can't win. Roughly 75 percent of this money goes to enforcing laws and regulations, but only 15 percent goes to drug education and prevention, and a meager 10 percent goes to treatment for addicts.

During the 1950s, long-term prison sentences against drug users choked the courts, strained and disrupted prisons and drove black-market prices higher. The latest casualty in the drug war has been our civil liberties: mandatory drug testing so we can all be "drug free." However, even putting America under martial law will not solve the nationís drug problem.

Iran executes hundreds of drug offenders. Malaysia has hanged dozens of drug users in the past few years. In neither country has the drug problem receded. In fact, in Malaysia, the addiction rate continues to rise. On the other hand, the Dutch government, with its liberal social and political philosophy, tolerates drug use, and the addiction rate is declining.

In the United States, the annual death rate for cocaine products is 3,000. Heroin and morphine kill 2,500 annually. By contrast, alcohol and tobacco kill 500,000 people a year, while marijuana kills no one.

Rufus King, a Washington, D.C. lawyer who has served on the President's Commission on Law Enforcement and the Administration of Justice, calls the current drug war, "A worthless crusade." According to King, drug use is a social problem, not a law enforcement problem. He observes:

"Cigarette use is declining...through changes in cultural values in the population...Like most smokers and alcoholics, most users of illegal drugs poison themselves because they want to be intoxicated. No human force...can do them much good until they want help." King is optimistic that the current anti-drug hysteria will subside, and responsible and reasonable drug law policies will be adopted.

Prohibition led to Al Capone and rising crime, violence and corruption, overflowing courts, jails, and prisons, the labeling of tens of millions of Americans as criminals and the consequent broadening of disrespect for the law, the dangerous expansions of federal police powers, encroachments on civil liberties, hundreds of thousands of Americans blinded, paralyzed, and killed by poisonous moonshine and industrial alcohol, and the increasing government expenditure devoted to enforcing the Prohibition laws.

Our government spends twenty billion dollars a year on arresting, prosecuting, and incarcerating drug-law violators. Choked courts and prisons, an incarceration rate higher than most other nations in the world, and tax dollars diverted from education and health care are just a few of the costs our current prohibition imposes. There are health costs in drug prohibition. During the prohibition era, some fifty thousand Americans were paralyzed after consuming "jake," an adulterated Jamaican ginger extract. Today we have marijuana made more dangerous by government-sprayed paraquat.

Prohibition did succeed in reducing alcohol consumption and alcohol-related ills ranging from cirrhosis to public drunkenness and employee related absenteeism. But this was due to the effectiveness of the temperance movement in publicizing the dangers of alcohol. The decline in alcohol consumption during those years, like the recent decline in cigarette consumption, had less to do with laws than with changing social attitudes.

During the 1980s, for example, Americans began switching from hard liquor to beer and wine, from high tar-and-nicotine to low tar-and-nicotine cigarettes, and even from caffeinated to decaffeinated sodas, coffees, and teas.

In turn-of-the-century America, opium, morphine, heroin, cocaine, and marijuana were subject to few restrictions. Americans are "big" on bigotry: Many of our drug laws were enacted with racist overtones.

The first anti-opium laws were passed in California in the 1870s and directed at the Chinese immigrants and their opium dens, in which, it was feared, young white women were being seduced. A generation later, reports of rising cocaine use among young black men in the South -- who were said to rape white women while under its influence -- prompted similar legislation. During the 1930s marijuana prohibitions were directed for the most part against Mexican and Chicano workers who had lost their jobs in the Depression.

The use of wiretapping and electronic eavesdropping emerged during the Prohibition era. Roy Olmstead was a suspected bootlegger whom the government wished to search. It placed taps in the basement of his office building and on wires in the streets near his home. No physical entry into his office or home took place. Olmstead was convicted entirely on the basis of evidence from the wiretaps.

In his appeal to the Supreme Court, Olmstead argued that the taps were a search conducted without a warrant and without probable cause, and that the evidence against him should have been excluded because it was illegally gathered. He also argued that his Fifth Amendment right not to be a witness against himself was violated.

By a 5-4 vote, the Court rejected his arguments and upheld the governmentís power to wiretap without limit and without any Fourth Amendment restrictions, on the grounds that no actual physical intrusion of the premises had taken place.

Olmsteadís Fifth Amendment claim was also dismissed on the grounds that he had not been compelled to talk on the telephone, but had done so voluntarily. Thus the Court upheld the governmentís power to do by trickery and surreptitious means what it was not permitted to do honestly and openly. It wasn't until 1967, in a similar case involving gambling, that the Court overruled the Olmstead decision by an 8-1 margin and recognized that the Fourth Amendment applied to wiretapping and electronic surveillance.

Interestingly, these cases arose in the context of crimes like bootlegging and gambling. During the past twenty years, the majority of wiretapping and electronic eavesdropping by both state and federal officials has been in cases involving drug dealing and gambling.

Serious crimes of violence, such as homicide, assault, rape, robbery, and burglary, are rarely the target of electronic eavesdropping, which is not normally a useful tool in such cases.

From the beginning, when wiretapping was virtually invented to enforce laws prohibiting the sale of alcohol, to the late 1960s, when gambling was a major target, to the present, when the use and sale of drugs other than alcohol are the main target, these intrusive devices have been used mostly to enforce laws aimed at punishing and proscribing personal conduct that society deems immoral.

Because such conduct essentially involves private activities among consenting adults who are all likely to want to keep those activities secret, they are harder to investigate and prosecute than crimes like robbery or burglary, in which an unwilling victim will probably aid any investigation.

Many argue that criminal law is an improper means of deterring personal moral choices, and that trying to do so causes more harm than good. The l9th century English philosopher John Stuart Mill observed:

"The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant . . . Over himself, over his own body and mind, the individual is sovereign."

Mill argued that all laws prohibiting such behavior as gambling or drinking were inappropriate. Eventually, Americans agreed, at least with respect to drinking, and repealed alcohol prohibition.

But the same principle has not been applied to the use of drugs other than alcohol and nicotine, and the invasions of privacy inherent in wiretapping and electronic eavesdropping remain with us as part of the legacy of our attempts to criminalize personal conduct.

The other major use of electronic eavesdropping has been to punish political dissent. For decades, former FBI director J. Edgar Hoover used wiretaps and other electronic devices to spy on political figures and citizens not yet suspected of having committed a crime. He built vast dossiers on their political activities and personal lives. Special units of local police called "Red squads" did the same.

Nor has electronic surveillance been the only source of our loss of privacy. The widespread use of urine-testing in employment to see whether people may have been using illegal substances violates the rights of many innocent people.

Urine-testing programs are usually not restricted to those who show evidence of impaired job performance that may be due to the use of drugs. These tests are normally administered randomly. Without any probable cause for search, this is a violation of the Fourth Amendment, (unless one voluntarily agrees before employment to submit to such searches as a condition of employment).

Many of these random tests have been struck down by the courts, where the government is the employer. But some have been upheld. Supreme Court Justice Antonin Scalia denounced them as "an immolation of privacy and human dignity in symbolic opposition to drug use."

The war on drugs has led to other enforcement techniques that violate Fourth Amendment principles: helicopter searches with long-range cameras flying over people's backyards; seizures of people at airports on the basis not of tangible evidence but of how they look (black baseball player Joe Morgan was victimized in 1990 by such a seizure); and raids on garden-supply stores selling equipment that could be used to grow marijuana (or tomatoes) indoors.

Alcohol prohibition was repealed after just thirteen years while the prohibition of other drugs has continued for over 75 years. Why? Alcohol prohibition struck directly at society's most powerful members. The prohibition of other drugs, by contrast, threatened far fewer Americans with hardly any political power.

Only the prohibition of marijuana, which some sixty million Americans have violated since 1965, has come close to approximating the Prohibition era experience, but marijuana smokers consist mostly of young and relatively powerless Americans.

Richard Posner, Chicago's chief federal appeals judge, and one of the nation's leading legal scholars, says marijuana use should be legalized as a way of reducing crime. Posner, a Reagan administration appointee once described by American Lawyer magazine as "the most brilliant judge in the country," explained his views on marijuana in The Times Literary Supplement, a British publication, and in an interview that followed shortly thereafter.

"It is nonsense that we should be devoting so many law enforcement resources to marijuana," said Posner. "I am skeptical that 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."

Posner, chief judge of the 7th U.S Circuit Court of Appeals, is the highest-ranking judge to publicly favor the repeal of marijuana laws. Several judges of the federal district court, a level lower than the appeals court, have made similar calls, including Robert Sweet of New York and James Paine of Florida, both Carter Administration appointees.

New York University law professor Burt Neuborne said itís significant that "one of the leading intellectuals in the judicial system recognizes that the laws donít seem to be working well."

Richard Cowan of the National Organization for the Reform of Marijuana Laws (NORML) said, "His remarks will help move the debate along. Judges are well-situated to see the damage done to the public and to the justice system by these laws."

Cowan says more than 400,000 marijuana arrests are made annually, costing the nations billions of dollars in police and court time and prison space. Posner and other federal judges have complained that sentencing guidelines force them to give unjustly severe prison sentences to relatively minor drug offenders.

'"Prison terms in America have become appallingly long, especially for conduct that, arguably, should not be criminal at all," Posner said. Making marijuana legal, he observed, might take the profit out of sales of illegal drugs and would not necessarily increase drug addiction.

"Only decriminalization is a sure route to a lower crime rate," Posner said. "It is sad that it appears so far below the horizon of political feasibility."

Throughout history, the legal and moral status of psychoactive drugs has kept changing. During the 17th century, the sale and consumption of tobacco were punished by death in much of Europe, Russia, China and Japan. For centuries, many of the Muslim domains that forbade the sale and consumption of alcohol simultaneously tolerated and even regulated the sale of opium and cannabis.

From the dawn of time, humans have nearly universally shown a desire to alter their states of consciousness with psychoactive substances, and it is this fact that gives lie to the declared objective of creating a "drug-free society" in the United States.

Go on to: Part 29: May the Secular State Prevail
Return to: The Next Distraction

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