A Call to End The War On Drugs

by G. Patrick Callahan, Prisoner of War in America

"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, from the Report of the National Criminal Justice Commission, Harper Perennial Press, 1996.

If you have not already done so, we strongly urge you to read this report, called the most important study since the Kerner Commission report in 1968. It is a stunning indictment against the current criminal justice system. In the zealous prosecution of the so-called "war on drugs," the criminal justice system is destroying itself and with it, the very fabric of our society.

Orrin Hatch of the Senate Judiciary Committee has recently stated that voters of Arizona and California had been tricked and did not understand what they were voting for on the medicalized marijuana issue. These comments revealed the depths of the government's fundamental problem with the drug war. It has so jaundiced rational thought that not even a person of Orrin Hatch's stature realizes that this is not a population that exists for the benefit of a federal monarchy, but rather the reverse and that the adage "We the People" is what this country is all about. It is also revealing of a blindness and unwillingness by the government to admit that criminalizing consensual activity is nothing short of disastrous. The U.S. drug war has criminalized vast segments of our population and made us one of the world's leading jailers. It has made a mockery of the term Land of the Free.

What is the purpose of law? To a considerable degree in every society, public acceptance and voluntary compliance determine 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 soon become apparent: mass arrests, clogged courts, a propensity to judicial expediency, crammed prisons with marriages and families shattered, children going without parents, vast expense and, for the convicted, the never ending handicap of a felony record to limit the restructuring of their lives.

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 minimum requirement to determining a law's success. In this nation other considerations include constitutionality and, above all, a well defined moral line. The war on drugs cannot possibly succeed because it violates all three of these imperatives.

There is certainly not a high degree of compliance with the drug issue because this is not, most emphatically, a "Drug free Society." It never has been and it will likely never be. Aside from the legal pharmacopeia, which includes everything from Prozac, Ritalin, Valium to codeine, aspirin, which, by the way, kills about 180,000 people per year through accident and overdose, there are caffeine, alcohol and nicotine, used in their various combinations by practically everyone.

A measure of this non-compliance with so-called "Controlled Substances" can readily be seen in the millions of Americans that have been convicted for possession and trafficking offenses since the Controlled Substance Act of 1970. Add to that figure the further millions who turned state's evidence to save their skins and were not convicted in all these cases. Add to it further the millions never arrested or not yet arrested. The equation that follows is non-compliance on a staggering scale-non-compliance that totally obviates this first elemental requirement.

The constitutionality of criminalizing this non-compliance is suspect, after all, the salient proposition in the American contract is that we are a nation of free men and this is, ostensibly, the Land of the Free. It isn't, of course, for we are gulaging ourselves at a rate that positively astonishes the Free World. The much touted concept of the Land of the Free does not simply involve staying out of prison, which is increasingly hard to do, it more poignantly means that we are free to do as we wish subject to the obvious, perhaps biblical limitations. What the drug war is doing, in addition to erasing a plethora of basic rights, is bending law thoroughly out of shape. It has replaced reason and compassion with a series of statutes and the attendant enforcement techniques that are ill-conceived on the one hand and looked upon with disfavor, disgust and mistrust by a significant portion of the population. The irony is that with this zealous enforcement of the law, the enforcers have underwritten the eventual diminution and perhaps even outright demise of the very Constitution they believe they uphold. An example is the reaction by hard line elements to the recent California and Arizona initiatives on medicalized marijuana. The Arizona initiative was broader by far and passed by an overwhelming majority, 65% to 35%; and this from a basically older, Republican, conservative state, yet the hard liners immediately derided the vote and vowed they would find ways to block it. They are so steeped in their dogma they have forgotten what "We the People" means.

The third element necessary for a law to succeed is the existence of a hard moral line that underscores it. There exists no hard moral line in the drug debate and moralizing the issue is disingenuous and a mistake. Smoking marijuana is analogous to smoking tobacco or drinking alcohol. The drug issue is aside real criminality, where by contrast moral lines are sharply drawn in black and white: theft, rape, kidnapping, child molestation, bodily injury, murder itself. In the drug context the "moral" lines are so blurred as to be non-existent and one of the ironical moments in the history of the drug war was when President George Gush toasted renewed efforts in prosecuting it with a glass of champagne, quite literally challenging one drug against the others and perfectly demonstrating the prejudicial nature of the issues: a war on differences in chemical tastes.

Is it government business to dictate what a person will ingest? Where is this written into the Constitution? If this is so, if for the Public Health and Welfare, why isn't tobacco on the schedule? It is the most destructive drug of them all which has, since the 1970 Act, killed approximately 12 million Americans. It is quite well known now that the tobacco companies knew the addictive potential of nicotine, sprayed it as an additive onto their product and purposely targeted the young by advertisements and other techniques because young people are more quickly "hooked" and stay that way for a longer time. All of this is fact. And yet marijuana has not killed a single person since the 1970 Act. Aside from its use as an intoxicant, unlike tobacco, hemp and its by-products possess amazing commercial possibilities, an estimated one half trillion dollar potential that goes untapped because of these laws. The hard line stance on medicalized marijuana is not just outrageous, is tyrannical and stupid beyond belief.

Unlike real crime, there are calls for legalization and/or decriminalization coming from every quarter in the war on drugs. The New York Trial Lawyers Association is backed by an ever growing body of opinion that the drug issue be taken away from the criminal justice system entirely and place within the purview of public health, that the greatest harm reduction possible in the war on drugs is to stop putting people in jail. In another ironic twist, the most consistent and rational calls for decriminalization come from the conservative faction. By contrast, there are no proponents for the legalization of rape, of murder and the real crimes. It is an amazing fact, but true, that drug offenders routinely receive sentences far in excess of what real criminals receive. No country on Earth locks up non-violent offenders at the rate and for the lengths of time that this country does. This is a scandal and a dichotomy that ought to immediately reverse minimum/mandatory sentencing and the unrealistic punishments embodied within the U.S. Sentencing Guidelines.

An overall consensus should exist in law before it is applied. It is apparent that in the drug context, this just is not the case. A large and growing segment of the federal judiciary, for example, is refusing to hear drug cases; many will not sentence drug offenders. Recently the Chief Judge of the Seventh Circuit, the honorable Richard Posner, came out in favor of abolishing minimum/mandatory sentencing in drug cases and the outright legalization of marijuana as a first step in decriminalization. His comments are pertinent because he is reputed to be one of this country's foremost legal scholars:

"Prison terms in America have become appalling long, especially for conduct that, arguably, should not be criminal at all."

That such a statement can be made in the first place is glaring evidence of a lack of consensus necessary to validate any given law. That there is debate at all makes imposition of ten, twenty and thirty-year sentences for drugs 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 it appears so far below the horizon of political feasibility."

Currently approximately 60% of federal judges oppose the U.S. Sentencing Guidelines and would scrap them entirely. At least 87% of the federal judiciary is in favor of ending minimum/mandatory sentencing and are highly critical of the lengths of sentences given to drug defendants. Others are for decriminalization. So, not only is there massive non-compliance in the population at large, but there is massive non-agreement within the criminal justice itself. It is literally becoming a "legal civil war." Is the drug war worth it? Has the drug war worked? What end does it seek?

If one accepts the notion that an overall consensus must exist to vitiate a set of laws, it is clearly apparent that the drug laws do not meet the criteria. The questionable consensus of former days has rapidly eroded in the face of reality. This has come as no surprise. Drug myths explode and reason and compassion replace hysteria, media-hype, legend, propaganda, lies and political haymaking. There are many reasons why the drug war with its attendant, fixated urge to punish, fails the moral imperative. One of the most obvious is that, unlike real crime, there are any number of agencies and organizations that have a vested interest -- that is to say a financial stake in keeping this disaster alive, so very reminiscent of Viet Nam: "Give us another division, another regiment, more artillery, more ammunition, more aircraft..."

Among the obvious special interest is the Prison Industry Complex, the pharmaceutical companies, the various government entities that enforce the law, politicians and the entire system of coerced drug treatment, counseling and testing, which is an expanding "empire" in and of itself. These agencies all press their individual agenda into the execution of the law, making real justice very hard to come by.

Mr. Thomas S. Szasz is in the Department of Psychiatry at Syracuse University and he has written widely on the drug war and the damage it has done to society. He correctly claims that our society is therapeutic in the same sense which medieval Spanish society was theocratic, that is to say a union of the medical establishment with the state.

"Sadly the war on drugs has offered, and continues to offer, modern man much of what he seems to crave: fake compassion and genuine coercion; pseudo-science and real paternalism, make-believe disease and metaphorical treatment; opportunistic politics and unctuous hypocrisy. It is hard for me to see how anyone who knows anything about history, about pharmacology, and about the fundamental human struggle for self-discipline and the seemingly equally intense human need to reject it and replace it with submission to a coercively paternalistic authority-how any such person could escape the conclusion that the war on drugs is simply another chapter in the natural history of human stupidity." Thomas S Szasz, A Plea for the Cessation of the Longest War in the Twentieth Century-The War on Drugs, 1988

Unlike real crime, there exists in the drug debate a large, entrenched variety of special interests that go beyond the perimeter of justice and form an impermissible coalition. These vested interests are about money and power as opposed to justice and they are influential and unique in the sense that they manipulate public opinion and press for the kinds of draconian sentences given to drug defendants. They are peculiar to this class of defendants and nowhere else in law is this diversity of interest so intensely focused. Due to this pressure, objective analysis of policy, of sentence length, of effect upon the society at large -- indeed, of basic Constitutional values- goes by the board. There is great impetus for these entities to maintain the terrible status quo; it is extra-judicial and has nothing to do with crime and punishment as related to justice, common sense and fairness.

It very much helps to pause to consider what is happening in this country, of all the bad things the war on drugs is causing and it is worth listing them, although this is not an all encompassing account. The war on drugs has:

• Eroded our liberties and personal rights
• Cost billions with no tangible effect
• Criminalized literally millions of American citizens not otherwise disposed to crime
• Placed nearly one-third of African-American males 19 and 29 either behind bars or on some form of parole or supervised release; and given felony records that will handicap them for the rest of their lives
• Promoted a heinous system of informants and made betrayal of personal trust a federal model
• Corrupted police and the legal system
• Helped spread AIDS by its rejection of needle exchange programs. (In the recent AIDS Conference held in Canada, American medical representatives stated flatly that the drug war should be called off for this reason alone)
• Caused violence and "turf" wars that have killed and wounded thousands, many of them totally innocent victims caught in the interminable crossfire
• Filled our prisons to the point where it is where it is bankrupting states and where the federal system must now essentially build one prison a month in definitely; the veritable gulaging of America
• Broken up millions of American families since its inception [prison does precisely that: divorce, limited or no contact with family members and children, non-participation in family life, non-support of households
• Created millions of "drug orphans" whose parents are in prison
• Destabilized entire Latin American countries with narco dollars;
• Created a voracious, expanding forfeiture system;
• Created the quintessential National Police Force forbidden by the Constitution
• Made an incoherent maze of the 1987 U.S. Sentencing Guidelines;
• Made this country a mockery world wide, with the highest incarceration rate in the world.

Land of the Free? Emphatically no. There are now approaching 1.65 million people in jails and prisons in America, of which 100,000 are women. About half of this number are in prison for drug crimes, for the extension of consensual behavior. There are 2.5 million people on supervised release for drug crimes and millions more who have already been excreted from the system with their lives in shambles.

If there was a counterbalance, something to indicate less people were using drugs; if there were fewer kinds of drugs around in lesser quantities; if people were more secure rather than the reverse by prosecuting the war on drugs one might accept some of these costs, but that has never been the case, nor will it ever be. When the politics of prohibition make marijuana worth $2,500 per pound in Milwaukee and cocaine more valuable than gold, it is absolute folly to believe that people will not run the risk and trade in the product. It is equally foolish to believe that the product will not be produced either at home or abroad. Of the Prohibition Era-that last costly futile effort -Judge Priest, an anti-Prohibition leader, stated that:

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 the human condition to alter this fact.

Rather than attack the citizens of the states of California and Arizona for their initiatives, the statesman-like thing to do is to propose viable alternatives for an end to this huge mistake. This civil war could be ended and the government could start by granting amnesty to all non-violent drug offenders. These initiatives by California and Arizona ought to serve as a long ignored wake up call: it is time to end the drug war.