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