The nation ringing in the Clinton administration is, by several measures, a healthier and more health-conscious nation than it was when Ronald Reagan took office. Americans exercise more, eat less fat, drink less alcohol, and smoke less tobacco than they did a dozen years ago. Public awareness campaigns, strong leadership from the Surgeon General's office, and laudable efforts at enlightening schoolchildren have, for the nation as a whole, significantly reduced demand for cigarettes, booze, and fatty foods.
Cocaine and marijuana, though, are different. So gravely did the Reagan and Bush administrations view these public health problems that they fought them not with persuasion, but with what they called a "war." This War on Drugs has seen the federal drug budget increased ninefold; it was almost $13 billion last year, or about twice the current funding for the Environmental Protection Agency. State and local governments' commitment was at least as great; the pro-legalization Drug Policy Foundation estimates the nation as a whole spent $100 billion on the drug war during the Bush administration alone. George Bush devoted his first televised presidential address entirely to cocaine, calling it the nation's "most serious problem." And his first drug czar, William Bennett, created a network of high-level drug officials in the Interior, Education, Defense and other departments to give drug policy top priority; the highest-placed single-issue office at the Department of Health and Human Services, for example, is the special counsel to the Secretary for drug abuse policy. No other health or human-service issue -- not AIDS, alcoholism, hunger, or poverty -- rates a Secretary-level special counsel.
To be sure, illegal drugs have helped wreck a lot of lives during the past dozen years, and each sad story of addiction or death -- whether passed by word of mouth or reported on the ten o'clock news -- is more heartbreaking than the last. But beyond the anecdotes, the public-health effects of the pharmacologic substances themselves pale beside other threats accepted more calmly, such as car wrecks, handguns, and homelessness -- none of which have been addressed by a "war." Fifteen people die from the direct effects of alcohol, and 60 from tobacco, for every person who dies from cocaine poisoning, according to the Public Health Service (PHS), and no deaths from marijuana have ever been reported. Cocaine can damage lives without killing, of course. But violent and dramatic headlines notwithstanding, the drug touches relatively few lives. Six million Americans used cocaine in 1990, according to the General Accounting Office (GAO), but fewer than 350,000 used it daily. A big number, but not compared to, say, the five million children under twelve who go hungry at some point each month, according to the Food Research and Action Council in Washington, DC. Even assuming every daily cocaine user has a "problem," an affliction suffered by less than one fifth of one percent of the nation's population seems a poor candidate for the country's "most serious problem." While one can argue that 350,000 daily cocaine users is a tragedy that merits attention, $100 billion over four years, or $286,000 per user, makes the Pentagon's thousand-dollar toilet seats seem a bargain.
Illegal drug abuse cost the nation more than $44 billion in 1985, the PHS reported in a big 1990 study of the economic costs of drugs, alcohol, and mental illness. But take a closer look at the figures: three quarters of that $44 billion was related to crime surrounding the illegal drug trade rather than direct effects of the drugs themselves.
"On the grounds of the health costs, it could scarcely be claimed that use of illicit psychoactives constitutes a social problem of the first order," writes Peter Reuter, co-director of the Drug Policy Research Center of the RAND Corp. A hardly a bastion of counterculture thought.
Still, the nation's strategy in the War on Drugs has been to spend twice as much on law enforcement as on treatment and education. By handing responsibility for this public health problem to the Attorney General instead of the Surgeon General, the country has doubled its prison population since 1980. The number of federal prison inmates doing time for drugs is now bigger than the entire federal prison population was when Jimmy Carter left office. The story is similar on the state level; in California, to choose one example, one of every five state employees now works for the department of corrections. No country has as big a portion of its people behind bars as does the United States.
George Bush's annual National Drug Control Strategy, the written conscience of the War on Drugs, justified the emphasis on enforcement by focusing all blame for drug use on the individual, explicitly rejecting any notion that drugs are a symptom of economic, social, and political distress. "To explain the drug problem by pointing to social conditions is to 'victimize' drug users and deprive them of personal autonomy -- the freedom and will not to use drugs," the 1992 Strategy document states. "The drug problem reflects bad decisions by individuals with free wills." Adds John Walters, the outgoing deputy director for supply reduction in the Office of National Drug Control Policy: "Poverty doesn't cause drugs; drugs cause poverty."
Furthermore, the Strategy based the "war" on assertions about drug use stated as fact, but which are questioned by independent researchers across the country. To cite a few examples: the Strategy's contention that babies exposed to crack in the womb will never recover and constitute a "time bomb" that will "explode 20 to 30 years from now" is challenged by researchers at both Emory University Medical School and the National Association of Perinatal Research and Education, who find instead that most effects of cocaine exposure pass within several months and that most of the long-term symptoms popularly associated with "crack babies" stem instead from other conditions that commonly accompany cocaine use, such as poverty, violence, malnutrition, and poor prenatal care. The shibboleth that increased drug enforcement can reduce other types of crime is questioned by large studies in Florida and Chicago, where Florida State University economists found that diverting heavy police resources to drug enforcement resulted in a rise in both property crime and alcohol-related traffic deaths. The common belief that high murder rates are caused by people driven "crazy" by drugs is contradicted by an examination of 218 New York City homicides recorded as "drug related" in 1988. Five were caused by the psychoactive effects of crack (as opposed to 21 by alcohol), the University of Illinois's Paul Goldstein found; motives for the rest lay not in the pharmacological substance but in the nature of the illegal drug trade A either turf wars or robberies by addicts desperate to buy another dose.
"Any cocaine use may lead to addiction" the latest Strategy states, but that is disproved by the GAO study finding that fewer than six percent of all cocaine users use the drug daily.
While none of the studies challenging "instant addiction," "drug- crazed" crime, or a generation of "crack babies" is conclusive, they at least begin to lend academic support to a re-examination of current drug policy. On the other hand, research supporting the current drug-war policy A detailing the health dangers of drugs and linking drug abuse to crime, for example A isn't available from the Office of National Drug Control Policy or the Department of Health and Human Services.
"If you want mass studies, there aren't any," said Walters, who charted national drug-enforcement policy for four years. "It's very hard to get to the bottom of some of this."
Instead of "mass studies," the Office of National Drug Control Policy, the White House, and their allies in Congress and the courts generate support for the government's enforcement-heavy policies through moral assumptions about drugs and the people who use them. Speaking at Harvard in 1989, William Bennett summed up his abhorrence of drug use this way: "it makes a mockery of virtue." Federal judges have written into their opinions comparisons of drug users and dealers to "the vampire of fable" and an "external enemy," and one judge even suggested that compared with drug trafficking, "violent crimes may well be considered the lesser of two evils." Building more prisons is "the morally right thing to do," then-Attorney General William Barr said in a speech last April. Drug czar Bennett even suggested, on national television, beheading dealers.
Though neither Bennett nor his laissez-faire successor, former Florida Gov. Bob Martinez, ever managed to test this last approach, such medieval reasoning permeates the National Drug Control Strategy, which effectively equate drug users with lepers, comparing them "in epidemiological terms" to a "carrier" whose drug use is "highly contagious." The casual user is singled out for punishment more than the hard-core addict because "he is likely to have a still-intact family, social, and work life. He is likely still to 'enjoy' his drug use for the pleasure it offers." Each year since 1989 the Strategy has called for ever-tougher sanctions against non-addicted, non-dealing consumers of illegal drugs. "Who's responsible?" George Bush asked in his 1989 speech. "Let me tell you straight out: Everyone who uses drugs. Everyone who sells drugs. And everyone who looks the other way." In other words, everybody, save the police and those willing to inform the police. The Bush White House called this principle "user accountability." Critics call it cruel and repressive.
"Drugs are illegal because they're immoral, and immoral because they're illegal," argues Professor Lynn Zimmer of City University of New York. "The mentality here is a concern not with health, but with compliance. That's why there's no parallel concern with alcohol and tobacco."
No effort is too extreme once drugs are established as the Antichrist and Congress has eagerly played along with the White House. "In the war on narcotics, we have met the enemy, and he is the U.S. Code," Democratic Florida Panhandle Rep. Earl Hutto complained during a 1981 hearing. "I have never seen such a maze of laws and hangups." Since then, Congress abolished federal parole. It let police share in the confiscated assets of drug dealers, giving them a financial interest in the drug war (state and local police collected $218 million in shared assets in fiscal year 1992, according to the Justice Department). Congress let police hold drug defendants without bail. It required states to revoke drug offenders' driver's licenses or lose federal highway funds. The list goes on.
Congress also claimed from federal judges their authority to decide sentences, writing in 1984 a long list of mandatory minimum sentences that judges must apply without consideration of the circumstances of the particular crime or the defendant's character. (Predictably, defense attorneys hate mandatory minimums. But so do federal judges A 94 percent of whom were appointed by Republican presidents. The judicial councils of all twelve federal circuits passed resolutions in 1990 and 1991 asking Congress to reconsider mandatory sentencing. Even federal prosecutors are divided on it, according to a survey by the federal Sentencing Commission.)
Anyone defending a client in federal court also now faces the Speedy Trial Act of 1984, which says a federal case must come to trial within 70 days of indictment. "That sounds good," says Louisiana defense attorney Thomas Lorenzi, "but the feds take five years to prepare a case, then issue an indictent and bam! You're arraigned today, motions are due in fifteen days, trial in six weeks." The final blow of 1984 was a law allowing prosecutors to appeal a sentence, a right that used to be enjoyed almost exclusively by the defense. "They don't do it much, but they do have the right and the threat. [Prosecutors] use it to intimidate the defense into not appealing a trial issue if they won't appeal a sentencing issue," says Judy Clarke, a Spokane, Washington, federal defender who privately publishes the monthly Guideline Grapevine, which tracks federal sentences.
All in all, the passion to fight drugs has reversed the federal government's traditional leadership in holding states to a higher standard of civil rights. "When I started to practice law the state legislature would have to go into session every year to restrict their laws to comply with federal law," says Thomas Lorenzi. "Now they go into session every year to change their laws to take advantage of federal laws' new laxity."
Drug use and drug sale are crimes committed among willing participants -- unlike robbery, rape, or burglary. So investigating drug crime requires intrusion into peoples' lives. And the courts have shared Congress's willingness to make that intrusion ever easier. Every one of the federal wiretap warrants requested of federal judges in 1990 was approved; in fact, the Justice Department reports that annual use of federal wiretaps has more than quadrupled since 1980.
In drug case after drug case, the Supreme Court has radically loosened the rules surrounding search warrants, too. Two Illinois cases, in 1983 and 1987, permitted the issuance of search warrants based on anonymous information; another 1984 case permitted warrantless searches of fields, barns, and other private property near a residence; A 1986 California case permitted warrantless aerial surveillance of a home, and a 1989 Florida case lowered the permissible ceiling for aerial warrantless searches to 400 feet.
The Court justified its decision to permit pretrial preventive detention by explicitly comparing the War on Drugs to a war against another nation, ruling that in times of "war or insurrection, the government's regulatory interest in community safety can...outweigh an individual's liberty interest."
Conversely, the law increasingly fails to protect drug suspects from crimes committed against them. Prosecutors, judges, and juries have begun going easy on people -- especially parents -- accused of killing or abusing drug users, according to Abraham Abramovsky of the International Criminal Law Center at Fordham University Law School in New York. In one recent New York case, the Bronx district attorney dropped charges against a couple who chained their daughter to a radiator to prevent her from using drugs. In another, a Queens grand jury refused to indict a mother for murder for shooting her crack-addicted daughter; it indicted instead for manslaughter. "There's not a flood of these cases yet," said Abramovsky. "But I do see an emerging pattern."
In such cases, people who use drugs are considered beneath the full protection of the law. Women who use drugs while pregnant are likewise demonized. Prosecutors around the country are charging women with everything from drug trafficking to homicide for using illegal drugs during pregnancy, even though no state assigns special or additional statutory penalties for doing so. The Center for Reproductive Law & Policy has collected 167 cases of women thus tried, and though many beat the charges or had their cases dismissed, many others lost custody of their children and many went to prison. Perhaps most frightening, defense lawyers rarely challenge the validity of the charge and convince their clients instead to plead guilty. "As a result," argues the Center, "many women in America are serving jail terms or are on probation for non-existent crimes." The mainstream press isn't much concerned; in one particularly strident dispatch, New York Times columnist A.M. Rosenthal dismissed pregnant women who use drugs as "monsters."
Doctors, however, are becoming increasingly vocal about the intrusion of the punitive drug-war mentality into the field of medicine. Six prominent medical associations, including the American Medical Association, the American Academy of Pediatrics, and the American Public Health Association, publicly deplore the prosecution of pregnant women. "Criminal prosecution of chemically dependent women will have an overall result of deterring such women from seeking both prenatal care and chemical dependency treatment, thereby increasing rather than preventing harm to children and society as a whole," the American Society for Addiction Medicine argues.
The government has steadily refused to allow doctors to prescribe marijuana to AIDS and terminal cancer patients for relief of debilitating nausea, even though the DEA's own administrative law judge ruled in 1988 that the drug should be reclassified as a legal medicine. The government can't allow marijuana to be given to AIDS patients, Assistant HHS Secretary James O. Mason said in 1991, because that would send a "bad signal" that "this stuff can't be so bad." (This is one policy that might change quickly under the Clinton administration. Surgeon General Joycelyn Elders told a reporter before taking office that she supported allowing the medical use of marijuana. While the decision isn't hers to make A rescheduling drugs is up to the director of the Public Health Service and the DEA A at least she wouldn't object.)
New York City canceled its only clean-needle exchange program for intravenous drug addicts in 1990 because, the Health Commissioner said, it was "sending the wrong message." In New York, some 60 percent of needle-drug addicts are HIV-positive; in Liverpool, England, which has a needle-exchange program, the rate of infection approaches zero, according to surveys published in the Journal of the American Medical Association and the International Journal of Drug Policy. Meanwhile, time ran out on the state legislative session before its members could vote on North Miami Democratic Rep. Elaine Gordon's AIDS policy bill, which contained a provision for a needle-exchange program.
"We're sending a message, all right," says Dr. John Morgan, professor of pharmacology at City University of New York Medical School. "The message we're sending to IV drug users is: 'We want you to die.'"
Even the use of legal medication is affected by the drug-war mentality. Several recent studies report that complicated paperwork surrounding opiate painkillers, outright restrictions on the use of opiates and what one doctor calls "opiophobia" are leading to underuse of legitimate pain medication in hospitals. This not only increases suffering, it also prolongs the recovery of surgical patients, says Dr. C. Stratton Hill of the M.D. Anderson Cancer Center in Houston, who helped write pain-medication guidelines for the federal Agency for Health Care Policy and Research. "We confuse the legitimate use of drugs with the illegitimate," he says. "The illegitimate image so dominates our thinking that we believe anybody who uses them is a criminal."
Even people sympathetic to the cause are beginning to criticize such worrisome byproducts of the drug war as mandatory life sentences without parole for nonviolent drug offenses, the government seizure of $1.6 billion worth of citizens' property a year, and the criminalization of a generation of black men. (One of every four black men age eighteen to thirty is under some form of correctional control, the National Association for Institutions and Alternatives reports; in places like Baltimore and Washington, DC, the figure is closer to 50 percent.)
"I don't feel that you and I could sit down and take two weeks and design a system worse than the one we've got," says James Gray, a self-described conservative Republican superior court judge in Santa Ana, California, since 1989 and former federal prosecutor. "The courts are doing a good job, as is the DEA (Drug Enforcement Administration) and everybody else. But we're farther away from a resolution than when I started on the bench."
Gray, who is careful to refer to drugs as "garbage" and abhor their use even as he promotes legalization, joins other state and federal judges in lamenting the crippling burden drug cases place on the courts. Bush let the number of sitting federal judges decline during his administration, while tripling the number of federal prosecutors and spurring them to bring three times the drug cases to federal court in 1990 as in 1980. The result has been havoc in the federal courts so acute that Chief Justice William Rehnquist last February told the mid-year meeting of the American Bar Association (ABA) that the explosive rise in federal drug prosecutions is "making it next to impossible for many judges to give timely and adequate attention to their civil dockets."
In an interview with the American Bar Association Journal after the election, Clinton said he thinks "a large part of the substance-abuse problem can best be dealt with as a public health and education issue." One of his first acts as president was to cut the staff of the hawkish Office of National Drug Control Policy by 80 perent. And newly appointed Attorney General Janet Reno, while no legalizer, is an open advocate of doing something with drug users other than putting them in prison.
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But Clinton's only specific proposals so far are a "National Police Corps" to put 100,000 more police on the streets, and an archipelago of "boot camps" to straighten out young drug users through "shock incarceration." And it's worth recalling that in the first televised presidential debate, Clinton said he wouldn't consider decriminalizing drug use, in part because "the criminal justice system saved the life" of his brother Roger, who was convicted in 1984 on federal conspiracy and cocaine trafficking charges and sentenced to two years in prison, of which he served sixteen months. It isn't clear whether Clinton thinks his brother's life would have been saved by ten paroleless years in a federal penitentiary, the minimum mandatory penalty he'd get today on the trafficking charge alone.
Certainly there's little appetite in Congress for a major de-escalation of the Drug War. The Senate Judiciary Committee chaired by Sen. Joseph Biden (D-Delaware) actually attacked Bush's drug war, from the right. In a strident report released late last year and titled, "The President's Drug Strategy: Has It Worked?" the Biden committee argues: no, but only because President Bush hasn't spent enough money on law enforcement, hasn't been tough enough on those addicted to drugs, hasn't given enough power and money to the military to shift its mission to fighting illegal drugs. In 194 pages, the report never once uses the words "racism," "AIDS," "poverty," "tobacco," or "civil liberties." As much as Republicans, Democrats like their drug-war rhetoric served hot.
"There is no drug exception to the Constitution," Justices Thurgood Marshall and William Brennan wrote in 1989. But both, of course, are gone from the court.
Dan Baum is a freelance writer living in Missoula, Montana; he's currently at work on a book about the hidden agendas of the War on Drugs. This article, in slightly different form, also appeared in the March issue of the American Bar Association Journal.