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1:13 pm Oct 8, 1990
The following letter was written by Associate Professor of Law Jeffrey M.
Blum of the University of Buffalo School of Law, in response to a request
from a federal court judge, and is a good summary of many of the things
that are wrong with the "war on drugs."
May 21, 1990
The Hon. John L. Elfvin
United States District Court
Western District of New York
Buffalo, New York 14202
Re: United States v. Anderson, CR-89-210E
Dear Judge Elfvin:
I have received a request from your Chambers for a submission in the nature
of an amicus curiae brief addressed to the question:
"whether today's climate of allegedly rampant importation of contraband
drugs ...justifies a `relaxation' of the Constitutional rules which would
otherwise control."
I am told that argument on this question is scheduled for June 4, 1990.
Unfortunately my publishing deadlines and commitments at this time of year
preclude me from preparing a full brief. However, because I appreciate the
request and believe it is critically important for members of the judiciary
to be well informed on this issue, I wish to offer three things in response:
first, the instant letter brief which will simply list proposed findings of
fact that bear centrally on the issue, second, the enclosed packet of
readings that documents some of the proposed findings and assesses the drug
war from a variety of perspectives, and third, my personal expression of
willingness to speak free of charge regarding any or all of the proposed
findings to any gathering containing influential members of the Western
New York legal community.
The proposed findings are based upon information I have gathered from a
variety of what I believe to be reputable sources. In most cases more than
one source is involved. The proposed findings are offered in support of
the following answer to Your Honor's question:
No, today's climate of allegedly rampant importation of contraband drugs
...does not justify a `relaxation' of the Constitutional rules which would
otherwise control. Rather, it necessitates a strengthening of
constitutional norms to safeguard reasonable exercises of personal liberty
from arbitrary and unwarranted invasion, and to prevent uncontrolled cycles
of hysteria from severely impairing our constitutional form of government.
Professorial Amicus' Proposed Findings of Fact
1. For several years now the United States government's "war on drugs" has
been inspiring a series of decisions substantially cutting back on
established constitutional rights, particularly in the areas of the
fourth, fifth and sixth amendments to the U.S. Constitution. See-
Wisotsky, Crackdown: The Emerging Drug Exception to the Bill of Rights,
38 HASTINGS L. J. 889 (1987).
2. The drug war has been directed against a variety of very different
illicit substances, some highly addictive and posing a significant
public health problem, and others not. Over three- fourths of the
illicit drug use in the United States involves smoking or ingestion
of marijuana. For each of the last ten years marijuana has accounted
for a majority of drug-related arrests, seizures, property forfeitures,
and expenditure of law enforcement funds. Because of marijuana's easy
detectability, laws against it have generated an average of close to
500,000 arrests annually in the United States. See- annual household
surveys of the National Institute of Drug Abuse, and annual reports of
the U.S. Department of Justice.
3. There is not now, nor has there ever been, credible medical evidence to
justify this level of law enforcement effort against marijuana. Rather,
several presidential panels of experts and a number of other
comprehensive reputable studies have consistently and unequivocally
shown marijuana to be far less addictive, less toxic, less hazardous to
health, less disruptive of family relationships, less impairing of
workplace productivity and less likely to trigger release of inhibitions
against violent behavior than alcohol. See- Hollister, Health Aspects of
Cannabis, 38 PHARMACOLOGICAL REVIEWS 1 (1986) (included in enclosed
packet).
4. Marijuana was first made illegal in the United States in the early
twentieth century largely for two reasons, neither of which was
health-related. The first publicly known large user group of marijuana
was Mexican-Americans. Marijuana laws began being passed in
Southwestern states as part of a self-conscious harassment campaign
designed to drive Mexican-Americans out of the United States and "back"
to Mexico. This harassment campaign intensified during the 1930's when
the depression was making jobs scarce and causing Anglo-Americans to
covet the jobs held by Chicanos. For proposed findings 4 through 7,
infra, see- Riggenbach, Marijuana: Freedom is the Issue, 1980
LIBERTARIAN REVIEW 18 (included in enclosed packet).
5. The second important reason for marijuana prohibition was the covert
protectionist activities of paper and synthetic fiber industries in
the 1930's. These interests, of which the Du Pont Corporation was the
most important representative, wanted to eliminate possible competition
from the hemp plant (marijuana is comprised of the buds or flowers of
the hemp plant), which had recently become a serious "threat" as a
result of the invention of the hemp decorticator machine. With such a
machine in existence, competition could have become severe because
hemp, in contrast to trees, is an annual plant with no clearcutting
problem. Hemp also is believed to produce 4.1 times as much paper pulp
as trees, acre for acre.
6. Several trends in government converged to make hemp/marijuana
prohibition possible. The New Deal Court had recently swept away
earlier established doctrines of economic due process which had
limited covert protectionist uses of government agencies. Andrew
Mellon, the chief financier of the Du Ponts, had become Secretary of
the Treasury and appointed his nephew, Harry Anslinger, to head the
newly created Federal Bureau of Narcotics. Anslinger proceeded to
misclassify marijuana, which is a mild stimulant and euphoriant, as
a narcotic, and to make its prohibition his agency's top priority. In
addition, the recent lifting of alcohol prohibition had confronted a
number of federal agents with the risk of unemployment if new forms
of prohibition could not be instituted. All these factors contributed
to passage of the Marijuana Tax Act, the initial federal prohibitory
legislation, in 1937.
7. Throughout the 1930's a lurid "reefer madness" propaganda campaign was
carried on throughout the nation, largely through the Hearst newspaper
chain. The Hearst chain, whose vertical integration had caused them to
buy substantial amounts of timber land, had been accustomed to using
lurid propaganda campaigns to sell newspapers since the Spanish-American
War in 1898. The "reefer madness" campaign was based partly on the
knowledge that Pancho Villa's army had smoked marijuana during the
Mexican Revolution. It portrayed marijuana as a powerful drug capable of
causing Anglo teenagers to turn instantly into hot blooded, irrational,
violent people, much akin to the "Frito bandito" stereotype of Mexican-
Americans.
8. The "reefer madness" campaign rested on a large number of anecdotal
stories of violent incidents, almost all of which have turned out to
have been fictitious and traceable to a single doctor who had worked
closely with Harry Anslinger. One indication of the stories' falsity
is that during the Second World War and Korean War Anslinger himself
shifted from calling marijuana a violence-inducing drug to calling it
a menace that had the capacity to turn large numbers of young people
into pacifists. For proposed findings 8 through 11, infra, see Herer,
THE EMPEROR WEARS NO CLOTHES (Los Angeles: HEMP Publishing, 5632 Van
Nuys Blvd., Van Nuys, Calif. 91401).
9. Since marijuana began becoming popular among the white middle class in
the mid-1960's a number of specious medical studies alleging great
harm from marijuana have been widely publicized. The most important
of these, and the source of the widespread myth that marijuana damages
brain cells, involved force feeding rhesus monkeys marijuana smoke
through gas masks. The monkeys consumed in a matter of minutes amounts
of smoke far greater than what human beings would be likely to consume
in a month. The monkeys suffered substantial brain damage that appears
to have been caused by carbon monoxide poisoning from smoke inhalation.
10. Covert economic protectionism appears to have played a continuing
important role in sustaining marijuana prohibition during the last
decade. Pharmaceutical companies, possibly alarmed at the increasingly
widespread use of marijuana as a versatile home remedy, provided most
of the funding in the late 1970's and early 1980's for a network of
"parents' groups against marijuana." By far the largest sponsor of the
Partnership for Drug-free America, which blankets the airwaves with
anti- marijuana commercials, has been the Philip Morris Company.
Philip Morris owns several brands of tobacco cigarettes and is the
parent company of Miller Beer, and possibly some other brands of beer
as well.
11. Partnership commercials, while exaggerated but to some degree truthful
about cocaine, have been uniformly uninformative about marijuana. They
have ranged from merely casting negative stereotypes of marijuana users
as lazy and shiftless to being instances of outright (and possibly
legally actionable) fraud. One widely aired commercial compares the
brainwaves of "a normal teenager" and "a teenager under the influence
of marijuana." The latter was later admitted by Partnership officials
to have been the brain waves of a person in a deep coma.
12. Largely as a result of such government and corporate- sponsored
propaganda campaigns a majority of people have come to support an
across-the-board crackdown on illicit drug use and sales. Due to this
political climate a number of harsh statutes have been passed during
the last five years and these, combined with various "relaxations" of
constitutional restrictions on law enforcement activities, have
resulted in large numbers of young people receiving ten, fifteen and
twenty-year mandatory-minimum sentences for transport and sale of
marijuana. Thousands of people have forfeited ownership of their
farms, homes, shops and vehicles for growing, and in some instances
merely possessing, marijuana. See generally- the Omnibus Anti-drug and
Anti-crime Acts of 1984, 1986 and 1988.
13. Because of this wholly unjustified crackdown on marijuana, people around
the country have come to view the term "Your Honor" as connoting a
person of ill will, mean spirit and low principle. "The Government" has
come to connote an organization that is both very inefficient in its
processing of information and very casual in its willingness to
disseminate falsehoods with abandon.
14. The attempt to portray marijuana use as an emergency that requires a
serious crackdown on users strikes most of the nation's thirty million
pot smokers as utterly ludicrous. Marijuana is not known to have caused
even a single death. Yet there are longitudinal studies showing that
people who have smoked marijuana frequently for decades appear normal,
healthy and have life expectancies as great or slightly greater than
those of nonsmokers. See- Hollister, supra; Herer, supra.
16. The total number of deaths annually attributable to overdose or
poisoning from all illicit drugs combined is between 3,800 and 5,200,
or approximately one percent of the number who die annually from
alcohol or tobacco-induced illnesses. Of the overdose deaths it is
believed that about 80% of these would be avoided if the illicit
substances, instead of being obtained on the black market where they
are frequently contaminated or of unknown purity, were dispensed
lawfully in some sort of controlled maintenance program. See- Ostrowski,
Thinking About Drug Legalization (Cato Institute 1989) at 14-15.
17. By far the largest number of deaths associated with illicit drug use
will be coming from the AIDS plague. It is estimated that there are now
about 100,000 intravenous drug users in New York City who have become
infected and would test HIV positive as a result of blood contamination
caused by use of shared needles or works. See- Lazare, How the Drug War
Created Crack, VILLAGE VOICE, January 23 (1990) (included in enclosed
packet).
18. In countries such as Holland where greater tolerance is accorded to
intravenous drug users, such users obtain clean needles and about
three-fourths of them receive medical care and counseling. As a result,
the I.V. drug use contribution to AIDS in the Netherlands has been
small, constituting only 8% of the country's 605 AIDS patients. In the
United States the comparable figures are 26% of a much larger number of
AIDS patients. Engelsman, The Dutch Model, NEW PERSPECTIVES QUARTERLY
(Summer 1989) at 44-45.
19. It is estimated that the 100,000 HIV-positive intravenous drugs users in
New York have infected 25,000 sexual partners and caused 4,000 infants
to be born infected with the AIDS virus. It is also expected that blood
contamination through use of intravenous drugs will be providing a major
pathway for AIDS to spread into the American heterosexual population.
For judges, politicians and retirees past the age of rampant sexual
activity, this public health problem may appear remote and is
susceptible to being ignored in the interests of continuing a morally
satisfying crusade. However, to Americans now under the age of 30 this
is a tragedy of enormous proportions. See Lazare, supra.
20. A common reason given for stepped-up anti-drug enforcement is the
violence associated with illicit drug use. However, neither marijuana
nor psychedelic drugs nor heroin or other opiates induces violent
behavior. To the extent such were legally available and used in place
of alcohol, which is violence-inducing and associated with 65% of all
murders, the effect would be to make the society less violent overall.
21. Like alcohol crack and other forms of cocaine will sometimes encourage
violent behavior. However, the vast majority of drug- related violence
comes not from the effects of the drugs, but from their illegality and
the resulting lack of access to peaceful means of dispute resolution.
A study of drug-related homicides in New York recently found 87% of
those involving cocaine to stem from territorial disputes and debt
collection or deals gone awry. Only 7.5% were related to the behavioral
effects of drugs, and of these, two-thirds involved alcohol rather than
cocaine. Summarized in Glasser, Talking Liberties: Taboo No More?, CIVIL
LIBERTIES (Fall/Winter 1989) at 22.
22. Attempts to create a drug-free America through stepped-up
campaigns of border interdiction and crop eradication have had no
substantial success. Various authorities agree that only about ten
percent of the cocaine coming into the United States is being
successfully interdicted and this has made no difference in the drug's
availability because producing countries generate vastly more than
enough cocaine to satisfy the U.S. market. Similarly, the massive
Campaign Against Marijuana Planting (CAMP) has given marijuana growers
a useful pretext for raising prices and has encouraged a more
oligopolistic market structure, but the total amount of marijuana
being grown has increased rather than decreased. In effect, law
enforcement winds up producing a kind of artificial price support
system for the growers and manufacturers of illegal drugs. See-
Thompson, "California's Unwinnable War Against Marijuana," Wall
Street Journal, January 8, 1990. Given the loss of tax revenues and
the large crime problem generated by prohibition of drugs, the only
possible benefit of such a system would be its progressive
redistribution of wealth from wealthier users to poorer growers and
sellers.
23. The most significant effects of "zero tolerance" and stepped up
enforcement campaigns have been to encourage distributors to switch
from delivering bulkier and more detectable drugs, such as marijuana,
to more concentrated--and also more dangerous--ones such as cocaine
and its derivative, crack. As a result, during the 1980's the price
differential between cocaine and marijuana by weight dropped from about
70:1 to about 3:1, and crack use became widespread among the inner
city poor. This parallelled the phenomenon during alcohol prohibition
where gin became more plentiful and cheaper than beer. See- Lazare,
supra; Cowan, A War Against Ourselves, NATIONAL REVIEW (December 5,
1986) (included in enclosed packet). Unless one takes the position
that illicit drug use generally poses no significant harm, one must
confront the fact that encouraging users to switch from marijuana to
the vastly more addictive crack has posed a serious detriment to the
public health. By contrast, the open legalization of marijuana in
Holland caused no significant increase in rates of pot smoking, but
rather a sharp drop in heroin use among the young because they no
longer had to obtain marijuana from the same distributors who sold
heroin. Engelsman, supra.
24. Notwithstanding its general ineffectiveness in curbing illicit drug
use, the war on drugs may be posing a significant civil liberties
threat to the American people generally. The nature of the threat
differs according to class position. For the urban underclass and
particularly its members under the age of thirty, this threat takes
the form of a greatly elevated likelihood of imprisonment. Largely
because of recurring drug wars, rates of imprisonment in the U.S. are
projected to have risen more than four-fold between 1970 and 1994.
See- National Council on Crime and Delinquency, The 1989 NCCD Prison
Population Forecast: The Impact of the War on Drugs (December 1989)
(included in enclosed packet). Given the projected expansions of prison
population, the heavily (and increasingly) nonwhite composition of
persons imprisoned on drug charges, the plans to require all prison
inmates to work and for their products to be made more readily
available for profitable sale in the private sector, see- enclosed
Gramm-Gingrich National Drug and Crime Emergency Act, it is possible
that we may be moving toward a partial reimplementation of the
institution of Negro slavery under the aegis of the criminal justice
system. It is already the case that the United States ranks either
first or second (behind the Republic of South Africa) in the world in
per capita imprisonment, and that there are more black males in prison
than in college, graduate and professional school combined.
25. For the white middle class, and particularly those segments of it in
and around universities, the civil liberties threat takes a different
and more subtle form. In this regard the seemingly arbitrary inclusion
of marijuana among the list of targeted substances is crucial. During
the 1970's marijuana gained widespread acceptance, particularly in and
around university campuses, and was even proposed for nationwide
decriminalization by President Carter. Because of its superiority over
alcohol as a facilitator of creativity and intellectually engaged
lifestyle, marijuana has come to be used with some regularity by a
substantial proportion of writers, artists, musicians, teachers and
others who might be thought of as avant-garde elements of society. A
nationwide estimate of about one-third of university students and
faculty under the age of 45 using marijuana would not be unreasonable.
Included among this population of pot smokers is a high proportion of
persons inclined to favor political change and hence likely to be
viewed by the government as dissident elements during times of
heightened political discord. Recent passage of laws, such as the
1988 Anti-drug Abuse Amendments Act, which establish harsh penalties
for possession of any amount of any drug anytime during the preceding
five years--e.g., $10,000 fines, cutoff of all governmental benefits,
commitment to "treatment" facilities-- creates a mechanism by which
Soviet-style, KGB-type surveilence and selective repression of
dissenters could be implemented in a way that circumvented established
first amendment protection. The likelihood of this occurring at some
future time is enhanced by provisions of the 1988 Act which divert
monies in the Department of Justice Assets Forfeiture Fund from general
federal revenues into a special account for "program-related expenses."
The primary uses of money in this fund appear to include purchase of
computerized equipment for record-keeping on the general population
(the D.E.A. had been keeping files on 1.5 million people as early as
1984) and purchase of evidence and payment to informants. As of the
end of 1989 the amount of money and property in this fund was valued
at approximately one billion dollars. See- Belkin, "Booty from Drug
Cases Enriches Police Coffers," New York Times, January 7, 1990 at A
19. It is reasonable to expect that such a system, once in place, could
be used selectively to intimidate and quell political dissent, thereby
impairing the society's capacity to adapt intelligently to a rapidly
changing world.
26. Urine testing, which is now employed in some form by a majority of
Fortune 500 companies, as well as by the military and significant
sectors of the government, poses a civil liberties threat of a
different type. Because marijuana is the most easily detectible
substance for the tests, showing up as "positive" for up to four to
six weeks after use, it accounts for 90% of the positive results on
urine ("EMIT") tests. See- "Test Negative," SCIENTIFIC AMERICAN,
March 1990 at 18. (included in enclosed packet). As a result, and due
in no small measure to various "relaxations" of fourth amendment rights
against unreasonable search and seizure, employers are now placed in
the position of acting as an enforcement arm of federal government,
particularly in relation to some of the government's most arbitrary
and socially destructive laws. The situation where government and
major employers unite to exert plenary control over how citizens
behave in their off-duty leisure hours is one of the hallmarks of a
totalitarian society. See generally- Hoffman & Silvers, STEAL THIS
URINE TEST (1987).
27. During the last few months a number of my students have informed me
that their elementary school children have been instructed in the
Buffalo public schools to turn their parents in to the police if they
detect marijuana smoke or other evidence of illicit drugs. When I was
in elementary school we were taught that such practices occurred only
in totalitarian societies, and that in order to ensure that they would
not occur here we should be prepared to fight a war against the Soviet
Union. It would be sadly ironic if, in the wake of their country's
"victory" in the Cold War Americans came to suffer some of the negative
consequences associated with life under totalitarian regimes.
28. None of the serious threats to civil liberties mentioned in proposed
findings 24 through 27, supra, is in any sense necessary. They stem
simply from misguided policies. A major improvement in our current
situation could be achieved simply by returning to enforcement
strategies as they were practiced prior to 1980. Light handed
enforcement directed solely against street dealing of the more
dangerous and addictive drugs (e.g., refined, concentrated forms of
cocaine and heroin) does about as much to limit dissemination of
these through the population as does the current drug war strategy,
and it does so at a small fraction of the social and economic costs.
See generally,- Wisotsky et. al., The War on Drugs: In Search of a
Breakthrough, 11 NOVA L. REV. 878 (1987).
29. Further improvement could be achieved by legalizing or securely
decriminalizing marijuana, thereby allowing law enforcement efforts to
be concentrated on the genuinely addictive drugs and tax revenues to be
raised which could fund treatment and maintenance centers for persons
addicted to such drugs. Serious efforts should be made to investigate
current claims that widespread cultivation of hemp for non-drug uses
would produce enormous ecological benefits by providing alternative
sources of paper, fabric and fuel. If these claims are borne out, then
government price-supports and subsidies for tobacco should be
transferred to the cultivation of hemp, particularly for its non-drug
uses. Curiously, widespread cultivation of hemp over substantial regions
of the United States was being advocated by Presidents Washington and
Jefferson shortly after the birth of the Republic. See- Herer, supra.
30. While there are good reasons for society to be very cautious about
allowing open, free market legalization of heroin and cocaine, see-
Wilson, Against the Legalization of Drugs, COMMENTARY (February 1990)
at 21 (contained in enclosed packet), a government-controlled system
of maintenance and treatment for certified drug-dependent people would
be far preferable to the current system of black market distribution
which generates widespread crime, escalating rates of incarceration
and a substantial hidden subsidy for organized crime. Whatever
disincentives were needed to keep large numbers of people from
choosing to become addicts (e.g., making addicts wait in line for
two hours to get their doses) could be built into the system of
distribution. Such a system worked quite well in Great Britain until
the issue became too politicized for it to continue. See Trebach, supra.
31. Psychedelic drugs pose greater hazards than marijuana, but less than
those of addictive drugs like heroin and cocaine. While some psychedelics,
such as PCP, may be inherently dangerous and thus appropriately prohibited
altogether, most can be taken safely by most people. The problems posed by
LSD, for example, in some ways resemble those presented by scuba diving.
Each is seen as a form of exploration that opens new vistas. Hence
participants often find the activity enormously stimulating and inspiring.
Each activity poses a small but significant risk of serious personal harm,
these being death for one and aggravation of pre-existing states of mental
instability for the other. Untrained, unsupervised use of unchecked
substances or equipment are ill-advised in both cases. Conversely, though,
a government- orchestrated campaign of persecution for either group of
explorers is likely to be viewed as barbaric by knowledgeable persons. In
each case a premium should be put on devising social policies that minimize
the hazards of the activities in question. ....
Thank you, Judge Elfvin, for the opportunity to place these proposed
findings of fact before the Court. I believe Your Honor can discern the
relationship between the information they present and the answer proposed
in response to the Court's question. If I may be of any further assistance,
please do not hesitate to call my secretary at (716) 636-2103. I do,
however, expect to be out of town during the period of May 21, 1990 to
June 10, 1990.
Sincerely,
Jeffrey M. Blum
Associate Professor of Law
University of Buffalo Law School
cc: The Honorable John T. Curtin
The Honorable Richard J. Arcara
The Honorable Robert L. Carter
The Honorable John J. Callahan
The Honorable M. Dolores Denman
The Honorable John H. Doerr
The Honorable Samuel L. Green
Susan Barbour, Esq.
(end)