From Applied Ethics: A Sourcebook
1. Classic Philosophers on Drunkenness — Aquinas, Montaigne, Pufendorf, Kant, Mill
2. Supreme Court Cases on Drugs —Ferguson v. City of Charleston, Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, Gonzales v. Raich
3. An Argument for Drug Legalization — American Civil Liberties Union
4. An Argument Against Drug Legalization — Donnie R. Marshall
5. Harm Reduction: Pro and Contra — Robert Newman and Robert E. Peterson
CLASSIC PHILOSOPHERS ON DRUNKENNESS
Aquinas, Montaigne, Pufendorf, Kant, Mill
In previous centuries, the most readily available mind-altering drug was alcohol, and, consequently, drunkenness was an issue that moral philosophers sometimes addressed. Below are five such discussions. Medieval Italian philosopher Thomas Aquinas (1225—1274) argued that drunkenness is a mortal sin if one intentionally becomes drunk, a venial sin for immoderate drinkers who are unaware that the beverage is intoxicating, and no sin for moderate drinkers who are unaware that the beverage is intoxicating. French philosopher Michel Montaigne (1533–1592) defends the benefits of drunkenness. He concedes that it’s a vice, but it is not as bad as others both regarding its effects on society and one’s conscience. We should not be connoisseurs, he argues, but drink indifferently with delight. German philosopher Samuel Pufendorf (1632–1694) argues that drunkenness is harmful to the drinker and thus violates the duty that one has to oneself. Regarding one’s legal responsibilities while drunk, he argues that drunkenness does not excuse a crime, and, in fact, there is usually a double penalty in such situations. Immanuel Kant (1724–1804) argues that drunkenness is an animalistic vice insofar as the drinker lowers himself to the level of an animal. But, he says, it is not as bad as other animalistic vices since at least the drinker becomes more sociable while in his drunken state. John Stuart Mill (1806–1873) defends the drinker’s freedom to become drunk, even if it is harmful to the drinker, as long as others are not also harmed. Even if drunkenness is against the drinker’s duty to himself, that is a personal matter for the drinker himself to deal without the intrusion of society.
AQUINAS: THE SIN OF DRUNKENNESS
Whether drunkenness is a sin?
Drunkenness may be understood in two ways. First, it may signify the [physiological] defect itself of a man resulting from his drinking much wine, the consequence being that he loses the use of reason. On this sense drunkenness denotes not a sin, but a penal defect resulting from a fault. Secondly, drunkenness may denote the act by which a man incurs this defect. This act may cause drunkenness in two ways. On one way, through the wine being too strong, without the drinker being cognizant of this: and in this way too, drunkenness may occur without sin, especially if it is not through his negligence, and thus we believe that Noah was made drunk as related in Genesis 9. On another way drunkenness may result from excessive desire and use of wine: in this way it is accounted a sin, and is comprised under gluttony as a species under its genus. For gluttony is divided into “surfeiting and drunkenness,” which are forbidden by the Apostle (Romans 13:13).
Whether drunkenness is a mortal sin?
The sin of drunkenness, as stated in the foregoing Article, consists in the immoderate use and desire of wine. Now this may happen to a man in three ways. First, so that he knows not the drink to be immoderate and intoxicating: and then drunkenness may be without sin, as stated above (Article 1). Secondly, so that he perceives the drink to be immoderate, but without knowing it to be intoxicating, and then drunkenness may involve a venial sin. Thirdly, it may happen that a man is well aware that the drink is immoderate and intoxicating, and yet he would rather be drunk than abstain from drink. Such a man is a drunkard properly speaking, because morals take their species not from things that occur accidentally and beside the intention, but from that which is directly intended. On this way drunkenness is a mortal sin, because then a man willingly and knowingly deprives himself of the use of reason, whereby he performs virtuous deeds and avoids sin, and thus he sins mortally by running the risk of falling into sin. For Ambrose says: “We learn that we should shun drunkenness, which prevents us from avoiding grievous sins. For the things we avoid when sober, we unknowingly commit through drunkenness.” Therefore drunkenness, properly speaking, is a mortal sin.
Whether drunkenness excuses from sin?
Two things are to be observed in drunkenness, as stated above (Article 1), namely the resulting defect and the preceding act. On the part of the resulting defect whereby the use of reason is fettered, drunkenness may be an excuse for sin, in so far as it causes an act to be involuntary through ignorance. But on the part of the preceding act, a distinction would seem necessary; because, if the drunkenness that results from that act be without sin, the subsequent sin is entirely excused from fault, as perhaps in the case of Lot. If, however, the preceding act [of getting drunk] was sinful, the person is not altogether excused from the subsequent sin, because the latter is rendered voluntary through the voluntariness of the preceding act, inasmuch as it was through doing something unlawful that he fell into the subsequent sin. Nevertheless, the resulting sin is diminished, even as the character of voluntariness is diminished. Wherefore Augustine says (Contra Faust. xxii, 44) that “Lot’s guilt is to be measured, not by the incest, but by his drunkenness.”
MONTAIGNE: THE ADVANTAGES OF DRUNKENNESS
In Favor of Immoderate Drinking
My taste and physical make up are greater enemies to this vice [of drunkenness] than I am. For besides that I easily submit my belief to the authority of ancient opinions, I look upon it indeed as an unmanly and stupid vice. But it is less malicious and hurtful than the other vices, which, almost all, more directly upset public society. And if we cannot please ourselves without it costing us something, as is commonly held, I find that this vice costs a man’s conscience less than the other vices. Besides, it is not difficult to prepare or find, and these are not minor considerations. A man well advanced both in dignity and age once told me that this was one of the three principal commodities of life that he still possessed. Where would a man more justly find it than among the natural conveniences? But he did not understand the situation correctly, for delicacy and the inquisitive choice of wines should be avoided. If you found your pleasure upon drinking of the best, you condemn yourself to the self-punishment of drinking of the worst. Your taste must be more indifferent and free, for a delicate palate is not required to make a good drunkard. The Germans drink almost indifferently of all wines with delight. Their business is to pour down and not to taste, and it’s so much the better for them. Their pleasure is so much the more plentiful and nearer at hand.
Secondly, to drink after the French fashion, only at two meals, and then very moderately, is to be too sparing of the favors of the god. There is more time and constancy required than this. The ancients spent whole nights in this exercise, and often times added the day following to stretch it out, and therefore we are to take greater liberty and stick closer to our work. I have seen a great lord of my time, a man of high activity and famous success, who, without setting himself to it, drank not much less than five quarts of wine as per his usual rate of drinking at meals. But when he left he appeared but too wise and discreet, to the detriment of our affairs. The pleasure we hold in esteem for the course of our lives ought to have a greater share of our time dedicated to it. We should, like shop-boys and laborers, refuse no occasion nor omit any opportunity of drinking, and always have it in our minds. I think we every day shorten and curtail the use of wine.
The drinking after breakfasts, dinner occasions, and light meals that I used to see in my father’s house when I was a boy, were more usual and frequent then than now. Is it that we pretend to a reformation? Truly, no. But it may be we are more addicted to Venus [the goddess of love] than our fathers were. They are two exercises that thwart and hinder one another in their vigor. Lechery weakens our stomach on the one side, and on the other, sobriety renders us more spruce and amorous for the exercise of love. . . .
The inconveniences of old age, that stand in need of some refreshment and support, might with reason create in me a desire of this faculty [of drinking], it being as it were the last pleasure the course of years deprives us of. The natural heat, say the wise people, first seats itself in the feet, which concerns infancy. Then it mounts into the middle region, where it makes a long residence and produces, in my opinion, the sole true pleasures of human life. All other pleasures sleep in comparison to this. Toward the end, like a vapor that still rises upward, it arrives at the throat, where it makes its final residence, and concludes the progress.
Limitations of Drunkenness
Nevertheless, I do not understand how a man can extend the pleasure of drinking beyond thirst, and create in his imagination an appetite that is artificial and against nature. My stomach could not proceed that far; it has enough to do to deal with what it takes in for its necessity. My constitution is not to prefer drink but only to following eating and washing down my meat, and for that reason my last drink is always the largest. And seeing that in old age we have our palate dulled with phlegms or depraved by some other ill constitution, the wine tastes better to us as the pores are cleaner washed and laid more open. At least, I seldom taste the first glass well. Anacharsis wondered why the Greeks drank in larger glasses toward the end of a meal than at the beginning; this, I suppose, was for the same reason the Germans do the same, who then begin their drinking competitions.
Plato forbids children wine till eighteen years of age, and to get drunk till forty. But, after forty, he permits them to please themselves, and to mix a little liberally in their feasts the influence of Dionysius [the god of wine], that good deity who restores to younger men their cheer, and to old men their youth; who soften the passions of the soul, as iron is softened by fire. And in his Laws Plato says that such merry drinking is of good and of great use, provided they have a discreet leader to govern and keep them in order. For drunkenness, he says, is a true and certain trial of everyone’s nature. Nevertheless, it is capable of inspiring old men with courage to divert themselves in dancing and music, which are things of great use, which they dare not attempt when sober. Plato, moreover, says that wine is able to supply the soul with temperance and the body with health. Nevertheless, he is pleased with these restrictions on drinking, which are in part borrowed from the Carthaginians: that men refrain from excessive drinking in the expeditions of war; that every judge and magistrate abstain from it when about the administrations of his place or the consultations of the public affairs; it is not to be done during the day, which is the time for other occupations, nor the night on which a man intends to get children.
It is said that the philosopher Stilpo, when oppressed with age, purposely accelerated his end by drinking pure wine. The same thing, but not intended by him, also sent off the philosopher Arcesilaus.
But, it is an old and interesting question, whether the soul of a wise man can be overcome by the strength of wine? . . . It is sufficient for a man to curb and moderate his inclinations, for totally to suppress them is not in him to do. . . . As Plato says, it is no purpose for a sober-minded man to knock at the door of poetic inspiration. Similarly, Aristotle says that no excellent soul is exempt from a mixture of madness; and he has reason to call all transports, however commendable, that surpass our own judgment and understanding, madness; forasmuch as wisdom is a regular government of the soul, which is carried on with measure and proportion, and for which she is to herself responsible. Plato argues in the same way that the faculty of prophesying is so far above us, that we must be out of ourselves when we meddle with it, and our prudence must either be obstructed by sleep or sickness, or lifted from her place by some celestial rapture.
PUFENDORF: DUTIES AND RESPONSIBILILITIES REGARDING DRUNKENNESS
Duties to Oneself
The love of himself is so deeply fixed in the mind of man, that it always puts him under an attentitive care of himself, and has him attempt by all means to procure his own advantage. In view of this, it would seem superfluous to uncover laws that oblige him to do the same. Yet, in other respects it is necessary that he be bound to the observation of some specific rules involving himself. For man is not born for himself alone, but being therefore furnished with so many excellent endowments that he may set forth his Creator’s praise, and be rendered a fit member of human society. It follows from this that it is his duty to cultivate and improve those gifts from his creator that he finds in himself, that they answer to the end of their donor. It is also his duty to contribute all that lies in his power to the benefit of human society. Thus, though it is true the ignorance of any man is his own shame and his own loss, yet we do not accuse the master of injustice, who chastises his scholar for negligence in not learning those sciences of which he is capable.
And since man consists of two parts, a soul and a body, then the first gives us the part of a director, and the other that of an instrument or subordinate minister. So, our actions are all performed by the guidance of the mind, and by the ministration of the body. We are hence obliged to take care of both, but especially the former. And that part is, above all things, to be formed and accommodated to support an adequate part of social life, and to be instilled with a sense and love of duty and decency. Then we are to devote ourselves to learning that is somewhat proper to our capacity and our condition in the world. Otherwise, we will become a useless burden to the earth, cumbersome to ourselves, and troublesome to others. And in due time we are to make choice of some honest state of life. It should be agreeable to our natural inclinations, the abilities of our body and mind, extraction, or wealth. Or it should be according as the just authority of our parents, the commands of our superiors, occasion or necessity as required.
But since the soul is supported by and dependent on the body, it is necessary that the strength of the body be continued and confirmed by convenient nourishment and exercise. And it should not be weakened by any intemperate eating or drinking, nor deliberated by unseasonable and needless labors or otherwise. For this reason, gluttony, drunkenness, the immoderate use of women, and similar things are to be avoided. Unbridled and exorbitant passions not only frequently disturb human society, but they are very harmful even to the person himself. For this reason, we ought to try our utmost to suppress them and subject them to reason. And because many dangers may be escaped if we encounter them with courage, we reject all weakness of the mind, and to be firm against all of the terrible appearances that any event may set before us.
Responsibility while Drunk
It is true indeed, that faults committed in drunkenness are not on that account excusable. Legislators have then thought fit to punish even ignorance, when the person is the cause of his own ignorance. Therefore a double penalty is usually enacted against drunken offenders. For here the excess, and consequently the ignorance, was of the man’s own procuring, it being in his power to avoid them. It was one of Solon’s laws, that a governor taken in drunkenness should be put to death; and Pittacus decreed, that a fault committed under this disorder should have a twofold punishment. Because, though perhaps a person while the fit is on him does not know what he does, yet in as much as he voluntarily applied himself to the use of such things as he knew would call a cloud on his understanding, he is supposed to have yielded consent to all the effects of that disorder.
Yet it will not follow from this consideration, that the promises of drunken men are obligatory, because there is great difference between committing a crime, and contracting an obligation. For since there lies an absolute prohibition against all sin, therefore men are to avoid all occasions that may probably draw them into a violation of their duty. And how many enormities drunkenness betrays a man to, is obvious to the meanest apprehension. An Action then in itself sinful, can by no means lose that character by proceeding from another sin which led and disposed a man to it. But on the other hand, since it is left to our free pleasure, whether we will contract new obligations, or no, we are not (as in the other case) bound to avoid all occasions which may render our consent imperfect and invalid. As we are not bound to decline sleeping, out of a fear that others should interpret our nodding or winking for a token of agreement to somewhat which they proposed. To this purpose, Seuton tells us a jesting piece of Knavery in Caligula. He auctioned off his superfluous gladiators; and as the auctioneer was performing the sale, Aponius Saturninus, a gentleman of the Pretorian dignity, happening to deep upon one of the benches, the Emperor commanded the auctioneer to take notice of the worthy Chapman that nodded to the price proposed. And the business was so managed, that the poor gentleman had laid out ninety thousand sesterces before he knew a word of his bargain. Therefore if drunkenness had no other ill effect, than that it made a man seem to give some indications, which at another time would imply consent, it would not on this bare account be esteemed unlawful. And since a man cannot contract an obligation by promise or pact, without agreeing to it, and at the same time understanding the business, we cannot infer his consent to such an engagement from his first consenting to make use of a thing, which would probably hinder the exercise of his reason. Especially, if we consider, that men seldom drink merely for the sake of stupefying their brain, but their general design is to comfort and cheer up their spirits; and the former effect steals upon them almost insensibly, while they unwarily prosecute the latter.
To make the difference appear more manifestly, we may add, that since the property of a crime or offence is to bring some evil upon some man, and of a promise to bring him some good, which before was not his due, and since to be positively hurt, or injured, is more odious in the eyes of common Justice, than barely not to acquire some benefit, there is much more reason why drunkenness should invalidate a promise, than why it should cancel a transgression. As for a man’s being bound to pay for that useless load of wine which he pours down, after his stomach is already overcharged, and which he would refuse, were he in his senses; this obligation arises from the contract made at the first sitting down, by which he engaged himself to give the price of whatever he should drink, though he drank it to no purpose. If during this fit of sottish extravagance he is guilty of any mischievous frolics, as throwing away the liquor, destroying the vessel or the windows, and the like, he stands bound to make satisfaction by the general law of reparation of damages.
KANT: DRUNKENNESS AN ANIMALISTIC VICE
Temperance regarding Bodily Pleasures
On the one hand, we should discipline the body. On the other, we have a duty to care for the body, which means that we should seek to promote its liveliness, cheerfulness, activity, strength and courage. In regard to the discipline of the body, we have observed the following two requirements: moderation regarding the real needs of the body, and temperance regarding the pleasures of the body. The needs of the body cannot be denied, but it is better that a person stay within limits, and when he exceeds them, it would be better to deny something that he needs rather than go too far, because weakness constitutes a failure. With intemperance, there are two kinds of deviations: gluttony with eating, and drunkenness with drinking. The excess in drinking is not in quantity (for, frequently we desire to drink plenty of water), but it is in regard to the delicacy and quality of the drink. But with food a person can be misled to eat even bad food.
Animalistic and Satanic Vices
Both departures of moderation are violations of duties to oneself. Both of these dishonor the man, because both are animalistic, and contrast with other vices of people which accord with human nature, such as lying, though these are also vices. But some people are such that they are outside of humanity, and they cannot even fit together with the nature and character of humanity. Such encumbrances are of two types: the animalistic and satanic vices. From the animalistic vices, man lowers himself to an animal. The satanic vices involve a degree of malice that goes far beyond the wickedness of men, and include three common ones: envy, ingratitude and malice. Among the animalistic vices, we find these: gluttony, drunkenness and crimes against nature. All of the animalistic vices are greatly contemptible, and the satanic ones are objects of the greatest hatred.
Of the two animalistic vices of gluttony and drunkenness, which is the most despicable and lowest? The tendency to drink is not as low as a voracious appetite, because the drink is a means that prompts sociability and conversation, and gives people zeal, and this gives him an excuse. But if drinking rises above that level, it becomes a vice of drunkenness. Drunkenness still remains an animalistic vice, but, insofar as it is a source of social interaction, it is not as contemptible as gluttony, which is far lower because ravenous hunger neither fosters social enjoyment nor revives of the body, but only shows its animalistic self. Drinking and drunkenness in private are just as shameful, though, for as the benefits of drinking disappear, it has no advantage over gluttony.
JOHN STUART MILL: THE LIBERTY TO BE DRUNK
The Limits of Duties to Oneself
The term duty to oneself, when it means anything more than prudence, means self-respect or self-development; and for none of these is anyone accountable to his fellow-creatures, because for none of them is it for the good of mankind that he be held accountable to them.
The distinction between the loss of consideration which a person may rightly incur by defect of prudence or of personal dignity, and the reprobation which is due to him for an offence against the rights of others, is not a merely nominal distinction. It makes a vast difference both in our feelings and in our conduct towards him, whether he displeases us in things in which we think we have a right to control him, or in things in which we know that we have not. If he displeases us, we may express our distaste, and we may stand aloof from a person as well as from a thing that displeases us; but we shall not therefore feel called on to make his life uncomfortable. We shall reflect that he already bears, or will bear, the whole penalty of his error; if he spoils his life by mismanagement, we shall not, for that reason, desire to spoil it still further: instead of wishing to punish him, we shall rather endeavor to alleviate his punishment, by showing him how he may avoid or cure the evils his conduct tends to bring upon him. He may be to us an object of pity, perhaps of dislike, but not of anger or resentment; we shall not treat him like an enemy of society: the worst we shall think ourselves justified in doing is leaving him to himself, if we do not interfere benevolently by showing interest or concern for him. It is far otherwise if he has infringed the rules necessary for the protection of his fellow-creatures, individually or collectively. The evil consequences of his acts do not then fall on himself, but on others; and society, as the protector of all its members, must retaliate on him; must inflict pain on him for the express purpose of punishment, and must take care that it be sufficiently severe. In the one case, he is an offender at our bar, and we are called on not only to sit in judgment on him, but, in one shape or another, to execute our own sentence: in the other case, it is not our part to inflict any suffering on him, except what may incidentally follow from our using the same liberty in the regulation of our own affairs, which we allow to him in his.
Possible Criticisms regarding the Liberty to be Drunk
The distinction here pointed out between the part of a person’s life which concerns only himself, and that which concerns others, many persons will refuse to admit. How (it may be asked) can any part of the conduct of a member of society be a matter of indifference to the other members? No person is an entirely isolated being; it is impossible for a person to do anything seriously or permanently hurtful to himself, without mischief reaching at least to his near connections, and often far beyond them. If he injures his property, he does harm to those who directly or indirectly derived support from it, and usually diminishes, by a greater or less amount, the general resources of the community. If he deteriorates his bodily or mental faculties, he not only brings evil upon all who depended on him for any portion of their happiness, but disqualifies himself for rendering the services which he owes to his fellow-creatures generally; perhaps becomes a burden on their affection or benevolence; and if such conduct were very frequent, hardly any offence that is committed would detract more from the general sum of good. Finally, if by his vices or follies a person does no direct harm to others, he is nevertheless (it may be said) injurious by his example; and ought to be compelled to control himself, for the sake of those whom the sight or knowledge of his conduct might corrupt or mislead.
And even (it will be added) if the consequences of misconduct could be confined to the vicious or thoughtless individual, ought society to abandon to their own guidance those who are manifestly unfit for it? If protection against themselves is confessedly due to children and persons under age, is not society equally bound to afford it to persons of mature years who are equally incapable of self-government? If gambling, or drunkenness, or incontinence, or idleness, or uncleanliness, are as injurious to happiness, and as great a hindrance to improvement, as many or most of the acts prohibited by law, why (it may be asked) should not law, so far as is consistent with practicability and social convenience, endeavor to repress these also? And as a supplement to the unavoidable imperfections of law, ought not opinion at least to organize a powerful police against these vices, and visit rigidly with social penalties those who are known to practice them? There is no question here (it may be said) about restricting individuality, or impeding the trial of new and original experiments in living. The only things it is sought to prevent are things which have been tried and condemned from the beginning of the world until now; things which experience has shown not to be useful or suitable to any person’s individuality. There must be some length of time and amount of experience, after which a moral or prudential truth may be regarded as established, and it is merely desired to prevent generation after generation from falling over the same precipice which has been fatal to their predecessors.
Response to this Criticisms
I fully admit that the mischief which a person does to himself may seriously affect, both through their sympathies and their interests, those nearly connected with him, and in a minor degree, society at large. When, by conduct of this sort, a person is led to violate a distinct and assignable obligation to any other person or persons, the case is taken out of the self-regarding class, and becomes amenable to moral disapprobation in the proper sense of the term. If, for example, a man, through intemperance or extravagance, becomes unable to pay his debts, or, having undertaken the moral responsibility of a family, becomes from the same cause incapable of supporting or educating them, he is deservedly reprobated, and might be justly punished; but it is for the breach of duty to his family or creditors, not for the extravagance. If the resources which ought to have been devoted to them, had been diverted from them for the most prudent investment, the moral culpability would have been the same. George Barnwell murdered his uncle to get money for his mistress, but if he had done it to set himself up in business, he would equally have been hanged. Again, in the frequent case of a man who causes grief to his family by addiction to bad habits, he deserves reproach for his unkindness or ingratitude; but so he may for cultivating habits not in themselves vicious, if they are painful to those with whom he passes his life, or who from personal ties are dependent on him for their comfort. Whoever fails in the consideration generally due to the interests and feelings of others, not being compelled by some more imperative duty, or justified by allowable self-preference, is a subject of moral disapprobation for that failure, but not for the cause of it, nor for the errors, merely personal to himself, which may have remotely led to it. In like manner, when a person disables himself, by conduct purely self-regarding, from the performance of some definite duty incumbent on him to the public, he is guilty of a social offence. No person ought to be punished simply for being drunk; but a soldier or a policeman should be punished for being drunk on duty. Whenever, in short, there is a definite damage, or a definite risk of damage, either to an individual or to the public, the case is taken out of the province of liberty, and placed in that of morality or law. . . .
The right inherent in society, to ward off crimes against itself by antecedent precautions, suggests the obvious limitations to the maxim, that purely self-regarding misconduct cannot properly be meddled within the way of prevention or punishment. Drunkennesses, for example, in ordinary cases, is not a fit subject for legislative interference; but I should deem it perfectly legitimate that a person, who had once been convicted of any act of violence to others under the influence of drink, should be placed under a special legal restriction, personal to himself; that if he were afterwards found drunk, he should be liable to a penalty, and that if when in that state he committed another offence, the punishment to which he would be liable for that other offence should be increased in severity. The making himself drunk, in a person whom drunkenness excites to do harm to others, is a crime against others. So, again, idleness, except in a person receiving support from the public, or except when it constitutes a breach of contract, cannot without tyranny be made a subject of legal punishment; but if either from idleness or from any other avoidable cause, a man fails to perform his legal duties to others, as for instance to support his children, it is no tyranny to force him to fulfill that obligation, by compulsory labor, if no other means are available.
Source: Thomas Aquinas, Summa Theologica, 2.2.Q. 150, tr. Fathers of the English Dominican Province. Source: Michel Montaigne, Essays, “Of Drunkenness,” tr. Charles Cotton. Samuel Pufendorf, The Duty of Man and Citizen (1673), 1.5, tr. Andrew Tooke; The Law of Nature and of Nations (1672), 3.6, tr. Basil Kennett. Source: Immanuel Kant, Lectures on Ethics (c. 1780), tr. Alan Smithee. John Stuart Mill, On Liberty (1869), 4, 5.
Questions for Review
1. What is Aquinas’s view on whether drunkenness excuses a sin?
2. What, according to Montaigne, were Plato’s views regarding drinking?
3. What is Pufendorf’s view regarding the promises that one makes while drunk?
4. What, for Kant, is the distinction between animalistic and Satanic vices?
5. What are some possible criticisms that Mill mentions regarding our freedom to act as we please with private conduct?
Questions for Analysis
1. Aquinas argues that drunkenness lessens one’s responsibility for a crime, but Pufendorf says that it increases one’s responsibility. Explain their reasoning and say who is right.
2. Pufendorf says that promises while drunk are not obligatory, yet drunk people are required to pay their bar tabs and make any reparations for damages that result from bar fights. What is his reasoning for saying that drunken promises are exempt, and explain whether promises really differ that much from situations involving bar tabs and broken pub windows?
3. Kant argues that drunkenness is not as bad as gluttony since drunkenness at least makes one sociable. Explain his rationale and say whether you agree.
4. Mill essentially dismisses the idea of duties to oneself and suggests that they reduce to little more than prudence, self-respect, and self-development, which is no one’s business but your own. How does Mill’s diluted view of duties to oneself affect Pufendorf and Kant’s arguments against drunkenness?
5. Mill argues that drunkenness can be punished when it tends to make a person violent. However, we don’t typically punish people for crimes before they actually commit them. Is there a problem with punishing people when they get drunk because they may be especially inclined to commit a violent act while in that condition?
SUPREME COURT CASES ON DRUGS
Ferguson v. City of Charleston; Gonzales v. Raich; Gonzales v. O Centro
With the enactment of the Controlled Substances Act in 1970, recreational drugs in the U.S. have been regulated in a comprehensive way by the U.S. Government. The Act stipulates five “Schedules”—or categories—of drugs based on the degree to which a drug has a high potential for abuse, no medical benefit, and a high potential for addiction. Since 1970, the Supreme Court has heard several cases pertaining to recreational drugs, and selections from three of these are below. The first, Ferguson v. City of Charleston (2001), considers whether hospitals can give nonconsensual drug tests without a warrant as a means of deterring pregnant women in prenatal care to not use cocaine. The court ruled that such searches violate the Consitution’s Fourth Amendment that prohibits “unreasonable searches and seizures”. In his dissenting opinion, Antonin Scalia argued that such tests do not violate the Fourth Amendment since it would be no different than when physicians or psychologists report information to the police about their dangerous patients. Second case, Gonzales v. Raich (2005), addresses the issue of medical marijuana, and whether it undermines the government’s ability to enforce the Controlled Substances Act. The court ruled that the government has a rational basis for believing that locally grown marijuana could be diverted into the illicit drug trade and, thus, Congress has the authority to restrict it under of Article 1 of the Constitution which grants Congress the power to regulate commerce between states. In her dissenting opinion, Sandra Day O’Connor argued that the majority decision undermines the federalist view that states are laboratories to “try novel social and economic experiments without risk to the rest of the country.”
The third case, Gonzales v. O Centro Espirita Beneficente Uniao do Vegeta (2006), considers whether a religious organization can use illegal drugs in its sacred ceremonies. Several decades ago, this issue would very likely have been settled in favor of such use, as established by the Supreme Court ruling in Sherbert v. Verner (1963): the use of otherwise illegal drugs for religious purposes is permitted based on whether (a) the person has a claim involving a sincere religious belief, and (b) the government action is a substantial burden on the person’s ability to act on that belief. However, this “Sherbert test,” as it is called, was overturned by a later Supreme Court ruling (Employment division v. Smith, 1980). This reversal so outraged Congress that it passed the Religious Freedom Restoration Act of 1993 (RFRA), to essentially restore the Sherbert test. According to the RFRA, the government can interfere with the religious use of drugs only if (a) the burden is necessary for the “furtherance of a compelling government interest,” and (b) the rule must be the least restrictive way in which to further the government interest. In Gonzales v. O Centro, the Supreme Court ruled in favor of a church that used a hallucinogenic drug in its ceremonies, arguing that such use did not interfere with the government’s drug enforcement efforts.
DRUG TESTING IN HOSPITALS: FERGUSON V. CITY OF CHARLESTON (2001)
In the fall of 1988, staff members at the Charleston public hospital operated by the Medical University of South Carolina (MUSC) became concerned about an apparent increase in the use of cocaine by patients who were receiving prenatal treatment. When the incidence of cocaine use among maternity patients remained unchanged despite referrals for counseling and treatment of patients who tested positive for that drug, MUSC staff offered to cooperate with the city in prosecuting mothers whose children tested positive for drugs at birth. . . . Petitioners, [ten] MUSC obstetrical patients arrested after testing positive for cocaine, filed this suit challenging the policy’s validity on, inter alia, the theory that warrantless and nonconsensual drug tests conducted for criminal investigatory purposes were unconstitutional searches.
Unreasonable Search: John Paul Stevens
In this case, we must decide whether a state hospital’s performance of a diagnostic test to obtain evidence of a patient’s criminal conduct for law enforcement purposes is an unreasonable search if the patient has not consented to the procedure. More narrowly, the question is whether the interest in using the threat of criminal sanctions to deter pregnant women from using cocaine can justify a departure from the general rule that an official nonconsensual search is unconstitutional if not authorized by a valid warrant. . . .
As [the Hospital] respondents have repeatedly insisted, their motive was benign rather than punitive. Such a motive, however, cannot justify a departure from Fourth Amendment protections, given the pervasive involvement of law enforcement with the development and application of the MUSC policy. The stark and unique fact that characterizes this case is that Policy M-7 was designed to obtain evidence of criminal conduct by the tested patients that would be turned over to the police and that could be admissible in subsequent criminal prosecutions. While respondents are correct that drug abuse both was and is a serious problem, “the gravity of the threat alone cannot be dispositive of questions concerning what means law enforcement officers may employ to pursue a given purpose.” The Fourth Amendment’s general prohibition against nonconsensual, warrantless, and suspicionless searches necessarily applies to such a policy.
Dissent: Antonin Scalia
There is always an unappealing aspect to the use of doctors and nurses, ministers of mercy, to obtain incriminating evidence against the supposed objects of their ministration—although here, it is correctly pointed out, the doctors and nurses were ministering not just to the mothers but also to the children whom their cooperation with the police was meant to protect. But whatever may be the correct social judgment concerning the desirability of what occurred here, that is not the issue in the present case. The Constitution does not resolve all difficult social questions, but leaves the vast majority of them to resolution by debate and the democratic process—which would produce a decision by the citizens of Charleston, through their elected representatives, to forbid or permit the police action at issue here. The question before us is a narrower one: whether, whatever the desirability of this police conduct, it violates the Fourth Amendment’s prohibition of unreasonable searches and seizures. In my view, it plainly does not. . . .
In sum, there can be no basis for the Court’s purported ability to “distinguis[h] this case from circumstances in which physicians or psychologists, in the course of ordinary medical procedures aimed at helping the patient herself, come across information that . . . is subject to reporting requirements,” unless it is this: That the addition of a law-enforcement-related purpose to a legitimate medical purpose destroys applicability of the “special-needs” doctrine. But that is quite impossible, since the special-needs doctrine was developed, and is ordinarily employed, precisely to enable searches by law enforcement officials who, of course, ordinarily have a law enforcement objective. Thus, in Griffin v. Wisconsin, a probation officer received a tip from a detective that petitioner, a felon on parole, possessed a firearm. Accompanied by police, he conducted a warrantless search of petitioner’s home. The weapon was found and used as evidence in the probationer’s trial for unlawful possession of a firearm. Affirming denial of a motion to suppress, we concluded that the “special need” of assuring compliance with terms of release justified a warrantless search of petitioner’s home. Notably, we observed that a probation officer is not “the police officer who normally conducts searches against the ordinary citizen. He is an employee of the State Department of Health and Social Services who, while assuredly charged with protecting the public interest, is also supposed to have in mind the welfare of the probationer . . . . In such a setting, we think it reasonable to dispense with the warrant requirement.”
Like the probation officer, the doctors here do not “ordinarily conduc[t] searches against the ordinary citizen,” and they are “supposed to have in mind the welfare of the [mother and child].” That they have in mind in addition the provision of evidence to the police should make no difference. . . .
As I indicated at the outset, it is not the function of this Court—at least not in Fourth Amendment cases—to weigh petitioners’ privacy interest against the State’s interest in meeting the crisis of “crack babies” that developed in the late 1980’s. I cannot refrain from observing, however, that the outcome of a wise weighing of those interests is by no means clear. The initial goal of the doctors and nurses who conducted cocaine-testing in this case was to refer pregnant drug addicts to treatment centers, and to prepare for necessary treatment of their possibly affected children. When the doctors and nurses agreed to the program providing test results to the police, they did so because (in addition to the fact that child abuse was required by law to be reported) they wanted to use the sanction of arrest as a strong incentive for their addicted patients to undertake drug-addiction treatment. And the police themselves used it for that benign purpose, as is shown by the fact that only 30 of 253 women testing positive for cocaine were ever arrested, and only 2 of those prosecuted. It would not be unreasonable to conclude that today’s judgment, authorizing the assessment of damages against the county solicitor and individual doctors and nurses who participated in the program, proves once again that no good deed goes unpunished.
But as far as the Fourth Amendment is concerned: There was no unconsented search in this case. And if there was, it would have been validated by the special-needs doctrine. For these reasons, I respectfully dissent.
MEDICAL MARIJUANA: GONZALES V. RAICH (2005)
California’s Compassionate Use Act authorizes limited marijuana use for medicinal purposes. Respondents Raich and Monson are California residents who both use doctor-recommended marijuana for serious medical conditions. After federal Drug Enforcement Administration (DEA) agents seized and destroyed all six of Monson’s cannabis plants, respondents brought this action seeking injunctive and declaratory relief prohibiting the enforcement of the federal Controlled Substances Act (CSA) to the extent it prevents them from possessing, obtaining, or manufacturing cannabis for their personal medical use. Respondents claim that enforcing the CSA against them would violate the Commerce Clause and other constitutional provisions. . . .
Held: Congress’ Commerce Clause authority includes the power to prohibit the local cultivation and use of marijuana in compliance with California law.
Medical Marijuana and Drug Trafficking: John Paul Stevens
California is one of at least nine States that authorize the use of marijuana for medicinal purposes. The question presented in this case is whether the power vested in Congress by Article I, §8, of the Constitution “[t]o make all Laws which shall be necessary and proper for carrying into Execution” its authority to “regulate Commerce with foreign Nations, and among the several States” includes the power to prohibit the local cultivation and use of marijuana in compliance with California law. . . .
Respondents in this case do not dispute that passage of the CSA, as part of the Comprehensive Drug Abuse Prevention and Control Act, was well within Congress’ commerce power. Nor do they contend that any provision or section of the CSA amounts to an unconstitutional exercise of congressional authority. Rather, respondents’ challenge is actually quite limited; they argue that the CSA’s categorical prohibition of the manufacture and possession of marijuana as applied to the intrastate manufacture and possession of marijuana for medical purposes pursuant to California law exceeds Congress’ authority under the Commerce Clause. . . .
In assessing the scope of Congress’ authority under the Commerce Clause, we stress that the task before us is a modest one. We need not determine whether respondents’ activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a “rational basis” exists for so concluding. Given the enforcement difficulties that attend distinguishing between marijuana cultivated locally and marijuana grown elsewhere, and concerns about diversion into illicit channels, we have no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA. . . .
Dissent: Sandra Day O’Connor
We enforce the “outer limits” of Congress’ Commerce Clause authority not for their own sake, but to protect historic spheres of state sovereignty from excessive federal encroachment and thereby to maintain the distribution of power fundamental to our federalist system of government. One of federalism’s chief virtues, of course, is that it promotes innovation by allowing for the possibility that “a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” New State Ice Co. v. Liebmann (Brandeis, J., dissenting).
This case exemplifies the role of States as laboratories. The States’ core police powers have always included authority to define criminal law and to protect the health, safety, and welfare of their citizens. Exercising those powers, California (by ballot initiative and then by legislative codification) has come to its own conclusion about the difficult and sensitive question of whether marijuana should be available to relieve severe pain and suffering. Today the Court sanctions an application of the federal Controlled Substances Act that extinguishes that experiment, without any proof that the personal cultivation, possession, and use of marijuana for medicinal purposes, if economic activity in the first place, has a substantial effect on interstate commerce and is therefore an appropriate subject of federal regulation. In so doing, the Court announces a rule that gives Congress a perverse incentive to legislate broadly pursuant to the Commerce Clause—nestling questionable assertions of its authority into comprehensive regulatory schemes—rather than with precision. . . .
DRUGS AND RELIGION: GONZALES V. O CENTRO ESPIRITA BENEFICENTE UNIAO DO VEGETAL (2006)
Members of respondent church (UDV) receive communion by drinking hoasca, a tea brewed from plants unique to the Amazon Rainforest that contains DMT, a hallucinogen regulated under Schedule I of the Controlled Substances Act, Schedule I(c). After U.S. Customs inspectors seized a hoasca shipment to the American UDV and threatened prosecution, the UDV filed this suit for declaratory and injunctive relief, alleging, inter alia, that applying the Controlled Substances Act to the UDV’s sacramental hoasca use violates RFRA [i.e., the Religious Freedom Restoration Act of 1993]. At a hearing on the UDV’s preliminary injunction motion, the Government conceded that the challenged application would substantially burden a sincere exercise of religion, but argued that this burden did not violate RFRA because applying the Controlled Substances Act was the least restrictive means of advancing three compelling governmental interests: protecting UDV members’ health and safety, preventing the diversion of hoasca from the church to recreational users, and complying with the 1971 United Nations Convention on Psychotropic Substances. The District Court granted relief, concluding that, because the parties’ evidence on health risks and diversion was equally balanced, the Government had failed to demonstrate a compelling interest justifying the substantial burden on the UDV. The court also held that the 1971 Convention does not apply to hoasca. The Tenth Circuit affirmed.
Held: The courts below did not err in determining that the Government failed to demonstrate, at the preliminary injunction stage, a compelling interest in barring the UDV’s sacramental use of hoasca.
Drug Restriction burdens on Religion: John G. Roberts
A religious sect with origins in the Amazon Rainforest receives communion by drinking a sacramental tea, brewed from plants unique to the region, that contains a hallucinogen regulated under the Controlled Substances Act by the Federal Government. The Government concedes that this practice is a sincere exercise of religion, but nonetheless sought to prohibit the small American branch of the sect from engaging in the practice, on the ground that the Controlled Substances Act bars all use of the hallucinogen. The sect sued to block enforcement against it of the ban on the sacramental tea, and moved for a preliminary injunction.
It relied on the Religious Freedom Restoration Act of 1993, which prohibits the Federal Government from substantially burdening a person’s exercise of religion, unless the Government “demonstrates that application of the burden to the person” represents the least restrictive means of advancing a compelling interest. . . .
Under the more focused inquiry required by RFRA and the compelling interest test, the Government’s mere invocation of the general characteristics of Schedule I substances, as set forth in the Controlled Substances Act, cannot carry the day. It is true, of course, that Schedule I substances such as DMT are exceptionally dangerous. Nevertheless, there is no indication that Congress, in classifying DMT, considered the harms posed by the particular use at issue here—the circumscribed, sacramental use of hoasca by the UDV. . . .
And in fact an exception has been made to the Schedule I ban for religious use. For the past 35 years, there has been a regulatory exemption for use of peyote—a Schedule I substance—by the Native American Church. In 1994, Congress extended that exemption to all members of every recognized Indian Tribe. Everything the Government says about the DMT in hoasca—that, as a Schedule I substance, Congress has determined that it “has a high potential for abuse,” “has no currently accepted medical use,” and has “a lack of accepted safety for use under medical supervision,” —applies in equal measure to the mescaline in peyote, yet both the Executive and Congress itself have decreed an exception from the Controlled Substances Act for Native American religious use of peyote. If such use is permitted in the face of the congressional findings for hundreds of thousands of Native Americans practicing their faith, it is difficult to see how those same findings alone can preclude any consideration of a similar exception for the 130 or so American members of the UDV who want to practice theirs. . . .
The well-established peyote exception also fatally undermines the Government’s broader contention that the Controlled Substances Act establishes a closed regulatory system that admits of no exceptions under RFRA. The Government argues that the effectiveness of the Controlled Substances Act will be “necessarily ... undercut” if the Act is not uniformly applied, without regard to burdens on religious exercise. The peyote exception, however, has been in place since the outset of the Controlled Substances Act, and there is no evidence that it has “undercut” the Government’s ability to enforce the ban on peyote use by non-Indians.
Source: Justices John Paul Stevens and Antonin Scalia, Ferguson v. City of Charleston (2001). Justices John Paul Stevens and Sandra Day O’Connor, Gonzales v. Raich (2005). Justice John G. Roberts, Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal (2006).
Questions for Review
1. In Ferguson v. City of Charleston, what were the hospital’s main motives for working with the police regarding the drug test results of pregnant women?
2. In Gonzales v. Raich, what was Stevens’s reason for siding with the U.S. Drug Enforcement Agency’s view that medical marijuana should not be exempt from the Controlled Substances Act?
3. In her dissenting opinion, what is O’Connor’s view of states as laboratories?
4. According to Roberts in Gonzales v. O Centro, what has the government’s policy been regarding the religious use of Peyote, and what bearing did that have on the UDV’s use of hoasca?
Questions for Analysis
1. Ferguson v. City of Charleston involves the weighing of two competing interests: an individual’s right to be free from unreasonable searches by the government and the government’s interest in protecting the health of newborn children. Was the Supreme Court correct in siding with the interests of privacy?
2. Gonzales v. Raich involves the weighing of two competing interests: the rights of individual States to permit marijuana for medical purposes and the U.S. Government’s need to curb the flow of illegal drugs. Was the Supreme Court correct in siding with the interests of the U.S. Government?
3. In her dissenting opinion in Gonzales v. Raich, O’Connor discusses the importance of allowing individual States to be laboratories of social experiment. What are the limits that the U.S. Government should allow regarding a given State’s social experiments with drugs and drug legalization? For example, should the U.S. Government’s Controlled Substances Act be thrown out in its entirety, leaving it to individual States to determine which drugs should be legal or illegal within their own borders?
4. Gonzales v. O Centro involves the weighing of two competing interests: religious freedom and the government’s need to curb the flow of illegal drugs. Was the Supreme Court correct in siding with the interests of religious freedom?
5. In both Gonzales v. Raich and Gonzales v. O Centro, the U.S. Government argued that the war on drugs would be undermined by allowing exceptions for medical and religious use of otherwise illegal drugs. Its main worry was that drugs in these excepted cases would make their way into the illegal drug market. Is this a legitimate worry? Explain.
AN ARGUMENT FOR DRUG LEGALIZATION
American Civil Liberties Union
Founded in 1917, the American Civil Liberties Union (ACLU) has as its mission to "defend and preserve the individual rights and liberties guaranteed to every person ... by the Constitution and laws of the United States." The ACLU takes stands on many morally controversial issues and often enters into legal battles in those areas. Among its positions, the ACLU supports abortion rights, gay rights and affirmative action. It also opposes capital punishment and government sponsored religious symbols or activities. On the issue of drug laws, the ACLU maintains that recreational drug use should be decriminalized – including marijuana, cocaine and heroin. In the selections below, they argue that the question hinges on the harm that drugs pose to others, not on the harm that it poses to users themselves. On balance, they maintain, more public harm is done through criminalization than would occur through a responsible system of decriminalization. It is costly and ineffective; it creates public health problems, gangsterism, an explosion in the number of nonviolent prisoners. It also as a devastating effect on African- American and Latino communities.
AGAINST DRUG PROHIBITION
More and more ordinary people, elected officials, newspaper columnists, economists, doctors, judges and even the Surgeon General of the United States are concluding that the effects of our drug control policy are at least as harmful as the effects of drugs themselves.
After decades of criminal prohibition and intensive law enforcement efforts to rid the country of illegal drugs, violent traffickers still endanger life in our cities, a steady stream of drug offenders still pours into our jails and prisons, and tons of cocaine, heroin and marijuana still cross our borders unimpeded.
The American Civil Liberties Union (ACLU) opposes criminal prohibition of drugs. Not only is prohibition a proven failure as a drug control strategy, but it subjects otherwise law-abiding citizens to arrest, prosecution and imprisonment for what they do in private. In trying to enforce the drug laws, the government violates the fundamental rights of privacy and personal autonomy that are guaranteed by our Constitution. The ACLU believes that unless they do harm to others, people should not be punished -- even if they do harm to themselves. There are better ways to control drug use, ways that will ultimately lead to a healthier, freer and less crime-ridden society.
Currently Illegal Drugs have not Always been Illegal
During the Civil War, morphine (an opium derivative and cousin of heroin) was found to have pain-killing properties and soon became the main ingredient in several patent medicines. In the late 19th century, marijuana and cocaine were put to various medicinal uses -- marijuana to treat migraines, rheumatism and insomnia, and cocaine to treat sinusitis, hay fever and chronic fatigue. All of these drugs were also used recreationally, and cocaine, in particular, was a common ingredient in wines and soda pop -- including the popular Coca Cola.
At the turn of the century, many drugs were made illegal when a mood of temperance swept the nation. In 1914, Congress passed the Harrison Act, banning opiates and cocaine. Alcohol prohibition quickly followed, and by 1918 the U.S. was officially a "dry" nation. That did not mean, however, an end to drug use. It meant that, suddenly, people were arrested and jailed for doing what they had previously done without government interference. Prohibition also meant the emergence of a black market, operated by criminals and marked by violence.
In 1933, because of concern over widespread organized crime, police corruption and violence, the public demanded repeal of alcohol prohibition and the return of regulatory power to the states. Most states immediately replaced criminal bans with laws regulating the quality, potency and commercial sale of alcohol; as a result, the harms associated with alcohol prohibition disappeared. Meanwhile, federal prohibition of heroin and cocaine remained, and with passage of the Marijuana Stamp Act in 1937 marijuana was prohibited as well. Federal drug policy has remained strictly prohibitionist to this day.
Decades of Drug Prohibition: A History of Failure
Criminal prohibition, the centerpiece of U.S. drug policy, has failed miserably. Since 1981, tax dollars to the tune of $150 billion have been spent trying to prevent Columbian cocaine, Burmese heroin and Jamaican marijuana from penetrating our borders. Yet the evidence is that for every ton seized, hundreds more get through. Hundreds of thousands of otherwise law abiding people have been arrested and jailed for drug possession. Between 1968 and 1992, the annual number of drug-related arrests increased from 200,000 to over 1.2 million. One-third of those were marijuana arrests, most for mere possession.
The best evidence of prohibition's failure is the government's current war on drugs. This war, instead of employing a strategy of prevention, research, education and social programs designed to address problems such as permanent poverty, long term unemployment and deteriorating living conditions in our inner cities, has employed a strategy of law enforcement. While this military approach continues to devour billions of tax dollars and sends tens of thousands of people to prison, illegal drug trafficking thrives, violence escalates and drug abuse continues to debilitate lives. Compounding these problems is the largely unchecked spread of the AIDS virus among drug-users, their sexual partners and their offspring.
Those who benefit the most from prohibition are organized crime barons, who derive an estimated $10 to $50 billion a year from the illegal drug trade. Indeed, the criminal drug laws protect drug traffickers from taxation, regulation and quality control. Those laws also support artificially high prices and assure that commercial disputes among drug dealers and their customers will be settled not in courts of law, but with automatic weapons in the streets.
Drug Prohibition is a Public Health Menace
Drug prohibition promises a healthier society by denying people the opportunity to become drug users and, possibly, addicts. The reality of prohibition belies that promise.
No quality control. When drugs are illegal, the government cannot enact standards of quality, purity or potency. Consequently, street drugs are often contaminated or extremely potent, causing disease and sometimes death to those who use them.
Dirty needles. Unsterilized needles are known to transmit HIV among intravenous drug users. Yet drug users share needles because laws prohibiting possession of drug paraphernalia have made needles a scarce commodity. These laws, then, actually promote epidemic disease and death. In New York City, more than 60 percent of intravenous drug users are HIV positive. By contrast, the figure is less than one percent in Liverpool, England, where clean needles are easily available.
Scarce treatment resources. The allocation of vast sums of money to law enforcement diminishes the funds available for drug education, preventive social programs and treatment. As crack use rose during the late 1980s, millions of dollars were spent on street-level drug enforcement and on jailing tens of thousands of low level offenders, while only a handful of public drug treatment slots were created. An especially needy group -- low-income pregnant women who abused crack -- often had no place to go at all because Medicaid would not reimburse providers. Instead, the government prosecuted and jailed such women without regard to the negative consequences for their children.
Drug Prohibition creates more Problems than it Solves
Drug prohibition has not only failed to curb or reduce the harmful effects of drug use, it has created other serious social problems.
Caught in the crossfire. In the same way that alcohol prohibition fueled violent gangsterism in the 1920s, today's drug prohibition has spawned a culture of drive-by shootings and other gun-related crimes. And just as most of the 1920s violence was not committed by people who were drunk, most of the drug-related violence today is not committed by people who are high on drugs. The killings, then and now, are based on rivalries: Al Capone ordered the executions of rival bootleggers, and drug dealers kill their rivals today. A 1989 government study of all 193 "cocaine-related" homicides in New York City found that 87 percent grew out of rivalries and disagreements related to doing business in an illegal market. In only one case was the perpetrator actually under the influence of cocaine.
A Nation of Jailers. The "lock 'em up" mentality of the war on drugs has burdened our criminal justice system to the breaking point. Today, drug-law enforcement consumes more than half of all police resources nationwide, resources that could be better spent fighting violent crimes like rape, assault and robbery.
The recent steep climb in our incarceration rate has made the U.S. the world's leading jailer, with a prison population that now exceeds one million people, compared to approximately 200,000 in 1970. Nonviolent drug offenders make up 58 percent of the federal prison population, a population that is extremely costly to maintain. In 1990, the states alone paid $12 billion, or $16,000 per prisoner. While drug imprisonments are a leading cause of rising local tax burdens, they have neither stopped the sale and use of drugs nor enhanced public safety.
Not Drug Free -- Just Less Free. We now have what some constitutional scholars call "the drug exception to the Bill of Rights." Random drug testing without probable cause, the militarization of drug law enforcement, heightened wiretapping and other surveillance, the enactment of vaguely worded loitering laws and curfews, forfeiture of people's homes and assets, excessive and mandatory prison terms -- these practices and more have eroded the constitutional rights of all Americans.
Prohibition is a Destructive Force in Inner City Communities
Inner city communities suffer most from both the problem of drug abuse and the consequences of drug prohibition.
Although the rates of drug use among white and non-white Americans are similar, African Americans and other racial minorities are arrested and imprisoned at higher rates. For example, according to government estimates only 12 percent of drug users are black, but nearly 40 percent of those arrested for drug offenses are black. Nationwide, one-quarter of all young African American men are under some form of criminal justice supervision, mostly for drug offenses. This phenomenon has had a devastating social impact in minority communities. Moreover, the abuse of drugs, including alcohol, has more dire consequences in impoverished communities where good treatment programs are least available.
Finally, turf battles and commercial disputes among competing drug enterprises, as well as police responses to those conflicts, occur disproportionately in poor communities, making our inner cities war zones and their residents the war's primary casualties.
Drugs are Here to Stay -- Let's Reduce their Harm
The universality of drug use throughout human history has led some experts to conclude that the desire to alter consciousness, for whatever reasons, is a basic human drive. People in almost all cultures, in every era, have used psychoactive drugs. Native South Americans take coca-breaks the way we, in this country, take coffee-breaks. Native North Americans use peyote and tobacco in their religious ceremonies the way Europeans use wine. Alcohol is the drug of choice in Europe, the U.S. and Canada, while many Muslim countries tolerate the use of opium and marijuana.
A "drug free America" is not a realistic goal, and by criminally banning psychoactive drugs the government has ceded all control of potentially dangerous substances to criminals. Instead of trying to stamp out all drug use, our government should focus on reducing drug abuse and prohibition-generated crime. This requires a fundamental change in public policy: repeal of criminal prohibition and the creation of a reasonable regulatory system.
Ending Prohibition Would not Necessarily Increase Drug Abuse
While it is impossible to predict exactly how drug use patterns would change under a system of regulated manufacture and distribution, the iron rules of prohibition are that 1) illegal markets are controlled by producers, not consumers, and 2) prohibition fosters the sale and consumption of more potent and dangerous forms of drugs.
During alcohol prohibition in the 1920s, bootleggers marketed small bottles of 100-plus proof liquor because they were easier to conceal than were large, unwieldy kegs of beer. The result: Consumption of beer and wine went down while consumption of hard liquor went up. Similarly, contemporary drug smugglers' preference for powdered cocaine over bulky, pungent coca leaves encourages use of the most potent and dangerous cocaine products. In contrast, under legal conditions, consumers -- most of whom do not wish to harm themselves -- play a role in determining the potency of marketed products, as indicated by the popularity of today's light beers, wine coolers and decaffeinated coffees. Once alcohol prohibition was repealed, consumption increased somewhat, but the rate of liver cirrhosis went down because people tended to choose beer and wine over the more potent, distilled spirits previously promoted by bootleggers. So, even though the number of drinkers went up, the health risks of drinking went down. The same dynamic would most likely occur with drug legalization: some increase in drug use, but a decrease in drug abuse.
Another factor to consider is the lure of forbidden fruit. For young people, who are often attracted to taboos, legal drugs might be less tempting than they are now. That has been the experience of The Netherlands: After the Dutch government decriminalized marijuana in 1976, allowing it to be sold and consumed openly in small amounts, usage steadily declined -- particularly among teenagers and young adults. Prior to decriminalization, 10 percent of Dutch 17- and 18-year-olds used marijuana. By 1985, that figure had dropped to 6.5 percent.
Would drugs be more available once prohibition is repealed? It is hard to imagine drugs being more available than they are today. Despite efforts to stem their flow, drugs are accessible to anyone who wants them. In a recent government-sponsored survey of high school seniors, 55 percent said it would be "easy" for them to obtain cocaine, and 85 percent said it would be "easy" for them to obtain marijuana. In our inner-cities, access to drugs is especially easy, and the risk of arrest has proven to have a negligible deterrent effect. What would change under decriminalization is not so much drug availability as the conditions under which drugs would be available. Without prohibition, providing help to drug abusers who wanted to kick their habits would be easier because the money now being squandered on law enforcement could be used for preventive social programs and treatment.
What the United States would Look Like after Repeal
Some people, hearing the words "drug legalization," imagine pushers on street corners passing out cocaine to anyone -- even children. But that is what exists today under prohibition. Consider the legal drugs, alcohol and tobacco: Their potency, time and place of sale and purchasing age limits are set by law. Similarly, warning labels are required on medicinal drugs, and some of these are available by prescription only.
After federal alcohol prohibition was repealed, each state developed its own system for regulating the distribution and sale of alcoholic beverages. The same could occur with currently illegal drugs. For example, states could create different regulations for marijuana, heroin and cocaine.
Ending prohibition is not a panacea. It will not by itself end drug abuse or eliminate violence. Nor will it bring about the social and economic revitalization of our inner cities. However, ending prohibition would bring one very significant benefit: It would sever the connection between drugs and crime that today blights so many lives and communities. In the long run, ending prohibition could foster the redirection of public resources toward social development, legitimate economic opportunities and effective treatment, thus enhancing the safety, health and well-being of the entire society.
RACE AND THE WAR ON DRUGS
With our history of racial injustice, the United States cannot and should not tolerate laws that systematically target communities of color. Yet, this is precisely the outcome of the current War on Drugs. Even though drugs remain as available as ever, we are continuing policies that have a devastating effect on African- American and Latino communities. The time has come to reverse course in a disastrous, ineffective, and racist war on drugs.
Who’s Who in the Criminal Justice System.
Today, black males have a 29% chance of serving time in prison at some point in their lives, Latino males have a 16% chance, and white males have a 4% chance.1 Even though whites outnumber blacks five to one and both groups use and sell drugs at similar rates,2 African-Americans comprise:
• 35% of those arrested for drug possession;
• 55% of those convicted for drug possession; and
• 74% of those imprisoned for drug possession.3
This skewed enforcement of drug laws has a devastating impact. One in three black men between the ages of 20 and 29 are currently either on probation, parole, or in prison. One in five black men have been convicted of a felony. In seven states, between 80% and 90% of prisoners serving time for drug offenses are black.4
The statistics for the Latino population are equally disturbing. Latinos comprise 12.5% of the population5 and use and sell drugs less than whites,6 yet they accounted for 46% of those charged with a federal drug offense in 1999.7 How Did We Get Here?
Historically, people of color have been a primary target of anti-drug policies and rhetoric. Beginning in the early 1900s, drug warriors invoked the image of black men high on drugs to pass the nation’s earliest drug laws.8 By 1930, 16 western states prohibited marijuana as a way to target the growing Mexican community that had flooded the U.S. job market.9 In 1951, the Boggs Act established stringent narcotics penalties in response to the threat of “communist opium” from Asia.10 In 1973, with a mandate from the public to “get tough on crime,” New York enacted the Rockefeller drug laws, requiring severe prison terms for drug crimes regardless of circumstance. A quarter century later, 94% of all people in prison in New York state on drug charges are black or Latino.11
By the 1980s, the link between minorities, drugs, and crime was firmly cemented in American rhetoric and embodied in President Reagan’s revamped “War on Drugs.” Media hysteria about an unsubstantiated crack epidemic amongst blacks prompted Congress to pass draconian mandatory minimum sentencing laws against crack cocaine. Penalties against powder cocaine – the same drug but typically associated with white users – remained relatively light. Even though most crack users and dealers are white, this “crack equals black” formula distorted prosecutions. By 2001, over 80% of federal crack defendants were black.12
• Possession of 500 grams of powder cocaine results in a 5-year prison term.
• Possession of 5 grams of crack cocaine results in a 5-year prison term.13
Law enforcement practices fuel racial inequalities in the criminal justice system. Over the years, the Drug Enforcement Administration (DEA) has helped train police to profile highway travelers for potential drug couriers.14 This profile is based on associating people of color with crime, creating a phenomenon known as “driving while black or brown.” In Maryland, for instance, although only 21% of drivers along a stretch of Interstate 95 are minorities including blacks, Latinos, Asians, and others, 80% of those who are pulled over and searched are people of color.15 In California, between 80% and 90% of all motorists arrested by law enforcement officials since 1991 have been members of minority groups.16 These statistics are not the product of chance, but of purpose and can be found throughout the country.
But racial profiling is not just limited to our highways. In 1998, 51,000 people were selected for body searches ranging from hand frisks to strip-searches by immigration officials at customs checkpoints. 96% of those searches yielded nothing; twothirds of the people selected were black or Latino.17
On the streets of our cities, young minorities are routinely stopped for Terry frisks, named after a Supreme Court ruling stating that police do not need a warrant or even probable cause to stop and search individuals as long as there exists a reasonable cause for suspicion. In New York City, between 1998 and 1999, the police recorded 45,000 such stops, 35,000 of which yielded nothing. Two-thirds of the people selected were black and Latino.18
A very clear incentive exists for police departments to engage in racial profiling. Civil asset forfeiture laws allow police to seize and sell property without proving its guilt and keep a portion of the assets for themselves. In fact, police departments are now dependent on forfeiture revenues in order to match funds for federal grants and for regular operational costs, including the salaries of the very police officers that are responsible for the seizures.19 By targeting minority communities whose voices and political power are marginalized, law enforcement agencies can exploit the power of forfeiture without many Americans ever learning of the practice.
In addition to these practices, overzealous local prosecutors and judges with minimal discretion in the sentencing process exacerbate the situation. Texas, for instance, has seen many racial exploits related to the War on Drugs. In the rural town of Tulia in 1999, 12% of the adult male African-American population was arrested on drug charges based solely on the word of an undercover officer who offered no hard evidence. In 2000, 15% of young black males in the town of Hearne were arrested in a drug sweep based solely on the word of an informant who had agreed to implicate targeted individuals. All of these men were innocent. Just one year later, dozens of Mexicans and Mexican-Americans were arrested in what has been dubbed as the “Dallas Sheetrock Scandal.” Tests later showed that some of drugs in question were really ground-up sheet-rock, planted by informants.20
Women and Children
Women as mothers, girlfriends, wives, and individuals are especially vulnerable to drug war injustices. Many women are coerced into the drug trade by a boyfriend or husband, often play only a small role, but then receive the same harsh prison terms. Between 1986 and 1996, the number of women incarcerated for drug offenses increased 888%.21 Overwhelmingly, most of these women come from poor backgrounds: 80% of imprisoned women report incomes of less than $2000 in the year before the arrest.22
Minority women are especially targeted by drug war policies while pregnant or parenting. Black women during pregnancy, for instance, are 10 times more likely to be drug tested or reported to child welfare agencies than white women. Before this practice was struck down by the Supreme Court, one public hospital in South Carolina selectively drug tested pregnant black women and reported positive tests to police who then arrested them, forcing many to give birth in shackles before taking them to jail.23
The effects drug war policies have on children are devastating. Today, 1.6 million children have a father in prison and 200,000 children have a mother in prison. Black children are nearly 9 times more likely, and Latino children 3 times more likely to have a parent in prison than white children.24 Children, too, are trapped within the criminal justice system. Though youth of all races use and sell drugs at similar rates, minority youth represent 60% to 75% of drug arrests today. In fact, black youth are incarcerated 25 times the rate of white youth; Latino youth, 13 times the rate of their white counterparts.25
The War on Drugs does more than fill our prisons. Drug war policies permeate every facet of life, including health, welfare, education, housing, and voting. The constant emphasis on punishment exacts a high price from minority populations and traps them in a vicious cycle of incarceration, addiction, and helplessness with little compassion or assistance from the government. Today, HIV/AIDS is one of the leading causes of death for blacks and Latinos aged 25 to 44. Nearly half of AIDS cases among blacks and Latinos are related to dirty needles,26 while 59% of AIDS cases in children result from a parent using an infected needle.27 Instead of implementing harm reduction policies like needle exchanges that prevent the spread of AIDS, the federal government blocks funding for such measures and states like New Jersey arrest anyone attempting to provide clean injection equipment.
In 2000, government estimates placed the number of drug users requiring treatment at 4.7 million but only 16.6% of this group received treatment.28 Over the past 8 years, treatment has comprised barely 20% of the total drug control budget, while domestic law enforcement represents more than 50% of the budget.29
In areas of welfare and education, punitive drug war policies deny government aid to those looking to improve their lives after a drug conviction. The 1996 Welfare Reform Act imposed a lifetime ban on welfare assistance to anyone convicted of a drug felony. This ban has endangered the ability of low-income parents and their children to meet their basic needs, including shelter, food, job training, education, and drug treatment.30 The 1998 amendments to the Higher Education Act deny or delay federal financial aid to anyone convicted of a drug offense. Meanwhile, there are five times as many black men in prison as in four-year colleges and universities. As with the Welfare Reform Act, no other offense, not even murder or rape, results in the loss of aid.31
In 2002, the Supreme Court ruled that public housing authorities could evict an entire family if someone in the household or a guest used drugs, even if the others knew nothing about it or tried to stop it.32 These innocent people can now lose their homes as well as their housing assistance, effectively rendering them homeless in communities where affordable housing is scarce.
In most states, the very people affected by these policies are the ones without a political voice. Due to felony disenfranchisement laws, an individual who is convicted of a felony can lose his or her right to vote, and in some states, the disenfranchisement is permanent. Across the nation, 13% of all adult black men have lost their right to vote, with rates reaching a staggering 40% of adult black men in some states.33
These are the grim realities of the War on Drugs. They are staged on a battlefield where the heaviest casualties are people of color. Instead of continuing these destructive policies that ultimately tear the fabric of our society, it is time to rethink and reassess the effectiveness and purpose of our current drug policies.
For notes to this article and hyperlinked sources, see “publications” at http://www.aclu.org/drugpolicy/
Source: ACLU, “Against Drug Prohibition” (1995), “Race and the War on Drugs” (2003), reprinted by permission of the American Civil Liberties Union.
Questions for Review
1. Why, according to the ACLU, is drug prohibition a public health menace?
2. What are some of the problems created by drug prohibition?
3. What evidence does the ACLU provide to show that ending prohibition would not necessarily increase drug abuse?
4. How has racial profiling factored into the war on drugs?
5. What examples does the ACLU give of the link between minorities and drugs?
6. How are women and children adversely affected by the illegalization of drugs?
Questions for Analysis
1. The ACLU focuses on the issue of whether recreational drug use should be legal, not whether recreational drug use is moral. Explain the difference between these two issues and discuss the types of arguments that might be relevant to one issue, but not the other.
2. The ACLU does not believe that the issue of drug legalization should be settled on the basis of the harm that drug users cause to themselves. Try to defend drug prohibition on the basis of the harm that drug users cause to themselves.
3. The ACLU argues that most of the public woes surrounding drugs would be eliminated if drugs were legalized. Try to refute this claim.
4. When defending the decriminalization of drugs, the ACLU does not distinguish between marijuana, cocaine, methamphetamine, or heroin. If legalized, should there be different kinds of distribution systems for recreational drugs? If so, suggest a possibility.
5. The ACLU contends that racial bias is the reason why racial minorities are so disproportionately affected by the war on drugs. Try to argue that racial bias is not necessarily a motivating factor.
AN ARGUMENT AGAINST DRUG LEGALIZATION
Donnie R. Marshall
Donnie R. Marshall was Deputy Administrator for the U.S. Drug Enforcement Administration (DEA), the federal agency responsible for suppressing the sale of recreational drugs. In this essay, Marshall defends the current U.S. policy which makes the sale and use of such drugs illegal. He argues that there are four likely outcomes to legalizing drugs. First, it would boost drug use since increased supply would create new demands. Second, it would contribute to a rise in crime because of the mood-altering effects of drugs. Third, it would increase social problems such as overdoses, accidents, theft and domestic violence. Fourth, it would create serious problems for law enforcement, particularly with under aged people. Marshall believes that drug enforcement works and we should not back off on our current policies.
I would like to discuss what I believe would happen if drugs were legalized. I realize that much of the current debate has been over the legalization of so-called medical marijuana. But I suspect that medical marijuana is merely the first tactical maneuver in an overall strategy that will lead to the eventual legalization of all drugs.
Whether all drugs are eventually legalized or not, the practical outcome of legalizing even one, like marijuana, is to increase the amount of usage among all drugs. It's been said that you can't put the genie back in the bottle or the toothpaste back in the tube. I think those are apt metaphors for what will happen if America goes down the path of legalization. Once America gives into a drug culture, and all the social decay that comes with such a culture, it would be very hard to restore a decent civic culture without a cost to America's civil liberties that would be prohibitively high.
There is a huge amount of research about drugs and their effect on society, here and abroad. I'll let others better acquainted with all of the scholarly literature discuss that research. What I will do is suggest four probable outcomes of legalization and then make a case why a policy of drug enforcement works.
LEGALIZATION WOULD BOOST DRUG USE
The first outcome of legalization would be to have a lot more drugs around, and, in turn, a lot more drug abuse. I can't imagine anyone arguing that legalizing drugs would reduce the amount of drug abuse we already have. Although drug use is down from its high mark in the late 1970s, America still has entirely too many people who are on drugs.
In 1962, for example, only four million Americans had ever tried a drug in their entire lifetime. In 1997, the latest year for which we have figures, 77 million Americans had tried drugs. Roughly half of all high school seniors have tried drugs by the time they graduate.
The result of having a lot of drugs around is more and more consumption. To put it another way, supply drives demand. That is an outcome that has been apparent from the early days of drug enforcement.
What legalization could mean for drug consumption in the United States can be seen in the drug liberalization experiment in Holland. In 1976, Holland decided to liberalize its laws regarding marijuana. Since then, Holland has acquired a reputation as the drug capital of Europe. For example, a majority of the synthetic drugs, such as Ecstasy (MDMA) and methamphetamine, now used in the United Kingdom are produced in Holland.
The effect of supply on demand can also be seen even in countries that take a tougher line on drug abuse. An example is the recent surge in heroin use in the United States. In the early 1990s, cocaine traffickers from Colombia discovered that there was a lot more profit with a lot less work in selling heroin. Several years ago, they began to send heroin from South America to the United States.
To make as much money as possible, they realized they needed not only to respond to a market, but to create a market. They devised an aggressive marketing campaign which included the use of brand names and the distribution of free samples of heroin to users who bought their cocaine. In many cases, they induced distributors to move quantities of heroin to stimulate market growth. The traffickers greatly increased purity levels, allowing many potential addicts who might be squeamish about using needles to snort the heroin rather than injecting it. The result has been a huge increase in the number of people trying heroin for the first time, five times as many in 1997 as just four years before.
I don't mean to imply that demand is not a critical factor in the equation. But any informed drug policy should take into consideration that supply has a great influence on demand. In 1997, American companies spent $73 billion advertising their products and services. These advertisers certainly must have a well-documented reason to believe that consumers are susceptible to the power of suggestion, or they wouldn't be spending all that money. The market for drugs is no different. International drug traffickers are spending enormous amounts of money to make sure that drugs are available to every American kid in a school yard.
Dr. Herbert Kleber, a professor of psychiatry at Columbia University College of Physicians and Surgeons, and one of the nation's leading authorities on addiction, stated in a 1994 article in the New England Journal of Medicine that clinical data support the premise that drug use would increase with legalization. He said:
"There are over 50 million nicotine addicts, 18 million alcoholics or problem drinkers, and fewer than 2 million cocaine addicts in the United States. Cocaine is a much more addictive drug than alcohol. If cocaine were legally available, as alcohol and nicotine are now, the number of cocaine abusers would probably rise to a point somewhere between the number of users of the other two agents, perhaps 20 to 25 million...the number of compulsive users might be nine times higher than the current number. When drugs have been widely available -- as...cocaine was at the turn of the century -- both use and addiction have risen." I can't imagine the impact on this society if that many people were abusers of cocaine. From what we know about the connection between drugs and crime, America would certainly have to devote an enormous amount of its financial resources to law enforcement.
LEGALIZATION WOULD CONTRIBUTE TO A RISE IN CRIME
The second outcome of legalization would be more crime, especially more violent crime. There's a close relationship between drugs and crime. This relationship is borne out by the statistics. Every year, the Justice Department compiles a survey of people arrested in a number of American cities to determine how many of them tested positive for drugs at the time of their arrest. In 1998, the survey found, for example, that 74 percent of those arrested in Atlanta for a violent crime tested positive for drugs. In Miami, 49 percent; in Oklahoma City, 60 percent.
There's a misconception that most drug-related crimes involve people who are looking for money to buy drugs. The fact is that the most drug-related crimes are committed by people whose brains have been messed up with mood-altering drugs. A 1994 study by the Bureau of Justice Statistics compared Federal and State prison inmates in 1991. It found, for example, that 18 percent of the Federal inmates had committed homicide under the influence of drugs, whereas 2.7 percent committed homicide to get the money to buy drugs. The same disparities showed up for State inmates: almost 28 percent committed homicide under the influence versus 5.3 percent to get money to buy drugs.
Those who propose legalization argue that it would cut down on the number of drug-related crimes because addicts would no longer need to rob people to buy their drugs from illicit sources. But even supposing that argument is true, which I don't think that it is, the fact is that so many more people would be abusing drugs, and committing crimes under the influence of drugs, that the crime rate would surely go up rather than down.
It's clear that drugs often cause people to do things they wouldn't do if they were drug-free. Too many drug users lose the kind of self-control and common sense that keeps them in bounds. In 1998, in the small community of Albion, Illinois, two young men went on a widely reported, one-week, non-stop binge on methamphetamine. At the end of it, they started a killing rampage that left five people dead. One was a Mennonite farmer. They shot him as he was working in his fields. Another was a mother of four. They hijacked her car and killed her.
The crime resulting from drug abuse has had an intolerable effect on American society. To me, the situation is well illustrated by what has happened in Baltimore during the last 50 years. In 1950, Baltimore had just under a million residents. Yet there were only 300 heroin addicts in the entire city. That's fewer than one out of every 3,000 residents. For those 300 people and their families, heroin was a big problem. But it had little effect on the day-to-day pattern of life for the vast majority of the residents of Baltimore.
Today, Baltimore has 675,000 residents, roughly 70 percent of the population it had in 1950. But it has 130 times the number of heroin addicts. One out of every 17 people in Baltimore is a heroin addict. Almost 39,000 people. For the rest of the city's residents, it's virtually impossible to avoid being affected in some way by the misery, the crime and the violence that drug abuse has brought to Baltimore.
People who once might have sat out on their front stoops on a hot summer night are now reluctant to venture outdoors for fear of drug-related violence. Drug abuse has made it a matter of considerable risk to walk down the block to the corner grocery store, to attend evening services at church, or to gather in the school playground.
New York City offers a dramatic example of what effective law enforcement can do to stem violent crime. City leaders increased the police department by 30 percent, adding 8,000 officers. Arrests for all crimes, including drug dealing, drug gang activity and quality of life violations which had been tolerated for many years, increased by 50 percent. The capacity of New York prisons was also increased.
The results of these actions were dramatic. In 1990, there were 2,262 homicides in New York City. By 1998, the number of homicides had dropped to 663. That's a 70 percent reduction in just eight years. Had the murder rate stayed the same in 1998 as it was in 1990, 1629 more people would have been killed in New York City. I believe it is fair to say that those 1629 people owe their lives to this effective response by law enforcement.
LEGALIZATION WOULD HAVE CONSEQUENCES FOR SOCIETY
The third outcome of legalization would be a far different social environment. The social cost of drug abuse is not found solely in the amount of crime it causes. Drugs cause an enormous amount of accidents, domestic violence, illness, and lost opportunities for many who might have led happy, productive lives.
Drug abuse takes a terrible toll on the health and welfare of a lot of American families. In 1996, for example, there were almost 15,000 drug-induced deaths in the United States, and a half-million emergency room episodes related to drugs. The Centers for Disease Control and Prevention has estimated that 36 percent of new HIV cases are directly or indirectly linked to injecting drug users.
Increasing drug use has had a major impact on the workplace. According to estimates in the 1997 National Household Survey, a study conducted by the Substance Abuse and Mental Health Services Administration (SAMHSA), 6.7 million full-time workers and 1.6 million part-time workers are current users of illegal drugs.
Employees who test positive for drug use consume almost twice the medical benefits as nonusers, are absent from work 50 percent more often, and make more than twice as many workers' compensation claims. Drug use also presents an enormous safety problem in the workplace.
This is particularly true in the transportation sector. Marijuana, for example, impairs the ability of drivers to maintain concentration and show good judgment on the road. A study released by the National Institute on Drug Abuse surveyed 6,000 teenage drivers. It studied those who drove more than six times a month after using marijuana. The study found that they were about two-and-a-half times more likely to be involved in a traffic accident than those who didn't smoke before driving.
The problem is compounded when drivers have the additional responsibility for the safety of many lives. In Illinois, for example, drug tests were administered to current and prospective school bus drivers between 1995 and 1996. Two hundred tested positive for marijuana, cocaine and other drugs. In January 1987, a Conrail engineer drove his locomotive in front of an Amtrak passenger train, killing 16 people and injuring 170. It was later determined that just 18 minutes before the crash, both he and his brakeman had been smoking marijuana.
In addition to these public safety risks and the human misery costs to drug users and their families associated with drug abuse, the Office of National Drug Control Policy has put a financial price tag on this social ill. According to the 1999 National Drug Control Strategy, illegal drugs cost society about $110 billion every year.
Proponents of legalization point to several liberalization experiments in Europe -- for example, the one in Holland that I have already mentioned. The experiment in Holland is now 23 years old, so it provides a good illustration of what liberalizing our drug laws portends.
The head of Holland's best known drug abuse rehabilitation center has described what the new drug culture has created. The strong form of marijuana that most of the young people smoke, he says, produces "a chronically passive individual -- someone who is lazy, who doesn't want to take initiatives, doesn't want to be active -- the kid who'd prefer to lie in bed with a joint in the morning rather than getting up and doing something."
England's experience with widely available heroin shows that use and addiction increase. In a policy far more liberal than America's, Great Britain allowed doctors to prescribe heroin to addicts. There was an explosion of heroin use, and by the mid-1980s known addiction rates were increasing by about 30 percent a year. According to James Q. Wilson, in 1960, there were 68 heroin addicts registered with the British Government. Today, there are roughly 31,000.
Liberalization in Switzerland has had much the same results. This small nation became a magnet for drug users the world over. In 1987, Zurich permitted drug use and sales in a part of the city called Platzspitz, dubbed "Needle Park." By 1992, the number of regular drug users at the park had reportedly swelled from a few hundred in 1982 to 20,000 by 1992. The experiment has since been terminated.
In April, 1994, a number of European cities signed a resolution titled "European Cities Against Drugs," commonly known as the Stockholm resolution. The signatories include some of the major European cities, like Berlin, Stockholm, Paris, Madrid, London, Warsaw and Moscow. As the resolution stated: "the answer does not lie in making harmful drugs more accessible, cheaper and socially acceptable. Attempts to do this have not proved successful. We believe that legalizing drugs will, in the long term, increase our problems. By making them legal, society will signal that it has resigned to the acceptance of drug abuse." I couldn't say it any better than that. After seeing the results of liberalization up close, these European cities clearly believe that liberalization is a bad idea.
You do not have to visit Amsterdam or Zurich or London to witness the effects of drug abuse. If you really want to discover what legalization might mean for society, talk to a local clergyman or an eighth grade teacher, or a high school coach, or a scout leader or a parent. How many teachers do you know who come and visit your offices and say, Congressman, the thing that our kids need more than anything else is greater availability to drugs. How many parents have you ever known to say, "I sure wish my child could find illegal drugs more easily than he can now."
Or talk to a local cop on the beat. Night after night, they deal with drug-induced domestic violence situations. They roll up to a house and there is a fight, and the people are high on pot or speed, or their husband or father is a heroin addict, and you can't wake him up or he's overdosed in the family bedroom. That's where you see the real effects of drugs.
Anyone who has ever worked undercover in drug enforcement has witnessed young children, 12- and 14-year old girls, putting needles into their arms, shooting up heroin or speed. To feed their habit, the kids start stealing from their parents and their brothers and sisters, stealing and pawning the watch that's been handed down from their grandmother to buy a bag of dope. Drug addiction is a family affair. It's a tragedy for everyone involved. And it wouldn't matter a bit to these families if the drugs were legal. The human misery would be the same. There would just be more of it.
LEGALIZATION WOULD PRESENT A LAW ENFORCEMENT NIGHTMARE
The fourth outcome of legalization would be a law enforcement nightmare. I suspect few people would want to make drugs available to 12-year old children. That reluctance points to a major flaw in the legalization proposal. Drugs will always be denied to some sector of the population, so there will always be some form of black market and a need for drug enforcement.
Consider some of the questions that legalization raises. What drugs will be legalized? Will it be limited to marijuana? If the principle is advanced that drug abuse is a victimless crime, why limit drug use to marijuana?
I know that there are those who will make the case that drug addiction hurts no one but the user. If that becomes part of the conventional wisdom, there will certainly be pressure to legalize all drug use. Only when people come to realize how profoundly all of us are affected by widespread drug abuse will there be pressure to put the genie back in the bottle. By then, it may be too late.
But deciding what drugs to legalize will only be part of the problem. Who will be able to buy drugs legally? Only those over 18 or 21? If so, you can bet that many young people who have reached the legal age will divert their supplies to younger friends. Of course, these young pushers will be in competition with many of the same people who are now pushing drugs in school yards and neighborhood streets.
Any attempt to limit drug use to any age group at all will create a black market, with all of the attendant crime and violence, thereby defeating one of the goals of legalization. That's also true if legalization is limited to marijuana. Cocaine, heroin and methamphetamine will be far more profitable products for the drug lords. Legalization of marijuana alone would do little to stem illegal trafficking.
Will airline pilots be able to use drugs? Heart surgeons? People in law enforcement or the military? Teachers? Truck drivers? Workers in potentially dangerous jobs like construction?
Drug use has been demonstrated to result in lower work-place productivity, and often ends in serious, life-threatening accidents. Many drug users are so debilitated by their habit that they can't hold jobs. Which raises the question, if drug users can't hold a job, where will they get the money to buy drugs? Will the right to use drugs imply a right to the access to drugs? If so, who will distribute free drugs? Government employees? The local supermarket? The college bookstore? If they can't hold a job, who will provide their food, clothing and shelter?
Virtually any form of legalization will create a patchwork quilt of drug laws and drug enforcement. The confusion would swamp our precinct houses and courtrooms. I don't think it would be possible to effectively enforce the remaining drug laws in that kind of environment.
DRUG ENFORCEMENT WORKS
This is no time to undermine America's effort to stem drug abuse. America's drug policies work. From 1979 to 1994, the number of drug users in America dropped by almost half. Two things significantly contributed to that outcome. First, a strong program of public education; second, a strict program of law enforcement.
If you look over the last four decades, you can see a pattern develop. An independent researcher, R. E. Peterson, has analyzed this period, using statistics from a wide variety of sources, including the Justice Department and the White House Office of National Drug Control Strategy. He broke these four decades down into two periods: the first, from 1960 to 1980, an era of permissive drug laws; the second, from 1980 to 1995, an era of tough drug laws.
During the permissive period, drug incarceration rates fell almost 80 percent. During the era of tough drug laws, drug incarceration rates rose almost 450 percent. Just as you might expect, these two policies regarding drug abuse had far different consequences. During the permissive period, drug use among teens climbed by more than 500 percent. During the tough era, drug use by high school students dropped by more than a third.
Is there an absolute one-to-one correlation between tougher drug enforcement and a declining rate of drug use? I wouldn't suggest that. But the contrasts of drug abuse rates between the two eras of drug enforcement are striking.
One historian of the drug movement has written about America's experience with the veterans of Vietnam. As you may recall from the early 1970s, there was a profound concern in the American government over the rates of heroin use by our military personnel in Vietnam. At the time, U.S. Army medical officers estimated that about 10-15 percent of the lower ranking enlisted men in Vietnam were heroin users.
Military authorities decided to take a tough stand on the problem. They mandated a drug test for every departing soldier. Those who failed were required to undergo drug treatment for 30 days. The theory was that many of the soldiers who were using heroin would give it up to avoid the added 30 days in Vietnam. It clearly worked. Six months after the tests began, the percentage of soldiers testing positive dropped from 10 percent to two percent.
There may be a whole host of reasons for this outcome. But it demonstrates that there is nothing inevitable about drug abuse. In fact, the history of America's experience with drugs has shown us that it was strong drug enforcement that effectively ended America's first drug epidemic, which lasted from the mid-1880s to the mid-1920s.
By 1923, about half of all prisoners at the Federal penitentiary in Leavenworth, Kansas, were violators of America's first drug legislation, the Harrison Act. If you are concerned by the high drug incarceration rates of the late 1990s, consider the parallels to the tough drug enforcement policies of the 1920s. It was those tough policies that did much to create America's virtually drug-free environment of the mid-20th Century.
Drug laws can work, if we have the national resolve to enforce them. As a father, as someone who's had a lot of involvement with the Boy Scouts and Little Leaguers, and as a 30-year civil servant in drug enforcement, I can tell you that there are a lot of young people out there looking for help. Sometimes helping them means saying "no," and having the courage to back it up.
Let me tell you a story about one of them. He was a young man who lived near Austin, Texas. He had a wife who was pregnant. To protect their identities, I'll call them John and Michelle. John was involved in drugs, and one night we arrested him and some of his friends on drug charges. He went on to serve a six-month sentence before being turned loose.
Sometime after he got out, he and his wife came to our office looking for me. They rang the doorbell out at the reception area, and my secretary came back and said they were here to see me. I had no idea what they wanted. I was kind of leery, thinking they might be looking for revenge. But I went out to the reception area anyway.
John and Michelle were standing there with a little toddler. They said they just wanted to come in so we could see their new baby. And then Michelle said there was a second reason they came by. When he got arrested, she said, that's the best thing that ever happened to them.
We had been very wholesome people, she said. John was involved in sports in high school. He was an all-American guy. Then he started smoking pot. His parents couldn't reach him. His teachers couldn't reach him. He got into other drugs. He dropped out of high school. The only thing that ever got his attention, she said, was when he got arrested.
Meanwhile, John was listening to all this and shaking his head in agreement. He said that his high school coach had tried to counsel him, but he wouldn't listen to him. He said his big mistake was dropping out of sports. He thought that if he had stayed in sports he wouldn't have taken the route he did.
When I arrested those kids that night I had no idea of the extent to which I would ultimately help them out of their problems and influence their lives in a positive way. In 30 years of dealing with young Americans, I believe that John is more typical than not.
America spends millions of dollars every year on researching the issue of drugs. We have crime statistics and opinion surveys and biochemical research. And all of that is important. But what it all comes down to is whether we can help young people like John -- whether we can keep them from taking that first step into the world of drugs that will ruin their careers, destroy their marriages and leave them in a cycle of dependency on chemicals.
Whether in rural areas, in the suburbs, or in the inner cities, there are a lot of kids who could use a little help. Sometimes that help can take the form of education and counseling. Often it takes a stronger approach. And there are plenty of young people, and older people as well, who could use it.
If we as a society are unwilling to have the courage to say no to drug abuse, we will find that drugs will not only destroy the society we have built up over 200 years, but ruin millions of young people like John.
Drug abuse, and the crime and personal dissolution and social decay that go with it, are not inevitable. Too many people in America seem resigned to the growing rates of drug use. But America's experience with drugs shows that strong law enforcement policies can and do work.
At DEA, our mission is to fight drug trafficking in order to make drug abuse the most expensive, unpleasant, risky, and disreputable form of recreation a person could have. If drug users aren't worried about their health, or the health and welfare of those who depend on them, they should at least worry about the likelihood of getting caught. Not only do tough drug enforcement policies work, but I might add that having no government policy, as many are suggesting today, is in fact a policy, one that will reap a whirlwind of crime and social decay.
Source: U.S. House Criminal Justice hearing on Pros and Cons of Drug Legalization, Decriminalization, and Harm Reduction, 1999.
Questions for Review
1. What is Marshall’s argument that legalization would boost drug use?
2. What is Marshall’s argument that legalization would increase crime?
3. Describe the negative consequences in European countries from permissive drug laws.
4. Describe how the legalization of drugs would create a black market for drugs.
5. What are some of Marshall’s examples that show the effectiveness of drug enforcement?
Questions for Analysis
1. Suppose that Marshall is correct that the legalization of drugs would create a serious harm to society. Might this be counterbalanced by the personal benefits of free choice? Argue for one side or the other.
2. The ACLU suggests that taking drugs does not incline the user to become more violent. Marshall argues that it does. Compare the evidence that both offer for their respective positions and say which is more compelling.
3. The ACLU and Marshall both discuss the lenient drug laws in some European countries, and they come to different conclusions. Examine what each side says on the subject and say which view is more compelling.
4. Marshall suggests that drug legalization would create a black market for drugs and make enforcement difficult. Examine his evidence and suggest a policy that might reduce a black market.
5. Marshall compares the success of drug enforcement in the early 1900s to its success today. Is this a legitimate comparison? Argue one side or the other.
DRUG HARM REDUCTION: PRO AND CONTRA
Robert Newman and Robert E. Peterson
“Harm reduction” refers to a range of social policies that aim to reduce the harmful effects of recreational drug use on addicts. Examples of harm reduction policies include needle exchange programs, safe injection sites, and providing pharmaceutical-grade heroin to addicts. The selections below are from a Congressional hearing on drug harm reduction. In favor of harm reduction policies is physician Robert G. Newman, President and CEO of a health care corporation that controls several major hospitals in metropolitan New York City. Newman argues that harm reduction programs are misunderstood by critics who think harm reduction fails because it doesn’t cure addicts. But, he explains, harm reduction with drugs should be comparable with the goals of Alcoholics anonymous: drug addiction cannot be cured, and addicts must work at their problem one day at a time. In few areas of health is there a realistic hope of completely eliminating harm from a disease or completely curing it. It is thus unfair, he argues, to have unrealistic expectations for harm reduction policies regarding drugs. On the contra side of the harm reduction issue is attorney Robert E. Peterson, former Deputy Director of the White House Office of National Drug Control Policy. For Peterson, the notion of “harm reduction” was a carefully chosen expression to replace “drug legalization,” and the agendas are largely the same. There is no evidence, he argues, that harm reduction policies work, and by adopting them we just give up on the addicts. Other social problems have lingered for decades in our society, such as racism, pollution, AIDS, child abuse, and poverty, but we don’t give up on them. We keep fighting these problems, just as we should with the drug problem.
PRO: ROBERT G. NEWMAN
. . . . The following testimony reflects my experience of the past 35 years as a physician deeply involved clinically, academically and administratively in addiction treatment, particularly with methadone and, more recently, buprenorphine maintenance treatments. . . .
Additionally, I would respectfully state in this introduction to my testimony today that “legalization” is totally distinct from “harm reduction.” One can zealously advocate and practice one and reject the other. I personally have argued consistently and emphatically, in countries throughout the world for over 35 years, that every possible means should be pursued to lessen the harm to addicts and the society at large, but I have never advocated legalization (indeed, I do not even know how to define the term). The same distinction between the two concepts is illustrated by MADD, which has forcefully and effectively fought for reducing the terrible consequences of drunk driving, but has—to my knowledge—never proposed that zero-tolerance to alcohol—i.e., prohibition—be reintroduced in America. Again, these are two very distinct issues.
It is my personal view, based on my long-term active involvement in this field, that addiction is a “chronic medical condition,” a rubric applied to a host of illnesses that are treatable, but (as of now) incurable. In the case of addiction, the ability to treat, and treat with great effectiveness, has been proven in countries throughout the world, including our own.
And finally, before proceeding with the substance of my testimony, I would like to answer the question posed by the subtitle of this Hearing: “Is there such a thing as safe drug abuse?” I will not equivocate in responding, and my response is an emphatic “No!” Nor are harm reduction efforts intended to make drug use “safe;” rather, they seek to lessen the extraordinary suffering, death and dissolution of families and communities with which addiction is associated. These goals are consistent with the fundamental canons of medicine that have guided the profession for millennia—and they are known, unequivocally, to be achievable in the case of addiction. Not to pursue them, to ignore the initiatives that have been shown consistently to improve and save lives, would be incomprehensible—and unconscionable.
Basic Concepts—and Misconceptions
In an area as complex as addiction, it is essential to recognize—and dispel—certain fundamental misconceptions. Thus, it is commonly (but erroneously) assumed that those who are addicted to illicit drugs are motivated primarily by hedonism—i.e., the desire to experience euphoria. In fact, however, many users (in my experience, the great majority) are driven not by the wish to “get high,” but by a physical “craving,” or need. This craving may be a result of repeated use of the substance, an inherent (i.e., inherited) predisposition for physical dependence, or—most likely both.
The admittedly vague notion of a physical “craving” may sound like an attempt to put the drug user beyond reproach by suggesting lack of control over his/her behavior, thereby rejecting the assumption of personal responsibility. However, before dismissing the concept of craving as rationalization, consider that it is a painful, recurrent reality to countless smokers—but impossible to describe to those who have not experienced the overwhelming compulsion, at any time of day or night, in any weather, at any cost, to obtain cigarettes when the last pack is empty. It may also strike a more concordant note to consider the situation with regard to another addiction which is common in our society—addiction to alcohol. The very definition of alcoholism is a sobering reminder of the complexity of the problem with which we are concerned: “Alcoholism refers to a chronic disease in which the alcoholic craves and consumes ethanol without satiation. ... [It] occurs in all socioeconomic classes and cultural groups. . . . [and] although environmental conditions influence drinking, many individuals are at risk to develop alcoholism because of genetic factors” (emphasis added). Whatever constellation of etiological factors is at play, it seems unlikely that alcoholics drink in order to pursue feelings expressed in positive terms such as “euphoria” or “contentment.” Surely, no one who has seen an inebriate, unable to control voice, gait, judgment or excretory function, could imagine for a moment that these are the consequences of drinking sought by the alcoholic.
Related to the misconception that addicts are driven by hedonism is the widespread conviction that they lack motivation for treatment and can only be engaged under legal duress (i.e., under the threat of incarceration). Repeatedly over the past three and a half decades, in countries throughout the world, the motivation of addicts to seek and accept treatment on a voluntary basis has been demonstrated. Thus, in the early 1970’s in New York City, some 50,000 opiate-dependent individuals sought and received treatment in the various drug-free and chemotherapeutic modalities that were made available over a period of just a few years. In Hong Kong shortly thereafter, a network of over 20 methadone-dispensing clinics was established and from one year to the next almost 10,000 patients were admitted. In Australia in the late 1980’s, and in Germany and France in the 1990’s, many tens of thousands of heroin addicts entered treatment once it became available.
Nor is it true that addicts don’t care about their health, and that of others with whom they have contact. Even among addicts who reject treatment and/or for whom treatment is not available, harm reduction initiatives are very widely utilized. This applies to bleach, condoms, needle and syringe exchange services, safer injection facilities, HIV testing and counseling, etc. Whatever the arguments might be for withholding such harm reduction services, they definitely do not include either lack of acceptance by the target population, or ineffectiveness in lowering morbidity and mortality, and slowing the spread of the human immunodeficiency virus.
Effectiveness: Compared to What?
A major hurdle in gaining endorsement of harm reduction services (including treatment) for addicts is the insistence on outcomes that are unrealistic and unreasonable. Once again, alcoholism is a relevant and revealing study in contrasts. Alcoholics Anonymous (AA) has for many decades been acclaimed throughout the world, and its twelve-step program is highly respected as a way to help those afflicted stop—or at least lessen—their consumption of alcohol. A popular slogan proclaims that “alcoholism is a treatable disease.” It is important to understand the disparity between near-universal acceptance of this underpinning of AA, and the equally widespread rejection of harm reduction and therapeutic approaches to other drug dependencies.
The reason for the diametrically different views would appear to rest in the disparate expectations regarding outcomes associated with the care afforded the respective conditions. In the case of alcoholism, the standard used to measure effectiveness, as expressed so succinctly and eloquently by AA, is “one day at a time.” It is acknowledged that today’s “success” in achieving sobriety may well be followed by tomorrow’s relapse; however, when relapse occurs (and more often than not it does), it does not denigrate in the slightest the value of the help that has been provided, nor lessen the zeal of service providers in encouraging drinkers to return to AA or another program of their choice. Furthermore, and equally critical, is the uncompromising conviction of AA devotees that the alcoholic can never, ever, be cured.
This orientation to alcoholism, of course, mirrors precisely that which governs the treatment of the great majority of other medical conditions, both those that are primarily physical (diabetes, epilepsy, hypertension, arthritis, etc.), and those commonly labeled “mental” (e.g., schizophrenia and depression). In all these examples it is recognized, expected and accepted that the disease can be treated, often with great efficacy, even though cure is unattainable. The ever-present, generally life-long, possibility of recurrence and even progression of signs and symptoms is simply a frustrating reality and a therapeutic challenge, and not justification for nihilistic abandonment of those afflicted. “Cure” is not the aim in the management of any of these innumerable medical conditions, and it most certainly is not demanded as a sine qua non of “effectiveness.” And yet, the pragmatism, realism and common sense evident with respect to alcohol dependence and other chronic medical conditions are inexplicably lacking when the dependence involves substances that have been defined by legislative fiat as “illegal”.
The fact is that addiction—whether to alcohol, opiates or any other substance—is indeed a chronic medical condition like any other, and its treatment must be guided by similar objectives and parameters of effectiveness. Sadly, this is rarely the case. A striking illustration is “substitution treatment” (methadone in particular), whose extraordinary, worldwide success still tends to be dismissed with the comment, “Yes, but how many can be ‘cured’?” In essence, the utility of methadone is commonly measured by what happens after it is discontinued. Such an orientation would be unthinkable if applied to anti-hypertensive or anti-epileptic agents; or to insulin for the diabetic; or Levodopa—”the single most effective agent in the treatment of Parkinson’s disease”; or anti-inflammatory medications prescribed for chronic arthritis; etc. etc. ad infinitum.
With regard to other forms of “harm reduction”—e.g., needle exchange—criticism also focuses on the undeniable limits of success; they do not eliminate drug addiction or its consequences, but they certainly do reduce—markedly—its terrible consequences. Their goal is to lessen risks associated with injection, and the extent to which this goal is achieved is a true blessing for the addicted and for the entire community.
In seeking to understand the unprecedented tendency to make “the best” the enemy of “the good” when it comes to assessing responses to addiction, it is easier to exclude explanations that seem, superficially, to bring logic to an otherwise incomprehensible deviation from the norm but on closer inspection do not hold water. Specifically, the explanation can not lie in the fact that addiction is a self-inflicted condition, since this is equally true of a host of other diseases to which physicians and the public at large respond supportively, with measures clearly acknowledged to be aimed at reducing rather than eliminating harm. To the extent the heroin addict is to be blamed for his/her addiction, the same criticism would have to be leveled at the alcoholic; and yet, those who drink to excess, whether from need or desire, usually elicit more sympathy than approbation. Furthermore, it is not only the alcoholic who escapes the contempt and hostility of society for “culpability” in causing the disease. The majority of insulin-dependent adult-onset diabetics could live healthy and medication-free lives if they controlled their diet, exercised, stopped drinking, reduced stress, etc. The same constellation of commonsense behaviors would eliminate (often without reliance on medication) signs and symptoms of hypertension and various cardiological conditions. And then, of course, there is the chronic smoker—who generally does not face the hostility of the medical community, nor encounter barriers to treatment of emphysema, heart disease, cancer or the many other sequelae of nicotine addiction; the smoker is also not reviled or ridiculed because she smokes brands with lower nicotine content, or takes “replacement nicotine” in the form of gum or skin patches, for the express purpose of harm reduction.
In fact, “harm reduction,” which has evoked so much controversy and outright damnation in the area of addiction, applies to—and governs—the approach to virtually all medical conditions that challenge physicians and society at large. Only very rarely is there a realistic hope of eliminating harm, or the conditions that cause it. The brutal truth is that in the last analysis, the alternative to harm reduction is abandonment—a policy that is not only inhumane but also antithetical to the interests of the entire society.
The Documented Impact of Harm Reduction: Personal Experience Leading To Personal Conviction
I have been privileged to work in many different settings, and observe both the favorable outcome of a strong commitment to harm reduction, and the terrible consequences when harm reduction is rejected by Government decision makers. The massive increase in addiction treatment capacity in New York City in the early 1970’s has been mentioned above. The result: a drastic reduction in crime, hepatitis and narcotic-related overdoses. Similarly in Hong Kong in the mid-1970’s; there the immediate benefits (e.g., a 70% drop in drug-related arrests!), have been sustained and are today given credit for the fact that there is virtually no intravenous drug use related HIV-AIDS in that city (Hong Kong has publicized for 30 years the message: If you or a loved one have a problem with heroin addiction, immediate treatment is available). At the other extreme, sadly, we have the Russian Federation, which has rejected harm reduction from the outset and affords its estimated four million (!) addicts essentially no treatment options; the result: a massive epidemic of HIV-AIDS, tuberculosis and incarcerations in numbers exceeded only by America! America is in the middle of the spectrum: we’ve shown what can be accomplished in the early years of the decade of the 70s, but then expansion ceased and the availability of treatment actually dropped. Needle exchange and safer injection sites exist, but with no Federal support or endorsement. Some 80% of all intravenous heroin addicts have no access to treatment. And not surprisingly, our overwhelming focus on the criminal justice system to deal with the problem has caused more Americans to be behind bars than any other nation’s population, and drug addiction remains the number one vector for the spreads of HIV-AIDS.
What goals should govern the response to addiction? The same as apply to any other chronic medical condition, for the simple reason that addiction is a chronic medical condition. From the standpoint of society as a whole, denial of harm reduction services is not only inhumane, but suicidal. We know unequivocally that harm due to drug addiction can be reduced, and with it crime, health problems, suffering and death—and also the burdens in financial and human terms, and in quality of life, for the entire society. We have an opportunity; the opportunity in turn represents a responsibility and obligation. Not to pursue it would be a very grave, unforgivable injustice to all Americans. . . .
CONTRA: ROBERT E. PETERSON
Perspective is Important
Working with youth and drug prevention in our own nation and others, especially in South America, the very question posed by this hearing, “Is there a such thing as safe drug abuse?” underlies the confusion and mixed messages that concepts such as harm reduction promote.
A lady from Peru who runs a tremendous program for street children and orphans said that she explained to the youngsters that she was leaving to attend a conference on how to counter the drug legalization movement. The children asked her what she meant, and when she explained, a young child asked, “You mean there really are people who want to make dangerous drugs available and legal,” the child concluded: “then the world really has gone crazy hasn’t it?
I will admit my bias right off. I have six children and I work with youth worldwide. I coach girl’s basketball. The lens through which I view drug policy puts kids first. I once heard that in a perfect libertarian world, there are no children. Children mean that we are our brothers’ keeper and that we have to sacrifice some of our own “rights” in the interest of those more vulnerable. I believe that the chief criteria for any drug policy should be what impact the policy will have upon youth and families.
What is the “drug problem?”
It is important that we all acknowledge our world view. One’s definition of the “drug problem” depends on one’s perspective. For the pre-born and for infants, parental drug use is the issue. Pre-natal damage, born addiction, child abuse and neglect are all caused by drug abuse. During the crack epidemic in Philadelphia it was estimated that the drug was involved in 80% of child abuse cases and in half of all child abuse fatalities. Less than 3% of the population used the drug regularly.
For younger children, parental drug use is also the issue. Neglect, abuse, and accidents are all caused by drug use. Whether the drugs come to parents through street dealers or government run drug maintenance clinics makes no difference to the young. Intoxicated and doped parents do not make for good caretakers.
For teens the number one cause of death is accidents. Once again drug use, including alcohol, plays a strong role. Those who say cannabis never killed, ignore the number one killer of youth—accidents. A Maryland study of emergency trauma injuries showed as many marijuana positive as alcohol positive and the use of both drugs together was highly evident. A study of national truck driver fatal accidents provided similar findings.
For young adults drug use is the main threat that they face. Date rape, violence, accidents, and suicide are all highly correlated with drug use. Ask any group of young ladies if they have ever been harassed by an intoxicated male and see what response you receive. Drug users impact non-users in many negative ways.
For non-drug using parents, drug use is also the primary problem. Parents fear for their children and most desire that their youth avoid drugs and drug intoxicated users.
For all of these groups, drug use is the drug problem. The chemical make up of drugs and the effect of drugs on the brain do not change. It does not change if drug use is maintained by the government, health workers or street drug dealers. The late Dr. Robert Gilkeson used to say, “You cannot vote for or against the chemical properties of a molecule.”
What can change is the amount, acceptance, and the ease of drug use and the identity of who is to be held responsible for the damage. The provider of drugs is an accessory to the risk, death, and damages caused by drug use. No child wants a stoned parent.
The Harm Reduction Origin
Did those working with children and youth develop the harm reduction concept? Obviously not. Let us consider the origins and impact of modern “harm reduction.”
Harm reduction is not a new concept, although the terminology was carefully chosen as a marketing ploy. On audio tape, drug legalization groups held entire conference sessions to decide on a term to promote their cause in the 1980’s and early 1990’s. Leaders clearly stated that they need a term to replace the “L” word. The term “harm reduction” was, to my knowledge, first selected and promoted in 1987 by a group of drug lawyers meeting in Great Britain sponsored by the drug legalization group—the Drug Policy Foundation. This group was later merged into the George Soros backed Drug Policy Alliance. The term “Harm reduction” ran a close second with the term “harm minimization” to avoid the “L” word: “legalization.”
Those tied in with legalization groups who take credit for the harm reduction term include Peter McDermott who wrote: “as a member of the Liverpool cabal who hijacked the term Harm Reduction and used it aggressively to advocate change during the 1980’s, I am able to say what we meant when we used the term . . . . Harm reduction implied a break with the old unworkable dogmas—the philosophy that placed a premium on seeking to obtain abstinence.” He then goes on to discuss the need for a legal supply of clean drugs and injection equipment.
The most important criteria for measuring drug policy of those who developed the concept of harm reduction and drug maintenance was what impact drug policy will have on the right that they, and other consenting adults, have to use drugs. Timothy Leary, the LSD guru of the sixties who was eulogized by many leaders of the harm reduction movement, wanted a constitutional amendment that read “Congress shall not infringe upon the right to alter one’s consciousness.”
The founder of the oldest marijuana smokers’ lobby, the National Organization to Reform Marijuana Laws (NORML) originally wanted legal cocaine and pot, with no age limits, according to a Playboy interview. At least this group admitted it was a lobby for marijuana users.
To civil libertarians and some drug users the drug issue is centered upon the “rights” that they and other individuals have to use drugs. The leaders on the issue knew that their right to use drugs issue would not sell with the public and appear somewhat selfish. They needed to promote it as being in the interests of others. Smartly, they avoided the issue of children and youth.
The “Black Blessing”
Ethan Nadelmann, the chief architect behind the drug legalization and harm reduction and drug “reform” movement backed by George Soros, identified AIDS as a “black blessing.” The AIDS issue could be used to promote the legalizers’ agenda and disguise their self interest as compassion for others.
Why do I say this? First of all, the Drug Policy Foundation and NORML audio taped many of their conferences and I have heard the tapes. It is Mr. Nadelmann who used the term “black blessing” and the legalization strategy was widely discussed.
NORML founder Keith Stroup called medical marijuana a “red herring” to get the drug legal. Others talked about medical marijuana and needle exchanges as steps to their true goal of drug legalization. Why is every major international harm reduction lobby supported by those who seek wider drug liberalization and acceptance? For example, the Harm Reduction Coalition had former NORML President Kevin Zeese and Soros funded advocate Marsha Rosenbaum on the board.
There is a proverb “where a man’s treasure is, there his heart lies.” The major funders and supporters of harm reduction and drug legalization have no history promoting or funding health care, medicinal research, and or treatment for AIDS or drug addiction, other than supporting needle exchanges, drug injection sites, drug maintenance, and marijuana distribution. If compassion for AIDS was really the issue, why isn’t their funding going into providing proven medicines and research for new drugs? If care for addicts was the issue, why do these groups not put funding into effective drug treatment? Why do the top treatment providers disagree with their approach?
One thing is certain; the interests of youth and children were not at the core of the harm reduction philosophy.
This does not mean that everyone who now promotes harm reduction is a closet legalizer. Although nearly all of the major international lobby groups promoting harm reduction and needle exchange are funded by George Soras and legalization proponents, many in the health field, and in politics, have been taught that this is a positive public health concept. Some are not aware of these origins and support it because they are compassionate and care.
Making Drug Peace
Harm reduction is based upon two basic presumptions. The first is that the drug problem cannot be solved so we must accommodate and accept drug use; minimize the costs of use, and learn to live with drug use. As the legalizers put it, we must “make drug peace.”
This sounds logical given the persistence of the problem over the past 40 years. But what about racism, hate crimes, pollution, AIDS, violence, child and spouse abuse, sex abuse, poverty, and ignorance? These problems persisted for far more than 40 years and we do not give up and accommodate them. Drug use among youth bas been cut in half in the U.S. over the past 25 years. Has as much progress been made with these other social problems?
Next, what about the children? If we accept and accommodate drug use for some children, whose children will they be? If we give up on some addicts and maintain their drug slavery, who will the parents and children of those addicts be? Can we give up when there is no place to retreat to?
Third, history demonstrates that drug problems can be solved. The U.S. faced record drug addiction and use rates when marijuana, cocaine, and opiates were legal in the early 1900’s. Medical distribution (a form of harm reduction now being promoted) of these drugs failed to curb the epidemic. Instead of harm reduction and drug acceptance, drugs were outlawed in 1914. Public education, prevention aimed at youth, and treatment were implemented and trom 1914 to 1940 addiction dropped from 250,000 to 50,000 and crime plummeted. By 1960 drug use was nearly non-existent. Consider other nations success.
Sweden: Amphetamine epidemic in the late 1970’s
Improvement: Student drug use cut in half by 1987
Successful Policy: tougher laws, mandated treatment, drug testing, and public education.
Japan: Amphetamine surge after WW II and a heroin problem in the 1960’s
Improvement: Drug use and addiction cut dramatically
Successful Policy: strong enforcement, rehabilitation, and public non-acceptance of drugs.
China: Major national opium addiction problem
Improvement: Opium use and addiction cut to negligible levels
Successful Policy: public education, rehabilitation, and strict law enforcement.
United States II: Drug use rise to world record levels 1965-1979; marijuana epidemic followed by cocaine epidemic and crime rise; heroin problem in 1970’s;
Improvement: Youth drug use cut in half since 1979; addiction rate growth halted; steady long term crime drop.
Successful Policy: Prevention and education; treatment; drug testing; enforcement
Is Drug Use, Drug Abuse?
Second, harm reduction presumes that drug use is not always drug abuse and that drug use is not the primary cause of drug related harm. This argument generally is promoted from the perspective of compassion for the drug user and addict.
Is drug use, drug abuse? The United Nations defines illegal drug use as drug abuse. The clinical rationalization for this is that illegal drugs are nearly always used for the purpose of intoxication, unlike tobacco and alcohol. When alcohol is always used to get high or drunk, treatment experts identify the user as an abuser. Marijuana, cocaine, heroin, and other drugs are used to get stoned. Use is abuse. Those who use a substance to get stoned or drunk are more likely to develop addiction and other problems.
Is Drug Use the Problem?
Does drug use cause most drug related harm? Intoxication impairs human reason and physical coordination and ability. Intoxicated persons are a risk to themselves and to others. Drug use is the cause of most drug user harm. The ability and responsibility to engage in safe sexual practices, to decide on whether to share needles or to commit crime, to practice good hygiene and nutrition, to ensure public and personal safety, and to provide good child care are all impaired by drug use.
In Michigan a young baby died ingesting the mother’s take home weekend methadone dose, a harm reduction concept. The harm reductionist promotes this as a means to reduce the harm to addict’s going out to seek a weekend fix. The baby’s interest was not an issue. Mothers high on methadone are not responsible caretakers. The government provided the weekend dose. Who is responsible for the baby’s death?
There is no safe illegal drug use. Drug use intoxicates and intoxication impairs reason and increases the risk and/or harm to self and others. Many needles never find their way back to exchanges and there are documented cases of children being pricked by needles left on the street and in parks. Responsible behavior and drug intoxication have an inverse relationship.
Studies show that most HIV among drug users is contracted through unsafe sex, not unclean needles. Drug use is highly correlated with unsafe sex practices, violence, and suicide. Overdose deaths also are caused by the effects of drugs, not the source of the needle used. Young addicts have an 8 fold likelihood of an early death related to drug use, not needle source.
Drug addiction is a form of slavery regardless of where the needle came from. Drug addicts lose will and impair their reason, the very properties that distinguish human dignity and freedom. To maintain drug addiction is to maintain slavery. The very chemistry of the brain is altered by addiction. For the addict, drug use is the problem, indeed drug use is their life obsession.
If your son or daughter was out of control and slowly poisoning their mind, body, and soul should the government response be to provide a free method to ingest the poison?
What is in the interest of children with drug addicted parents?
True compassion to drug addicts and their families is to provide aggressive outreach for treatment and rehabilitation eventually leading to a life free of drug use and addiction. It is unethical to accept addiction, provide needles, and fail to promote treatment and rehabilitation. The criminal justice system is often the number one source of drug treatment referrals. Legalization will cost addicts their lives. Forced treatment has saved lives as President Clinton’s brother testifies. Children want their parents back.
The best studies used to support needle exchange impact combine drug treatment, outreach, and counsel with the exchange program. Treatment and outreach without needle give outs have been equally effective. There is sparse evidence that the needles component is needed or effective. There is ample evidence that treatment and rehabilitation can be effective without needle exchange.
Does Harm Reduction Benefit the User?
Even if the focus is on the interests of drug addicts and not children, does harm reduction benefit the user? There is no convincing evidence that HIV or hepatitis is reduced by needle exchange and conflicting evidence that HIV and hepatitis and overdose deaths may be increased by such programs. The Swiss needle park experiment, with open drug use and needle exchange resulted in Europe’s highest HIV rates and record crime. They park was shut down. I will leave it to the references cited herein to demonstrate the failure of needle exchanges to reduce drug harms.
Needle exchange and drug maintenance sends a clear message to addicts that their drug slavery is acceptable and supported by society. Implicit is the message that society gives up on them and that they will never be free. The message is “here, take your drugs where it will reduce the harm caused to the rest of us and die addicted.”
Does Harm Reduction Cause Harm?
The message to youth is even worse. Drugs are a legitimate choice supported by government and society. After all, would the government and responsible adults legitimize drugs and provide the instruments and substances of addiction if it was wrong?
The history of harm reduction demonstrates that the policy hurts youth, the public, and drug addicts and users.
The U.S. tried medical distribution of cannabis, cocaine, and opiates in the early 1900’s and addiction and abuse was not abated. Laws were passed making the drugs illegal and treatment and education efforts were implemented to reverse the epidemic.
In 1979, harm reduction was brought to schools and “responsible” drug use was taught. Thirteen states decriminalized marijuana with White House support. Law enforcement was minimal zed. The result was world record drug use rates among youth with one in ten high school seniors stoned on marijuana every day of the week.
Stricter drug enforcement, prevention, and treatment led to a dramatic drop in youth drug use (cut in half) and halting the addiction growth rate. Youth drug use rates continue to drop in the U.S. as they are rising in Europe and Canada where harm reduction policies are replacing drug prevention.
In Europe, nations implementing harm reduction have worse drug problems than those rejecting such policies. Spain, in 1983 went from having some of the toughest laws to some of the weakest. A spurt in drug use and crime continues to this day. Spain promotes harm reduction and now has the highest cocaine use rates in Europe.
The Netherlands continues as a drug and crime haven for Europe. Drug use among youth climbed as it dropped in the U.S. Drug cafes rose ten fold in a decade. Drug violators make up half the prison population. The junkies union sued to defeat a proposal to tax drugs so no drug revenues are raised and addicts are supported by state welfare. The Dutch tried licensed heroin distribution but scrapped it after a spurt in crime and overdose deaths.
Switzerland and Great Britain also have liberalized drug policy and opted for harm reduction over prevention. Drug use rates among youth and adults are very high in these nations and increasing. Great Britain tried heroin maintenance years ago, and it resulted in a large black market in the substance. The policy was reversed.
Italy rescinded soft heroin laws due to record addiction rates and overdose deaths and has rejected harm reduction. The drug problem is lower there than in other European nations.
Sweden drug use rates are generally low in Europe and harm reduction is rejected there.
Harm Reduction-Impact on Drug Prevention
The major threat to youth of harm reduction is its impact on drug prevention. Harm reduction and drug prevention can never be partners. The United Nations drug term definitions clearly states that harm reduction is not prevention. Harm reduction rejects preventing drug use as a primary goal of drug policy and rejects drug abstinence as the primary goal of drug treatment.
Nations that adopt harm reduction as their centerpiece, reject drug prevention as their primary goal even thought the United Nations agreed that drug prevention is an “indispensable pillar” for drug policy. Preventing all drug harms is not the same as reducing drug harms for some. Only prevention can eliminate drug harms.
For 30 years there has been a direct and drug specific inverse correlation between youth drug use and youth perception of drug harm and risk. Every year that perception of rug harm dropped, drug use increased. Harm reduction downplays the risks of drug use, reduces perceived risk of harm, and claims that drug use can be made “safe.” In Canada “safe” crack use kits are being demanded by addicts.
Harm reduction organizations promote a return to the failed U.S. policy of the late 1970’s that taught “responsible” drug use. Marsha Rosenbaum, a Soros funded West Coast reformer if promoting teaching harm reduction lessons to youth. A leading school book by Ruth Engs in the 1970’s, entitled “Responsible Drug and Alcohol Use,” told youth to clean out seeds from marijuana so they do not pop and to use a roach clip to avoid burning fingers. Drug use rates were never higher than in 1978-79 when this education peaked.
Pat O’Hare, another member of the original “Liverpool cabal” who “hijacked” the term harm reduction called 12 step drug programs complete crap and asked: “if kids can’t have fun with drugs when they’re kids, when can they have fun with them?” Another leader, Julian Cohen states that primary prevention ignores the fun, the pleasure, and the benefits of drug use . . . . Drug use is fun for young people and drug use brings benefits to them.”
It is clear that preventing drug use and teaching how to use drugs are not compatible nor complimentary. No nation has ever lowered drug use and drug problems through a harm reduction approach.
From the Mouth of Babes?
Let me return to the subcommittee’s original query. Is there a such thing as safe drug use? I believe the child in Peru is right, only if the world has really gone crazy.
Human dignity and liberty is based upon human free will and reason. We cannot act, think, and choose fully as persons when our capacities are impaired. The user and non-user are both endangered by impaired persons. Children and youth often suffer the most dire consequences.
The ability to interact, communicate, and relate to loved ones and others also is impaired. Drug use breaks down the ability to live in community and family. Drugs impair the ability to make safe decisions on child care, driving, sexual and other behavior, and private and public safety.
Accepting drug use and addiction is an accommodation of chemical slavery and impairment. It is not compassion to enable drug use. The Vatican noted in its statement against drug injection rooms and harm reduction that “drug dependence is against life itself.”
The young people that I have had the privilege of meeting in the U.S., Brazil, Chile, Argentina, and Uruguay are optimistic and caring. They are reaching out to other youth with a positive message of a drug-free life. Harm reduction undermines their work and their hopes.
Harm reduction is a philosophy of despair communicating a lack of hope for the addict, their loved ones, and society. It is a message of surrender and accommodation.
Prevention is a positive message of hope that is not just against drugs, but for life. History, science, and human experience gives every reason to continue hoping and to continue fighting.
Source: Robert G. Newman and Robert E. Peterson, U.S. House, Government Reform subcommittee hearing, Harm Reduction or Harm Maintenance: Is There such a Thing as Safe Drug Abuse? (2005). Notes have been removed (see www.gpoaccess.gov/chearings for complete text).
Questions for Review
1. According to Newman, what are the basic misconceptions about drug addicts?
2. According to Newman, what should effectiveness in harm reduction be compared to?
3. According to Peterson, from what perspectives should we view the drug problem?
4. According to Peterson, what are some lessons that we can learn from history about solving the drug problem?
5. According to Peterson, why can’t harm reduction and drug prevention programs ever be partners?
Questions for Analysis
1. Newman describes the sympathy that we have for people suffering from alcohol and tobacco addictions, as well as for people with essentially incurable diseases such as diabetes, epilepsy, and schizophrenia. We provide treatment programs for these people without maligning them, and we should do the same for drug addicts. Are there essential differences with drug addiction that undermine its comparison to these other health-related problems?
2. Peterson argues that “harm reduction” is just a disguised form of drug legalization. How might Newman respond to this accusation?
3. Peterson attacks one drug legalization advocate for referring to AIDS as a “black blessing”. Explain the point behind the drug advocate’s comment, and discuss whether his point is legitimate.
4. Peterson argues that harm reduction and drug prevention can never be partners. Discuss whether or not he is correct.
5. The philosopher John Stuart Mill defended the drinker’s freedom to become drunk, even if it becomes harmful to the drinker, as long as others are not also harmed. Who would Mill side with in the harm reduction debate, Newman or Peterson? Explain.