Drugs and the Law
Erich Goode, Professor of Sociology at SUNY Stony Brook
From: Drugs in American Society, Chapter 7
©1972 Alfred A. Knopf, Inc. ISBN 0-394-31323-2
In this and the next chapter I shall argue that: (1) Drug laws are passed and enforced independently of their stated goals of deterrence, rehabilitation, and public safety. I submit that instead they are passed and enforced for ideological and moral reasons, not "rational" ones. (2) The drug laws are ineffective. The deterrent effect, which was at best only partial in the past, is swiftly breaking down and will probably prove even less effective in the future. Rehabilitation has always been a complete failure—the prison system has served to perpetuate drug use, not to cure the users. Public safety has actually suffered because of the drug laws. (3) The drug laws probably do more total damage to society—in terms of agreed-upon criteria of harm—than they prevent. Ironically and tragically, it is the law and its enforcement that is principally responsible for the size of the addict population, for the recent increase in addiction, and for a majority of the most harmful features of drug use and the drug scene. Finally, I submit that to the extent that a shift is coming about in law enforcement vis-à-vis drugs, this represents an ideological shift far more than a realization that the drug laws have not "worked."
If a large cross section of the public were asked to give the reasons underlying the existence and enforcement of the drug laws, by far the most common response would be that the populace must be protected from the harm that drugs do to individual users, as well as to society in general. A deterrence-and-containment policy is seen as motivating the legal mechanism. Even the well-informed layman and the expert hold to this view:
Most laws are instituted to protect society, or to protect the individual. Laws concerning drugs fit into this legal framework. For example, narcotics are outlawed because their continued use can cause physical and mental debilitation of the individual and lead to crime against society. Obviously, society must have laws governing the distribution and use of dangerous drugs... (Uhr and Uhr 1970, p. 112).
However, the closer we examine the laws, and drug use, the less tenable this position becomes. Presumably, the more dangerous a drug is (or potentially dangerous, if significant numbers of individuals were to use it), the more vigorous will be the legal attempts mobilized to prevent its use; a drug whose potential for damage is low would presumably be far less likely to fall within the orbit of criminal law. In actual fact, there is almost no relationship whatsoever between harm, potential or actual, and the existence of drug laws and efforts at law enforcement.
There are, of course, many different ways of measuring the "damage" that a drug does or might do. Joel Fort has elaborated a scheme of dimensions of "hardness," which takes into account mainly brain and organic damage, insanity, addiction, violence, accidents—particularly vehicular—and obviously death (Fort 1968; Fort 1969, pp.98-99). These are "nonpolitical" dimensions, since nearly everyone would agree that they do constitute damage or harm; on this point at least there should be no controversy. In terms of Fort's scheme, the first category of hardness would include the most "dangerous" drugs currently in use: alcohol, barbiturates, amphetamines, nicotine (in cigarettes), and probably cocaine. Any individual who is a heavy, chronic, long-term user of any one of these drugs stands an extremely high chance of damaging his body and mind. In addition, all the drugs in the group except for cocaine are very commonly used; thus theactual rates of damage are high. The second category of hardness would include drugs whose damage potential is moderate, relative to the first five agents, given frequent, long-term use:- all the narcotics (because of the possibility of overdosing and the very real specter of addiction, as well as the pangs of withdrawal) and the hallucinogens (because of the possibility, however small, of temporary psychosis). The third category would include drugs that, given current medical and pharmacological knowledge, appear to cause fairly infrequent and relatively superficial damage: caffeine, aspirin, and marijuana.This is not to say that these drugs are completely "safe"—no drug, no chemical agent of any kind, is completely safe, and that includes water. There are as many as a thousand aspirin poisonings each year, mainly of young children who swallow massive doses, as well as some resulting from suicide attempts. About 0.2 percent of the population develops idiosyncratic pathological responses to aspirin, such as skin rashes. (A physician told me of a patient whose skin fell off in sheets after ingesting aspirin.) And the knowledge of how aspirin works pharmacologically is, as with marijuana, more or less lacking (Fort 1969, pp.25, 41, 141). However, aspirin is typically used with no damage whatsoever to the user.
Yet of the five extremely damaging drugs, alcohol and cigarettes are readily available to anyone above a certain age—in any quantity, without restraint; amphetamines and barbiturates are available by prescription (and are very commonly and heavily used by prescription for largely nonmedical or pseudomedical reasons); and cocaine is completely criminalized. Of the moderately dangerous drugs, the narcotics and the hallucinogens, possession of both is a crime, although illegalization efforts are more heavily concentrated on the former than on the latter. Of the relatively harmless drugs, caffeine and aspirin are readily available, and marijuana is completely criminalized. Possession of even a small quantity of marijuana (a quarter of an ounce in some jurisdictions), as well as any sale or transfer—including handing someone a joint that is being passed around a circle of friends—constitutes a felony, punishable by a prison sentence ranging up to life imprisonment. In at least one state—Rhode Island—the minimum penalty for the sale of marijuana to a minor is thirty years' imprisonment; the maximum is life. The severity of this penalty is surpassed only by that for first-degree murder and treason; it is a harsher penalty than that for rape, second-degree murder, arson, and armed robbery. (A separate but related question is whether or not these penalties are carried out. But the symbolic and attempted deterrent functions of the severity of the law cannot be ignored.) The Rhode Island penalties are not leftovers from an earlier, less enlightened age; rather they are the product of a revision in the penal codes instituted in 1962. Now, if we wish to claim that selling a twenty-year-old college student a couple of joints of marijuana is more damaging to him that murdering him without intent, we may safely argue that the penalties are consistent with damage. But such a contention is ludicrous, and the position is completely untenable.
Thus instead of an intimate and causal connection between damage and the law, what actually exists is an extremely loose, almost nonexistent relationship. Society does not construct laws to protect itself or the user from the damage that a drug will, or could, inflict. Yet most people think that that is why the laws against drug use exist and are enforced. And legislators and law enforcement officers no doubt believe that they create and uphold drug laws because drug use is "dangerous." The "empirical" argument about damage is superimposed on an essentially moral and ideological belief—the assumption that use of certain drugs is wrong, evil, and undesirable, and should be outlawed. But in reality this is a rationalization, a shaky scaffolding—and it has little or nothing to do with the existence of the laws or their enforcement.
The whole relationship between the harmfulness of drugs and drug laws is but one example of the ambiguity of law in general. Some forms of crime outlawed by society and routinely enforced obviously do harm some members of society, along some agreed-upon definition of harm. Murder is one such example. But many forms of criminal behavior—perhaps most forms of criminal behavior—harm no one, not even the perpetrator of the crime. (Unless performing the act itself is declared to be harmful. Homosexuality is one example of a "victimless" crime; but some will claim that homosexuality is itself harmful, and given this premise there is no possibility of arguing with the charge.) Moreover, many forms of behavior that are extremely destructive to society and to many of its individual members are quite legal. The record of damage due to alcohol consumption is probably without equal in the history of drug use, but the restrictions placed on the drinker are fairly liberal—he may destroy himself in private but not in public. Warfare, to choose a nondrug example, is always catastrophic, but most politicians make no attempt to render it illegal—instead they have always made the refusal to destroy human life in combat a criminal act, under the claim that such killing is for the good of everyone involved. Faulty design and manufacture of products certainly cause thousands more deaths each year than, say, sex crimes, yet politicians and the public become incensed over the latter and are comparatively indifferent about the former. Even the toothless consumer protection laws now in effect were enacted only as a result of the efforts of a few vigorous crusaders, and not by any means as a result of public or official acknowledgment of the potential and actual harm presented by dangerous products. In sum, the view that laws are passed and enforced as a result of the "objective" danger presented to society by the prohibited behavior is not only extremely naive but fallacious.
Behind the passage of every drug law in existence is a well-organized and effective lobby that has convinced lawmaking bodies and agents of social control that drug use is in fact a menace to public safety and health. In no instance have medical, pharmacological, psychological, or sociological researchers been asked to prepare a thorough evaluation of the potential or actual dangers of the various drugs so swiftly criminalized. Often, as in the case of the Federal Marihuana Tax Act, the only "evidence" to justify the passage of drug laws has been presented by those who undertook to get the laws enacted in the first place. Howard S. Becker has coined the term "moral entrepreneurs" to describe those highly committed individuals who take it upon themselves to disseminate their views to the public and to make sure that their own version of right and wrong becomes law for all (Becker 1963, pp. 147-163). The moral entrepreneur is an ideological imperialist—it is his position that what he believes must also be right for everyone and that anyone doing what he disapproves of must be punished by the might of the law, by the state, by society as a whole. The existing rules do not satisfy him (or her—some of the most influential moral entrepreneurs in history have been women, such as Carrie Nation, the alcohol prohibitionist)
... because there is some evil which profoundly disturbs him. He feels that nothing can be right in the world until rules are made to correct it. He operates with an absolute ethic; what he sees is truly and totally evil with no qualification. Any means is justified to do away with it. The crusader is fervent and righteous, often self-righteous (Becker 1963, pp. 147-148).
Naturally, all moral entrepreneurs believe that what they want to see passed into law is good for others and not merely a crystallization of their own personal views and prejudices. Thus anti-marijuana crusaders do not see themselves as imposing their ideology and morality on the public. Rather they see themselves as doing good, as helping others, as lifting up the drug user to see the error of his ways, as protecting society from the damage that drug use can do to humanity. (But then, as Camus said, the welfare of humanity is always the alibi of tyrants.)
In short, the passage of laws is basically a nonrational process that represents an ideological, moral, and political victory of some segments of society over others. Laws are sometimes, even often, a reflection of majority sentiment, but this is not a necessary condition for their passage. Public sentiment and outrage is a useful resource for the moral entrepreneur in his battles. (Most of the state laws criminalizing marijuana possession were pushed through without any fanfare whatsoever.) Likewise, expert documentation and testimony may be useful in the battle to get laws passed, but they too are not essential. As noted earlier, a majority of experts doing research on marijuana use favor the decriminalization of the drug (Clark and Funkhouser 1970), and more and more researchers are turning to this view. Of course, it is always possible to hand-pick "experts" in drug research to present views that are already favorable to official opinion. Even when a full range of views from the scientific community is elicited on a given issue, ignoring the views of the majority is a simple matter. The Nixon administration dismissed The Report of the Commission on Obscenity and Pornography—the most thorough and well-documented study ever conducted on the subject—in just such a manner. Likewise, President Nixon stated publicly that whatever the findings and recommendations of the National Commission on Marihuana and Drug Abuse, he would never legalize marijuana. Such commissions are used primarily as rhetorical devices—they are useful insofar as they can shore up some official view; if they cannot serve such purposes, they are buried.
Thus it is utterly nonsensical to claim that because a nation has passed or enforces a certain law outlawing some behavior, the behavior in question must be harmful to the populace. Yet many observers have made just this assertion. Edward Bloomquist, for instance, claims that the Nigerian government's enactment of harsh legislation against cannabis possession demonstrates the drug's harmful effects on the vigor of a developing nation (Bloomquist 1971, pp. 23-24). (The penalties in another developing nation, Iran, are particularly harsh for drug sellers. Dealers are shot on public television, and TV sets are placed in village squares so that everyone can see these important events. But just what this demonstrates with regard to the effects of the drugs in question is not clear.) The classic statement exemplifying this fallacy was written by a South American physician, Pablo Oswaldo Wolff, who observed that, in regard to cannabis: "All civilized countries have included in their protective legislation a prohibition of the use of Cannabis for enjoyment purposes, becausethe social and criminal danger to which it can give rise at any time is of immense gravity" [my emphasis] (Wolff 1949, p. 49). A more contemporary observer, Director of the Essex, New Jersey, County Youth and Economic Rehabilitation Commission, echoes Wolff's sentiment: "Why is it that marijuana is the onlydrug that is outlawed in every civilized country of the world?" (Lordi 1968, p. 163). Three "health" experts make the same observation with regard to drugs in general. The drug laws, they state:
... have been enacted to protect society. Legal controls such as quarantines, isolation, and penalties have always been necessary to stop the spread of various diseases and illnesses. Since the best evidence supports the view that compulsive drug abuse is an indication of an emotional illness in an individual, society is justified in insisting on some type of regulation on the manufacture, distribution, and use of drugs. Such regulation can be viewed as a part of preventative medicine (Jones, Shainberg, and Byer 1969, pp. 69-70).
The bizarre Alice-in-Wonderland quality of this statement becomes pointedly clear when we realize that (1) most users of illegal drugs are not, and never become, "compulsive" drug users, yet they are just as liable to arrest as those who are; (2) the conclusion that because (some) drug users are emotionally sick they should be punished and incarcerated is not only illogical but cruel and treacherous; (3) drug users are subject to penalties regardless of whether they do, will, or can "spread" their drug habits to others—the isolated drug user is still breaking the law; (4) drug laws and law enforcement may not even be effective in dealing with the problems they are designed to solve. The above quotes illustrate that medical analogies are sometimes employed to shore up the edifice of criminal law. And it is on such nonsense that entire legal edifices are often built.
A historical view of social and legal attitudes toward drug addiction can give some perspective on the effectiveness of the drug laws. The social image of the drug addict has turned almost full circle since the second half of the nineteenth century. Addiction to morphine as a result of administration during surgery was common during and after the Civil War, and addiction came to be known as the "soldier's disease," or the "Army disease." Late in the nineteenth century and early in the twentieth many preparations containing addicting substances were available over the counter. Opium and morphine were contained in preparations for headaches, toothaches, menstrual pains, insomnia, nervousness, depression, and just about everything else; they were seen as a kind of panacea for a wide range of ills. Naturally, thousands of people, including many respectable middle class housewives, became addicted as a result. Because of the connection between medical therapy and addiction, the drug addict was viewed as a helpless victim, an unfortunate sick person in need of medical attention (see, for example, Terry and Pellens 1928; Lindesmith 1965, 1968; Duster 1970; Smith 1966). But by the 1920s the public image of the addict had become that of a criminal, a willful degenerate, a hedonistic thrill-seeker in need of imprisonment and stiff punishment. Curiously enough, at the same time the public view of many medical afflictions, such as leprosy, epilepsy, and insanity, moved in the opposite direction; these conditions came to be regarded as strictly medical problems rather than as signs of immorality and depravity (Duster 1970, p. 10). Today this trend has begun to reverse itself; among many physicians as well as some segments of the public, addiction is coming to be viewed as largely a medical problem.
It is, of course, almost completely impossible to estimate with any degree of precision just how many addicts the freely available over-the-counter narcotic preparations called into being. Figures kept at the time are notoriously unreliable, and estimates range from a low of 100,000 to a high of several million. In 1919 the Treasury Department issued a report claiming that there were approximately a million people addicted to narcotics at the turn of the century. Other estimates, based on extrapolations from a number of local surveys, range from slightly less than a quarter of a million (Terry and Pellens 1928) to just under half a million (Kolb and DuMez 1924). Since it is virtually impossible to check the reliability of these estimates, let us accept the in-between figure, half a million, as roughly accurate. In the early 1900s, as opposed to the 1970s, it is clear that (1) addiction was largely a consequence of medical problems, rather than related to a search for euphoria and peer-generated excitement; (2) the middle-aged, rather than the young, were addicts; (3) women, rather than men, were more likely to be addicts; (4) whites were more likely to become addicted than blacks; (5) addicts were drawn from the entire social class spectrum, and probably somewhat more from the middle class, rather than primarily from the bottom of the class structure (this tendency is breaking down today, however); (6) addicts came from the entire rural-urban continuum, rather than predominately from very large cities and their suburbs.
One drug text presents a two-page graph (supplied by the Bureau of Narcotics) showing the number of addicts in the United States from 1900 to the 1960s (Jones, Shainberg, and Byer 1969, pp. 68-69). The peak is reached early in the twentieth century, just before federal legislation was passed, at about 200,000—a not unreasonable figure; this is followed by a sharp drop a few years later, to a low in 1945 of under 20,000 addicts; then a small but significant rise to 1960 is recorded, to approximately 50,000 addicts. Downswings in the chart early in the century follow the enactment of new laws. Really effective reductions, however, did not occur "until the Bureau of Narcotics was established in 1930 to enforce.. . laws and apprehend violators" (Jones, Shainberg, and Byer 1969, p. 67). Many defenders of the existing legal structure viewed the "reduction" in the number of addicts between the inception of the narcotic laws and the end of World War II as evidence that punitive policies were actually an effective deterrent against addiction. In 1948 several physicians employed by the government wrote: "This reduction has been largely due to vigorous enforcement of the Harrison Act and the Federal facilities for the treatment of addicts" (Vogel, Isbell, and Chapman 1948).
The view that laws and their enforcement are effective against drug use and addiction is widespread. What, however, are the facts? A close look at the facts actually demonstrates the opposite point of view—that existing and ongoing drug policies have, from their beginnings to the present, been a contributing factor in worsening the drug problem, that punitive policies and approaches have been an almost unrelieved failure.
In December 1914 Congress passed the Harrison Act, which outlawed the sale of over-the-counter narcotic preparations and placed the addict in the hands of the physician. Whatever the intent of the law, it is clear that most addicts simply continued to receive drugs from their physician, on prescription, instead of directly from their local pharmacist. If a physician construed the administration of morphine to a patient to be within the scope of legitimate medical practice, he had the right, within the law, to maintain that addict on morphine. On the face of it, then, the law did not change anything. It was the Supreme Court that drew a restrictive interpretation of the Harrison Act and that decided what was to constitute "legitimate" medical practice; in a series of decisions from 1919 to 1922 the court declared maintenance of an addict to be outside the scope of medical practice and therefore illegal. However, in 1925, in the famous Linder case, the Supreme Court overturned its earlier decisions, declaring addiction per se not to be a crime and paving the way for the legality of maintenance. The court affirmed the decision in 1962, in Robinson v. California. Thus the present punitive policies are a consequence of decisions made by the Supreme Court between 1919 and 1922, decisions that were superseded and reversed by later rulings A good case could therefore be made for the unconstitutionality of present legal policies.
Because of police harassment of physicians following the passage of the Harrison Act and the wave of arrests of doctors following the Supreme Court's decisions, most physicians became unwilling to shoulder the legal risks attendant upon treating the addict and eventually discontinued administering narcotic drugs. One study estimated that in the two dozen years after the Harrison Act—and primarily after 1919—25,000 physicians were arraigned on narcotics-selling charges, and 3,000 actually served prison sentences (New York Academy of Medicine 1963). Thousands more had their licenses revoked. The authorities could not have encouraged the emergence of an underworld traffic in narcotic drugs better even by design. The arrest of physicians during this period took the following form selling drugs was declared illegal, thus driving most physicians out of the practice of treating addicts; the few who continued to do so, whether for idealistic or mercenary reasons, naturally attracted a sizable clientele—and just as naturally were charged with "trafficking" in narcotics.
Apparently, the dilemma was at least dimly perceived by some officials, since in 1919 and 1920 forty-four ambulatory clinics were opened with a view toward the rehabilitation and eventual cure of addicts. The programs were highly variable in method and effectiveness. In the New York clinic, which received the most attention and publicity, drugs were handed out more or less indiscriminately to anyone who claimed to need drugs; moreover, through various tricks many addicts were able to obtain much more than their share and to sell what they did not use to other addicts. The New York clinic was investigated by the Bureau of Internal Revenue, and a highly critical report was written of its operations. Muckraking journalists attacked the program; several reporters posed as addicts and discovered that they could receive addicting drugs almost upon demand. A public outcry was voiced; campaigns were launched to close the clinics. All but one of the forty-four clinics had been shut down by 1921, and the project was entirely abandoned by 1923. The program was branded a disastrous failure. Actually, the New York clinic, the object of the most vigorous criticism, was the least well run and most clearly unsuccessful. The clinics in New Orleans and Shreveport, Louisiana, appeared to have been successful in their stated goals: (1) relieving the addict's suffering- (2) offsetting the illegal drug trade; (3) curtailing the spread of addiction and (4) reducing the criminal activity of addicts. These efforts, however, received little public attention.
The demise of the public clinics, engineered by prohibitionist officials, was then used by them to galvanize popular sentiment against the strictly medical approach to addiction. The public came to support the view that the addict had to be dealt with punitively, that addiction was a matter for the police and not the physician. Actually, the medical approach was not tried in most clinics; rather simple maintenance, or handing out drugs without any medical treatment whatsoever, was the rule. The more carefully run, medically oriented programs did not convince those in power that a true medical approach could in fact work. Addiction came to be seen as inherently untreatable—and inherently criminal. A shift in enforcement came about at almost the same time as the demise of the public clinics. In 1919, the first year of their operation, there were only 1,000 federal arrests on narcotic charges. In 1921, when all but one of the public clinics had closed, there were 4,000 federal arrests. And by 1925 there were over 10,000 arrests (Lindesmith 1965, p. 143).
Clearly, then, what happened as a result of the Harrison Act was not a diminution of a once large addict population but the appearance of a totally different population altogether. Far from reducing a problem, legislation and enforcement practices on drugs appear to have created a problem out of whole cloth. The federal laws outlawing the sale of narcotics seem to have created three distinct groups from the existing addict population. The first of these groups represents the majority of the middle class addicts, mostly women; when the supply of opium and morphine was discontinued for the nervous, distressed housewife, she eventually turned to the use of barbiturates, under the care of her physician. What the law did for this segment of the population of addicts was to take the over-the-counter narcotics away and replace them with sedatives, by prescription. Exactly the same types of people who used narcotics in 1900 are now using barbiturates—middle-aged, middle-class, white women with various quasi-medical, largely emotional problems that (they feel) can be solved by taking a drug. The laws did absolutely nothing to terminate this class of addicts, who certainly were in the majority in 1900—they simply changed the drug to which people were addicted.
The second group created by the narcotic laws consists of those addicts who discontinued use altogether. But it is likely that this segment comprised the least addicted of the turn-of-the-century addict population. Thus the legislation probably "helped" only those who were most capable of being helped, and who constituted the least troublesome problem anyway. The third segment of the addict population constitutes the present group of "street" addicts. A certain proportion of the earlier addicts refused to discontinue the use of narcotics, and since they did not, or could not, obtain legally available drugs, they became dependent on an illegal supply and thus automatically joined the ranks of the criminal underworld.
It is obvious then, that the first half of the 1920s witnessed the dramatic emergence of a criminal class of addicts—a criminal class that had not existed previously. The link between addiction and crime—the view that the addict was by definition a criminal—was forged. The law itself created a new class of criminals.
Our confidence in this view is strengthened when we examine the role of the sedatives today. It is interesting that the barbiturates began to be used on a more or less widespread basis about the same time that the narcotic over-the-counter drugs became criminalized. Barbital (whose trade name is Veronal) was discovered in 1903, and phenobarbital (or Luminal) in 1912. The current use of the sedatives, including the barbiturates and the "minor" tranquilizers, certainly outstrips the use of over-the-counter narcotic preparations at the turn of the century. Continued administration of doses that are somewhat larger than the moderate doses commonly prescribed will produce addiction, an actual physical dependence in the user, and that daily use of approximately a gram or two will produce a severe dependence, then there may well be a million sedative addicts in the United States today—users who would actually suffer severe withdrawal symptoms if their supply of drugs were discontinued—and the large majority of these addicts are taking their drugs legally, under medical supervision. In short, the sedatives of today have become the functional equivalentof the freely available narcotic drugs of the turn of the century.
What are some consequences of the punitive approach to addiction? It cannot be doubted that the criminalization of narcotics had the immediate short-run impact of reducing the number of addicts in the population. But what about the long-range effects? To justify their policies, and their right to eminent domain in the drug field, the police wish to convince the public that the post-1914 enforcement practices have brought gains to American society. But like many such propagandistic claims, the argument falls apart on careful scrutiny. A wide range of unanticipated and undesired consequences of the police approach to drugs makes us suspect that had more intelligent policies been pursued, many of the most noxious features of addiction would not exist today.
Probably the most important contribution that law enforcement has made to the problem of addiction is the creation of an addict subculture. It is important to emphasize that prior to 1914 no addict subculture of any significance existed in the United States, and there was no inevitable link between narcotic use and crime. There was a small population of opium smokers, consisting primarily of Chinese immigrants and of bohemian, literary, underworld, and demimonde figures who learned the habit from the Chinese. Addicts did not display any special cohesion or loyalty as a group; they possessed no lore concerned with the acquisition and administration of drugs, no ideology elaborating the qualities of various drug highs, no justification for using drugs, no status ranking unique to the world of addiction, no rejection of the nonaddict world. During the formative 1920s these elements of an addict subculture began to emerge. Alfred Lindesmith has said that by 1935, when he was studying addicts in Chicago, "there already was a subculture without doubt" (Alfred Lindesmith, 1971: personal communication). It was the criminalization of addiction that created addicts as a special and distinctive group, and it is the subcultural aspect of addicts that gives them their recruiting power. Up until the past few years external factors have played a more important role in curtailing the spread of addiction than anything the police have done. Alcohol prohibition (1920-1933) focused the activities of organized crime on the distribution of liquor rather than narcotics—in fact, got organized crime started on a big-business scale. The depression of the 1930s also had a delaying effect on the growth of the addict subculture. And the disruption of drug supply lines during World War II slowed down to a considerable degree the recruitment of new addicts. By the end of the war some experts thought that addiction to narcotics had ceased to be a problem of any magnitude; at that time there were only 20,000 known narcotic addicts in the United States. But starting in 1945, and especially in the late 1960s, addiction began to rise dramatically. It is entirely reasonable to view this rise as largely due to the recruitment powers of a gradually developing subculture of intensely committed addicts. And it was through the efforts of the police and the courts that this subculture came into being in the first place.
A second major consequence of the punitive police approach to drugs was the rise in the criminal activity of addicts. The view that addicts are "inherently" criminal is totally without foundation. However, it is clear that addiction and crime are closely related. Almost every addict, aside from the wealthy and those in the medical profession, is also a criminal, engaged in some illegal moneymaking venture. A "slave" (or a legitimate conventional job) does not pay enough to support a heroin habit, but many "hustles" do. "Boosting" (stealing from a store) and burglary are probably the most common forms of theft for addicts, although armed robbery, "snatch and grab" street tactics, and automobile thefts are also common. Most junkies have sold heroin, but they generally do so only on a small scale, since dealing in large quantities requires a greater cash outlay than addicts can scrape together at one time. A number of other hustles, such as pimping and confidence games, are not uncommon, but they require more skill and ingenuity than most people, whether addicts or not, possess. In addition, many successful criminal ventures involving large sums of money require precision and reliability, traits that are alien to the addict because of his overwhelming commitment to his habit. So notoriously unreliable are addicts that most criminal gangs will disassociate themselves from a member of their ranks who is discovered to be an addict. Most female addicts prostitute themselves, although they will also "boost."
There is no question, then, that there is an intimate relationship between addiction and crime in the United States. (This is not true in most other nations, and it was not true in this country before 1914.) But it is also important to ask the reasons for the addict's criminal pattern of life. The police, in an effort to justify the existing punitive approach to drug prevention, claim that the typical addict's criminal career began before his involvement with heroin. A former director of the Bureau of Narcotics and Dangerous Drugs has written: "It is generally the criminal who turns to addiction rather than the addict who turns to crime" (Giordano 1966). Supposedly the conclusion to be drawn from this fact is that addiction is a criminal matter, a problem for the police to handle, and not a medical matter at all: "Any intelligent layman who becomes convinced of this fact... will see no solution to a crime problem by providing free drugs to criminal drug addicts. How can they be expected to live useful, productive lives on narcotics when their lives were enmeshed in crime before they became addicted?" (Giordano 1966). The problem with this position is that it is true but irrelevant, a non sequitur. It is well known that most addicts are engaged in criminal activities prior to addiction and typically have a prior arrest record as well (O'Donnell 1965). This is, however, a fairly recent development. Most of the addicts of a generation ago were addicted before they engaged in criminal activities on a routine basis (Abrams et al. 1968, p. 2147); the transition can be traced to the abortive efforts of law enforcement policies and practices. Moreover, addiction clearly increases the frequency,the rate, and the seriousness of the crimes committed, as well as the likelihood of arrest. It is highly questionable whether any addict would persist in stealing hundreds of dollars of merchandise a day if he did not need to "support" a costly habit. It would be foolish to argue that the urban crime rate would not drop sharply with the institution of some kind of clinic maintenance program. Although the rate of crime for clinic addicts would probably be higher than that of the population at large, it would be far lower than the current rate of addict crime under the police-controlled system.
Perhaps the most foolish and erroneous view currently in vogue on the drug question is that embodying the "chemicalistic fallacy"—the view that addicts engage in crime because of the biochemical effects of heroin itself. It is seriously entertained in some quarters that as a direct action of illegal drugs the user's "character" is destroyed, he becomes a degenerate, his "morality" declines, and he inevitably turns to crime. It has been well over thirty years since Alfred Lindesmith launched an assault against this "dope fiend mythology," but the myth persists, trailing the wreckage of human life behind it. There is nothing inherent in the molecules of heroin that, when united with the cells of the body, compels the user to go out and commit crimes. The addict does not simply commit crimes—he commits moneymaking crimes. As arrest data show unambiguously, the addict is far less likely to commit crimes of violence, such as assault and rape, and far more likely to commit crimes that lead directly to quick cash. The view that addicts simply commit crimes of all kinds because of the direct action of drugs themselves is a grotesque and archaic point of view and is refuted at once by a look at the facts.
If the rehabilitative rationale that is used to justify the drug laws were actually functional, someone who is arrested and punished for a narcotic violation would be unlikely to continue using drugs after his punitive experience. In fact, the opposite is true. In one study of 9,000 addicts in Chicago it was found that 86 percent had been previously arrested on narcotic charges. The authors of the study conclude that there is a "treadmill of addiction," with the same addicts being continually arrested and re-arrested, and with new addicts replenishing the supply from time to time (Abrams et al. 1968, p. 2142). Various studies of recidivism among addicts who have served prison sentences—or who have been detained in government-supported "hospitals"—indicate a relapse rate of between 50 and 97 percent (Hunt and Odoroff 1962; Duvall, Locke, and Brill 1963; O'Donnell 1964, 1965; Lindesmith 1968). Most studies show a recidivism rate closer to 90 percent; the rate of relapse for addiction is probably higher than that for any type of crime—with the exception of committing homosexual acts. In many ways prisons serve to intensify the addict's involvement with narcotics, since the majority associate only with other addicts in prison and their major topic of conversation revolves around drugs. The marginally committed narcotics user will find himself associating with, and gradually acquiring the attitudes and values of, the addict subculture in prison. The lesson to be drawn from follow-up studies of addicts released from prisons and federal hospitals is that relapse is overwhelmingly the rule and not the exception. Punishment appears to have virtually no effect on deterring the addict from using drugs after his release. Prison is clearly not the answer.
It is obvious that efforts at criminalizing addiction have failed.Any agency other than law enforcement with such a high rate of failure would be forced to reevaluate its methods of dealing with the problem. Over half a century of failure is a long and dismal record indeed. Since the police are to some degree insulated from criticism, they may safely ignore a factual assault on their methods and may remain unwilling to admit their failure to deal with the problem. An answer to why this society continues to pursue the same unworkable and disastrous policies toward drug addiction would require a volume-length discussion. However, a number of suggestions in this direction can be made. When a form of behavior directed toward a stated purpose fails to achieve its goal, the sensible observer begins to look for unanticipated goals or consequences, for latent rewards or blind spots. I am often asked by my students in criminology, deviance, and delinquency classes if the reason for the inability of society to rid itself of the drug problem is that the police receive large payoffs from organized crime. My feeling is that this explanation is far too facile. It is true that more than a few narcotic squads are involved in drug peddling and receive money directly from the criminal underworld. (During the summer of 1969 fifty out of the 300 agents in the Federal Bureau of Narcotics' New York office were forced to resign in the wake of a scandal exposing widespread drug peddling among law enforcement agents. It is exceptional for such behavior to reach public view but common for it to occur.) In itself, however, this does not account for the continuation of the obviously unsuccessful drug programs in force today, though it might explain why one or another drug peddler is not arrested.
I believe that the following factors play a role in insuring that the agents of social control, as well as a majority of the public, will continue to view their efforts as reasonable and efficacious, and to regard any reform of the system as an erosion of justice.
(1) The symbolic functions implied by severe penalties play an important role in their continuation, whether or not the penalties are effective. A policy is not only a practical attempt to achieve clearly demonstrable goals; it is also a statement of one's own ideological stance. In the case of drug laws, punishing the wrongdoer affirms one's undaunted opposition to drug use. To take a less severe stance would somehow imply that one approves of taking drugs, that at the very least one tolerates drug use. Savage penalties signify one's desire to do something about the problem, even if the penalties actually achieve the reverse. The polarization of sides on all significant issues produces the need for displaying statements of one's ideology. When the issue of "law and order" becomes crucial, support for the police in all their efforts becomes a watchword for a specific political stand. The outcome of the police efforts is basically irrelevant—what counts is which side one is on.
(2) Ideological considerations limit objective evaluations so powerfully that one is unable to see the destructive effects of one's own actions, or the actions of parties that one supports. The fact that many efforts to stamp out crime actually strengthen it will not be recognized by those who initiate such actions. Policemen will reject the contention that the death penalty does not deter homicide—even though data supporting this assertion are a matter of public record—because such a view does not square with their ideology. Moreover, the claim that one has actually contributed to something that society views as repugnant is an extremely uncomfortable thought and will not be readily believed. Thus it is extremely unlikely that anyone involved in pursuing or supporting existing drug policies will actually understand or perceive his impact on the drug problem. It is easier to rationalize and justify one's efforts than it is to attempt to make them really effective.
(3) Vengeance is a powerful motive in the desire to punish the deviant and the criminal. Any strict observer of the law and existing morality will perceive an imbalance in the moral economy; the conformist will feel a sense of "distributive injustice" if the transgressor is not punished, and when he is the conformist has cause for satisfaction. A person who observes the law will feel that he has "paid" much more and has received much less in return than the deviant and the criminal who have managed to beat the system. The desire on the part of the law-abiding citizen to punish the transgressor need not bear any relationship to criteria of "effectiveness," because his punishment becomes seen as an end in itself.
(4) Deviance and crime, and deviants and criminals, present a vast resource for social control agencies. It has been noted repeatedly that the agencies whose supposed goal is to stamp out antisocial behavior and to "correct" individuals committing it often do their best to insure that these individuals actually continue that behavior. In prisons, mental asylums, courts, welfare agencies, reformatories, or any one of a dozen correctional institutions, there appears to be almost a self-perpetuatingquality to the efforts of social control. But this is not as strange or contradictory as it seems at first blush. Social control agencies derive support from deviance; the deviant is defined as the special area of competence of the agency, which receives public funds for its supposed special competence. Deviance is a domain, a sphere of interest, a "turf," an area of control, power, resources, expertise, and concern; it is a kind of happy hunting ground. Without this domain, the functions of the agencies dealing with it would be dubious. A correctional agency cannot be too successful, for that would eliminate its very reason for being and would involve a scramble to discover another problem area. Dealing with an ongoing problem for decades also gives an agency "seniority" in that area—eminent domain, in the case of the police. The police, then, draw ideological and material sustenance from drugs and drug users. It is not a domain that the police are going to give up easily or willingly. It has profited them too handsomely.
The colossal failure of drug policies can in part be attributed to the confusion between intention and effectiveness. Most drug policies are, and continue to be, based on ignorance. Lawmakers do not pay attention to the latest research being done in a given area. The "experts" selected to justify law enforcement policies—selected for ideological and not scientific reasons—typically know little more than the lawmakers themselves. Creators and enforcers of the law are, unfortunately, victims of their own propaganda. They have no idea of what the impact of their efforts will be, largely because they have an erroneous and simple-minded view of the social and psychological realities of the drug scene. Often this ignorance causes more damage than the absence of any policy at all.
"The law is an ass," said Mr. Bumble in Dickens' Oliver Twist. In the area of drug use, this appears to be irrefutably the case. Drug laws have not worked. The illegal use of drugs is growing apace. Each new, stiffer law is announced as a more effective instrument in the fight against drug abuse. And each year the number of illegal drug users increases. Yet law enforcement officers will continue to apply the same witless and self-defeating policies, to enforce the same stillborn laws. And the lawmakers will comply by cranking them out—without any effort to review the principles on which they rest. Evidence demonstrating the failure of police efforts will be ignored, discounted, and even suppressed. A roster of pseudo-experts will be encouraged and financed by agencies of social control to provide "proof" making present policies appear expedient and reasonable. Efforts to significantly reform the law will be resisted, and more stringent penalties, as well as more police power, will be called for. Nonpunitive methods will be discredited. And because ongoing policies are based on errors of fact and logic and a distorted conception of drugs and drug users, the existing problems will continue to grow and the policies will almost inevitably be abortive.
The legal situation in relation to marijuana represents a qualitatively different problem from that of narcotic addiction. While many (although certainly not all) heroin addicts wish to discontinue the use of heroin, very few marijuana users wish to stop smoking cannabis. The laws criminalizing marijuana—directed, paradoxically, principally and most stringently against sale and possession, and almost not at all against use itself—represent what Jerome Skolnick calls "coercion to virtue" (Skolnick 1968). Marijuana use is a classic case of the "crime without a victim"; the user harms no one except himself, and many observers question whether even the user is harmed by the use of marijuana. (Other observers argue that the fact that marijuana use is spread among friends—much like a communicable disease—refutes the claim of a victimless crime. However, the solitary user is just as liable to arrest as is the gregarious, sociable user who "turns on" friends. No one who wields this argument suggests that solitary users should be exempt from the marijuana laws.) Since there is no victim, there is no complainant, no one to report marijuana crimes taking place. While the ratio of detected to undetected murders approximates one to zero, detected to undetected auto thefts one to zero, and detected to undetected rapes approximately one to four, there is something like one detected to several hundred thousand undetected acts of marijuana use, one detected to several thousand undetected acts of marijuana sale, and one detected to at least tens of thousands of undetected instances of marijuana possession. The marijuana user who is arrested is in the tiny minority, whereas the overwhelming majority of street narcotic addicts eventually become arrested during their addiction "careers." There are prison cells to hold only several hundred thousand criminals in the United States, and something like 20 million Americans have tried marijuana, half of them using the drug on a more or less regular basis. Regardless of the wisdom or justice of the laws, of their effectiveness as deterrent devices, or of the relative harm or harmlessness of the drug itself, it must be realized that anyone seriously enforcing the marijuana laws faces enormous strategic and logistical problems. In fact, any reasonable observer would have to say that enforcement of the laws is a complete impossibility.
The federal marijuana law—the Marijuana Tax Act—was passed by Congress and signed into law by President Franklin Roosevelt in 1937. It was ruled largely unconstitutional in 1969 in Leary v. United States because of its double-jeopardy feature in relation to the fifty state laws outlawing the sale and possession (and in some jurisdictions the use) of marijuana. (The federal law did not literally penalize the possession of marijuana; rather it penalized the failure to pay the excise tax of $100 per ounce on the transfer of marijuana. But if one were willing to pay the federal tax and were to fill out the necessary forms, one would have automatically incriminated oneself under the state laws.) The act was replaced on the federal level by the Comprehensive Drug Abuse Prevention and Control Act of 1970. The federal law is, however, far less crucial than the fifty state laws criminalizing marijuana. First of all, the number of arrests on the state level is much greater than the number of federal marijuana arrests. Since 1968 in California alone about 50,000 marijuana arrests have taken place each year, and the total arrests in all the other states is at least triple this figure. The number of arrests at the federal level is minuscule in comparison. Second, arrests at the state level involve primarily users and petty sellers, whereas at the federal level most of those arrested are marijuana sellers, usually of large quantities and often at the importation link of the distribution chain. As recent research has indicated, most state-level marijuana arrests take place as a result of accident —a patrolman stumbling upon marijuana in someone's possession—and not of planning. One study reported that the overwhelming bulk of state-level marijuana arrests took place without the work of an undercover agent, without the aid of an informant, and without the use of a search warrant or an arrest warrant (Morton et al. 1968). Over a third of the arrests (45 percent for adults, 36 percent for juveniles) took place in an automobile, and another quarter or so (21 percent of the adults, 35 percent of the juveniles) took place in a public place. These facts indicate the dominant role of "patrol enforcement" and the almost complete absence of a systematic enforcement strategy in marijuana arrests at the state level. In the study just cited, undercover agents supplied only 3 percent of the adult marijuana arrestees and 7 percent of the juvenile arrestees. The accidental nature of state-level marijuana arrests is clearly a source for the feelings of distributive injustice among those arrested.
Another feature of the state marijuana laws (also likely to produce resentment) is their enormous variability. Nebraska has the most lenient state law. For possession of a pound or less of marijuana the Nebraska law calls for a penalty ranging from a nominal fine of $ I to seven days' confinement in a county jail and/or a fine up to $500, plus compulsory attendance in a "drug education" course. For possession of more than a pound, the law calls for confinement of from six months to a year and/or a $500 fine. Of all the states, Texas has the most severe penalties; its law calls for imprisonment of from two years to life for the possession of marijuana! It might be reasoned that such a barbaric penalty could never be imposed today; unfortunately for some, sentences of thirty to fifty years were actually handed down in the state of Texas in the late 1960s and early 1970s.
By what set of criteria should the effectiveness of the marijuana laws be judged? There are at least five basic functions supposedly served by the marijuana laws and their enforcement: (1) deterrence, (2) rehabilitation, (3) public safety, (4) vengeance, and (5) symbolic representation. The first three of these are instrumental goals—measures can be set up to determine whether or not they have in fact been achieved. The last two are symbolic or ideological—and beyond the reach of empirical tests. The deterrence function can perhaps be measured by comparing the current popularity of marijuana with that of alcohol. The fact that there are "only" 20 million or so marijuana users in comparison with 80 to 100 million drinkers of alcohol (these are overlapping groups, of course) suggests that some degree of deterrence has in fact taken place. But, this trend is swiftly breaking down. Various studies indicate that the rate of increase in the number of college students who have tried marijuana is approximately 1 percent every one or two months. If the present pattern continues, it is highly likely that by the 1980s marijuana will be the drug of choice among the under-thirty segment of the American population. (Alcohol is still the most popular drug among the young.) In this sense, the deterrence aspect of the marijuana laws has been, and will increasingly be, a failure.
No follow-up studies have been done of the impact of law enforcement on arrested marijuana users. However, it is known that the number arrested is a minuscule percentage of the total population of users, and that users who are sent to jail are a small proportion of all arrested users. Most marijuana arrest cases are either dismissed, granted parole without a jail or prison sentence, released, or acquitted. If law enforcement were pursued vigorously, and if jail sentences were the norm, the deterrence and the rehabilitation functions of the law could be tested properly, but the marijuana laws have become similar to others that are fitfully, unequally, and irrationally applied and enforced. Thus, given the relatively small number of marijuana users who ever serve a sentence, the rehabilitation function can be said to be almost completely null and void.
The public safety issue is clearly contingent on deterrence. The reasoning is that since the laws prevent millions of citizens from using marijuana less damage is done to the body social, because less of the drug is consumed and fewer people are being harmed. The issue is also contingent on three other factors: (I) whether marijuana is in fact dangerous and damaging; (2) the lack of substitution of marijuana for other drugs, such as alcohol; and (3) the lack of damage to society obtaining under the present situation. The majority of the studies summarized in Chapters 2 and 3 suggest that on the issue of the harmfulness of the drug—social, psychiatric, and medical—marijuana appears at present to be no more damaging than commonly accepted household substances. Moreover, nearly all the studies claiming damage to moderate or heavy users have not produced convincing evidence (see, for example, Kolansky and Moore 1971; Campbell et al. 1971; Kew, Bersohn, and Siew 1969; Talbott and Teague 1969; Isbell and Jasinski 1969). If such evidence is to be found, the future awaits it; it has not been turned up at this writing.
The question of marijuana substitution is also not easily resolved. The anti-marijuana forces have argued that the fact that many marijuana users also drink demonstrates that substitution does not occur—and that instead of only one problem we will have two if the marijuana laws are relaxed. The pro-cannabis forces argue that if marijuana were decriminalized, less alcohol and more marijuana would be consumed, and since the medical damages of alcohol considerably outweigh those of marijuana, less total damage would occur to users and to society. The "anti" argument is couched in the form of X plus Y (damage as a consequence of alcohol use plus damage as a consequence of marijuana use); X plus Y is clearly greater than X alone. The "pro" side holds that what really occurs is X plus Y minus Z (thedamage prevented as a consequence of converts from alcohol to marijuana). Actually, the fact that marijuana users also drink alcohol does not invalidate the substitution thesis, since there is no way of knowing how much they decrease their intake of alcohol after smoking marijuana. It is possible—even likely—that the level of alcohol use among marijuana smokers is higher than that of the general population and that users reduce their alcohol consumption after smoking marijuana. The substitution thesis is being tested by a number of physicians who are suggesting and implementing marijuana use in their therapy as a cure for alcoholism (see, for example, Mikuriya 1970, 1971). Dr. Jordan Scher suggests that a large-scale study should be made on the feasibility of a substitution program. Marijuana, Scher writes, "is not very noxious physically," whereas alcohol, especially among alcoholics, is associated with "frequently psychopathic and violent, combative, and destructive features," is "responsible for 50 percent of automobile and plane accidents, killing 50,000 and maiming and injuring about five times this many annually, and for 50 percent of all arrests for whatever reason." Dr. Scher writes that in regard to legalization, "I am not really sure I am in favor of this idea," but "it may come about in the not too distant future" (Scher 1971, p. 972).
In spite of all the arguments for and against the decriminalization of marijuana, the fact remains that these "logical" issues are probably of little consequence in the debate. Marijuana is illegal because most of the public, as well as those in power, are ideologically opposed to its use, because it is a symbol for many other activities and beliefs that are also condemned, and because there is a connection in the minds of many people between marijuana use and belief in a politically and morally unconventional ideology. The medical argument is added to the moral and ideological sentiments to make the anti-marijuana stance appear to be reasonable and rational. The eventual acceptance and decriminalization of cannabis will come about as a consequence of the following factors: (1) the rhetorical and forensic skills of the pro-marijuana lobby in outpropagandizing their opponents; (2) their tactical, organizational, and strategic abilities; (3) the conversion of millions more Americans as a consequence of having tried the marijuana experience; and (4) the gradual dying off of a generation with a restrictive world view and the coming into power of a generation that finds the marijuana experience ideologically acceptable. Marijuana's "objective" properties will play a very minor role in this process.
1. Documentation of this assertion would require a book-length presentation. The scheme, however, agrees with Fort's. There is at least one methodological difficulty, and that is how much of the drug constitutes "heavy" use and over how long a period of time. A "heavy" tobacco smoker might consume forty or fifty cigarettes a day, whereas a heavy smoker of marijuana might consume one or two joints a day and a heavy user of LSD might trip twice a week or so at the most. Thus if we were to accept as one possible definition of "heavy" use that quantity consumed by the one in ten heaviest users, we would be considering vastly different quantities of different drugs consumed, and the patterns of use of each drug would influence our findings. "Heavy" use of alcohol would be the quantity drunk by the 10 percent most frequent drinkers of everyone who has used alcohol in the past six months—a definition that would be approximately identical to all alcoholics. But obviously, this would vary from nation to nation. Another definition might be the quantity that is necessary for the user to be under the influence of the drug all his waking hours, regardless of actual patterns of use. There are serious problems with this definition too, such as the fact that it would be difficult, if not impossible, for users of some drugs to be high all the time, given the development of tolerance No definition of "heavy" use covering all drugs is completely satisfactory, and such a comparison is partly a methodological problem.(back)
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