The hidden costs of America's war on drugs.

Author:McNamara, Joseph D.
 
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  1. The Cause of Crime

    In 1870, an Italian physician, Cesare Lombroso, sometimes referred to as the father of criminology, concluded that there was a "criminal type." Lombroso, after studying the inmates of an Italian Army penitentiary, hypothesized that it was possible to identify lawbreakers by inherent physical characteristics (Friedman, 1993, p.141). Ever since Lombroso advanced his premise of "Atavistic Anomalies," countless behavioral scientists have theorized on the causes of crime.

    Despite the abundance of conjecture, it is possible in the United States to identify the literal cause of crime--an act or omission prohibited by law and punishable by fine, imprisonment, or death (Black, 1968, p.444). The United States, unlike many other nations, embraces statutory law. In other words, the crime must be defined in writing by a legislative body of elected officials and endorsed (rather than vetoed) by an executive member of government, who is usually also elected. Thus, the government, by defining certain acts, such as assaults, thefts and murders, or omissions, such as refusing to pay income taxes or failing to obtain a license before driving a motor vehicle, as illegal, causes crime. All fifty states have lengthy penal codes classifying various behaviors as crimes. In addition, counties, municipalities, towns, and villages also label certain activities as illegal. In general, however, federal law preempts decrees of subordinate jurisdictions, subject to certain provisions of the national Constitution, as adjudicated by federal courts (Friedman, 1993, p.55 58; 297-300).

    I was a policeman for 34 years of the last century. As a beat officer in New York's Harlem, and as police chief in Kansas City, Missouri, and San Jose, California, I caused many drug users to be locked up. I have come to believe that jailing people simply because they put certain chemicals into their bloodstream is a gross misuse of the police and criminal law. This article examines some of the reasons why.

  2. The History of Drug Criminalization in the U.S.

    As medical historian Professor David Musto (1987) of Yale has reported, the drug war started roughly 100 years ago. Protestant missionaries from the U.S. working in China and other American religious groups joined with temperance organizations in convincing Congress that drugs were evil and that drug users were dangerous, immoral people. These groups often exhibited xenophobic and religious bias and mistakenly believed that drug use was a habit of foreigners. Some reformers candidly viewed it as the white man's burden to Christianize the yellow (Chinese) heathen. Some were disgusted by the thought of white women being with "Chinamen" in opium dens. Others perceived the drug problem as causing Negroes in the South to attack and murder whites. In addition, many saw drug use as the habit of degenerate Mexicans. The religious groups predominately believed these foreign drug habits to be a moral threat to native-born Americans. Still others were humanely concerned with the obvious damage that this "sinful, depraved and immoral behavior" caused among the "inferior races." The reformers' mistaken biases (most drug use in America was by native-born Caucasians) swayed Congress (Musto, 1987; McNamara, 1973b; Hofstadter, 1955, p.177-85).

    The Progressive drug reform efforts certainly did not solve the drug problem, but they did give birth to unanticipated social damage.

    This process of legislating criminal behavior is vital in analyzing America's war on drugs. Given the intensity of emotions surrounding the drug war, the overwhelming majority of Americans, including police officers, let alone residents of other nations, would be surprised to learn that for roughly the first 140 years of this Republic, the sale or possession of certain drugs that today might result in a life sentence in prison was legal. Even children were free to enter a pharmacy or general store to purchase morphine, opium, cocaine, cannabis, and other nostrums that today trigger heavy criminal penalties for possession and sale. In those days, the popular soda beverage Coca-Cola contained cocaine, and most over-the-counter cough medicines included morphine. (1)

    In 1914, a government publicly advocating the reduction of crime passed legislation creating unknown millions of additional crimes. Overnight, the U.S. government turned hundreds of thousands of previously law-abiding drug users, ex post facto, into criminals. Historian David Musto (1987, p.65) describes the Harrison Act as: "... a routine slap at moral evil"; drugs had to be outlawed because "Cocaine raised the specter of the wild negro, opium the devious Chinese, morphine the tramps in the slums." (2) Furthermore, this legislation, the Harrison Anti-Narcotics Act, represented a sea change in interpreting Constitutional restrictions on the federal government's right to interfere in police powers previously reserved to the states. The Congress that passed the Harrison Act brooded over whether it was violating the Congressional principle that powers not enumerated in the Constitution were reserved to the states (Musto, 1987, p.21-23). Congress finessed this issue by referring to the Harrison Act as a revenue measure affecting opium, cocaine, and other drugs, because raising revenue and regulating interstate commerce were among the federal powers authorized by the Constitution. Thus, the Harrison Act of 1914 became the cornerstone of American criminal drug control policy, which has continuously expanded the drug war.

    Constitutional uneasiness similar to that experienced during the passage of the Harrison Act of 1914 also afflicted Congress when it outlawed cannabis in the 1937 "Marijuana Tax Act," which also eventually received federal court approval as a penal statute. In contrast, federal prohibition of alcohol from 1920-1933 was achieved by the far more formal and cumbersome process of amending the Constitution through the 18th Amendment. When the nation decided that the "noble" experiment of criminal alcohol prohibition had done more harm than good, it was repealed by the 21st Amendment to the Constitution. Some legal scholars thus raise the question as to whether the federal drug laws, which have been legislated by Congress as opposed to being approved through the prescribed process of Constitutional amendment, exceed the authority of Congress (Pilon, 2000, p.23-40; Duke, 2000, p.41-60).

  3. Health Care Costs of the Drug War

    The Harrison Act contains the sentence: "That nothing contained in this section shall apply (a) To the dispensing or distribution of any of the aforesaid drugs to a patient by a physician, dentist, or veterinary surgeon registered under this Act in the course of his professional practice only: ... with the appropriate practice of medicine" (Harrison Anti-Narcotics Act, 1914, Ch 1, 38 Stat. 785). However, this was not to be the case. The 1938 Food, Drug and Cosmetic Act (U.S. Code Title 21) and the Federal Drug And Control Act (sec. 201[g][1]), the enabling statutes for the Food and Drug Administration, define drugs by their intended purpose, as "(a) articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease ... and (b) articles (other than food) intended to affect the structure or any function of the body of man or other animals." It is self-evident that the broad scope of these definitions means that hundreds of thousands of pharmacological substances are labeled as drugs. It is also true that a modest alteration of molecules can transform a chemical from a legal medicine into a prohibited substance. Furthermore, distribution of non-prohibited substances can result in federal or state prosecutions well beyond the average or even wealthy person's ability to mount a legal defense. Some doctors are now being prosecuted as drug traffickers after federal agents and prosecutors decided that their prescription practices were not "appropriate." Expensive legal fees and the possibility of a life sentence if the verdict goes against the defendant provide a powerful incentive for most physicians to plead guilty to a lesser charge in return for a reduced sentence.

    The United States Supreme Court, under its judicial review function, vacillated on the nature of the Harrison Act. Federal Treasury Department agents arrested a number of physicians who had been prescribing narcotic drugs to treat drug addicts and other patients with chronic pain. The doctors' defense that they were practicing medicine was successful in some cases. In 1915, the Supreme Court hardened its position when Justice Holmes wrote in a majority opinion that in passing the Harrison Act:

    Congress meant to strain its powers almost if not to the breaking point in order to make the probably very large proportion of citizens who have some...

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