1 of 1 DOCUMENT ABA Journal

ABA Journal
March, 1993
79 A.B.A.J. 70
AUTHOR: Dan Baum
LENGTH: 3795 words
SECTION: Criminal Justice
The nation ringing in the Clinton administration is, by several measures, a healthier and more health-conscious nation than
it was when Ronald Reagan took office. Americans exercise more, eat less fat, drink less alcohol and smoke less tobacco
than they did a dozen years ago. Public awareness campaigns, strong leadership from the surgeon general's office, and
laudable efforts at enlightening schoolchildren have, for the nation as a whole, significantly reduced demand for cigarettes,
alcohol and butterfat.
Cocaine and marijuana, though, are different. So gravely did the Reagan and Bush administrations view these public
health problems that they fought them not with persuasion, but with what they called a "war." George Bush devoted his
first televised presidential address entirely to cocaine, calling it the nation's "most serious problem."
To be sure, cocaine, marijuana and other illegal drugs have ruined a lot of lives during the past dozen years, and each story
of addiction or death is more heartbreaking than the last. But the dangers of pharmacological substances pale beside other
threats accepted more calmly by the public and politicians.
For every person who dies from cocaine poisoning, 15 people die from the direct effects of alcohol and 60 from tobaccorelated illnesses, according to the Public Health Service (PHS). No deaths from marijuana have ever been reported.
Dramatic headlines notwithstanding, cocaine touches relatively few lives. According to the General Accounting Office
(GAO), six million Americans used cocaine in 1990, but fewer than 350,000 used it daily -- a big number, but not
compared to that of people plagued by other public-health problems, like the five million children under 12 who go hungry
at some point each month (according to the Food Research and Action Council in Washington, D.C.).
"On the grounds of the health costs, it could scarcely be claimed that use of illicit psychoactives constitutes a social
problem of the first order," writes Peter Reuter, co-director of the Drug Policy Research Center of the RAND Corp.
Nonetheless, so convinced were the Reagan and Bush administrations that drugs were society's greatest evil that they
chose to fight the use of these illegal drugs with a "war."
To fight this war, federal, state and local governments spent about $100 billion during the Bush administration. In the
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1980s, a decade supposedly devoted to shrinking the federal government, the federal drug-fighting budget grew ninefold
to almost $13 billion a year, or about twice that of the Environmental Protection Agency.
But only about a third of the federal drug budget goes toward trying to get users off drugs and toward educating children
and other nonusers not to start. The rest goes to pay for more police, more drug agents, more prosecutors and more
The nation's strategy in the war on drugs has been to spend twice as much on law enforcement as on treatment and
education. By handing responsibility for this public health problem to the attorney general instead of the surgeon general,
the United States has become the nation with the largest percentage of its people behind bars.
America has doubled its prison population since 1980. The number of federal prison inmates doing time for drugs is now
greater than the entire federal prison population was in 1980.
In California, the portion of state prison inmates doing time for drugs has doubled to one-quarter of all inmates just since
1985; one of every five California state employees now works for the department of corrections.
"Drug czar" William Bennett created a network of high-level drug officials in the Interior, Education, Defense and other
departments to give drug policy top priority. The highest-placed single-issue office at the Department of Health and
Human Services, for example, is the counsel to the secretary for drug abuse policy. No other health or human-service issue
-- not AIDS, alcoholism, hunger or poverty -- rates a secretary-level special counsel. As of press time, this specialized
drug-fighting network remains within the Clinton administration.
Judges and police chiefs are beginning to criticize such worrisome byproducts of the drug war as mandatory life sentences
without parole for nonviolent drug offenses, government seizure each year of $1.6 billion worth of citizens' property, and
the criminalization of a generation of black men. (Across the country, one of every four black men between the ages of 18
and 30 is under some form of correctional control; in Baltimore and Washington, D.C., the figure approaches 50 percent.)
"I don't feel that you and I could sit down and take two weeks and design a system worse than the one we've got," says
James Gray, a self-described conservative Republican superior court judge in Santa Ana, Calif., since 1989 and former
federal prosecutor. "The courts are doing a good job, as is the DEA and everybody else. But we're farther away from a
resolution than when I started on the bench."
Gray, who is careful to refer to drugs as "garbage" and abhors their use even as he promotes legalization, joins other state
and federal judges in lamenting the crippling burden drug cases place on the courts. President Bush let the number of
sitting federal judges decline during his administration, while tripling the number of federal prosecutors and spurring them
to bring three times more drug cases to federal court in 1990 than in 1980.
The result has been havoc in the federal courts so acute that Chief Justice William Rehnquist told the 1992 midyear
meeting of the ABA that the explosive rise in federal drug prosecutions is "making it next to impossible for many judges
to give timely and adequate attention to their civil dockets."
Despite the country's unprecedented lawenforcement effort, overall consumption of illegal drugs hasn't declined
appreciably, and in the inner cities it appears to have skyrocketed. Rates of violent and property crime likewise don't seem
much affected, according to figures from the Federal Bureau of Investigation. Still, "getting tough" on drug users and drug
dealers has remained the national strategy. The Bush administration consistently treated drugs as the root of society's ills.
Bush's annual National Drug Control Strategy, the written conscience of the war on drugs, justified the emphasis on
enforcement by focusing all blame for drug use on the individual, explicitly rejecting any notion that drug use is a
symptom of economic, social and political distress.
"To explain the drug problem by pointing to social conditions is to 'victimize' drug users and deprive them of personal
autonomy -- the freedom and will not to use drugs," Bush's 1992 National Drug Control Strategy states. "The drug
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problem reflects bad decisions by individuals with free wills." Adds John Walters, the outgoing deputy director for supply
reduction in the Office of National Drug Control Policy (ONDCP): "Poverty doesn't cause drugs; drugs cause poverty."
The strategy based the war on assertions about drug use stated as fact. But these assertions are questioned by independent
researchers, who produce an endless stream of studies that challenge the central tenets of the drug war.
To cite a few examples: The strategy's notion that babies exposed to crack in the womb will never recover and constitute a
"time bomb" that will "explode 20 to 30 years from now" is challenged by researchers at both Emory University Medical
School and the National Association of Perinatal Research and Education.
They find instead that most effects of cocaine exposure pass within several months, and that most of the sad long-term
symptoms popularly associated with "crack babies" stem instead from other conditions that commonly accompany cocaine
use, such as poverty, violence, malnutrition and poor prenatal care.
The shibboleth that increased drug enforcement can reduce other types of crime is questioned by studies in Florida and
Chicago, where diverting extensive police resources to drug enforcement had the unintended consequence of allowing
both property crime and alcohol-related traffic deaths to increase.
The common belief that high murder rates are caused by people driven insane by drugs is contradicted by an examination
of 218 New York City homicides recorded as "drug-related" in 1988. Five were caused by the psychoactive effects of
crack (as opposed to 21 by the effects of alcohol); motives for the rest lay not in the pharmacological substance but in the
nature of the illegal drug trade -- either turf wars or robberies by addicts desperate to buy another dose.
And the government's assertion that cocaine can be "instantly addictive" is upended by its own numbers; of the more than
six million Americans who used cocaine in 1990, only about one-tenth used it weekly and only about half of those, or 5.4
percent of all cocaine users, used it daily, according to the GAO.
While none of the studies challenging "instant addition," "drug-crazed" crime or a generation of "crack babies" is
conclusive, they at least begin to lend academic support to a re-examination of current drug policy.
On the other hand, research supporting the policy -- detailing the health dangers of drugs and linking drug abuse to crime,
for example -- isn't available from ONDCP or the Department of Health and Human Services. Both agencies ignored
repeated requests, by phone and fax, for studies that support the assertions about drug abuse made in the 1992 Drug
Control Strategy.
"If you want mass studies, there aren't any," said Walters, who charted national drug-enforcement policy for four years.
"It's very hard to get to the bottom of some of this."
Instead of "mass studies," ONDCP, the White House and their allies in Congress and the courts generate support for the
government's enforcement-heavy policies through moral assertions about drugs and the people who use them.
Speaking at Harvard in 1989, the new ONDCP director, William Bennett, summed up his abhorrence of drug use this way:
"It makes a mockery of virtue."
"It's a moral question," Walters said, during an interview in his Washington office two weeks after the November election.
"The question of right and wrong is crucial."
Federal judges have written into their opinions comparisons of drug users and dealers to "the vampire of fable," and an
"external enemy," and one judge even suggested that compared with drug trafficking, "violent crimes may well be
considered the lesser of two evils."
Building more prisons is "the morally right thing to do," Attorney General William Barr said in a speech last April. Drug
czar Bennett even suggested, on "Larry King Live," beheading dealers.
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Such medieval reasoning permeates the National Drug Control Strategy, which effectively equates drug users with lepers,
comparing them "in epidemiological terms" to a "carrier" whose drug use is "highly contagious." The casual user is
singled out for punishment more than the hard-core addict because "he is likely to have a still-intact family, social and
work life. He is likely still to 'enjoy' his drug use for the pleasure it offers."
Each year since 1989 the strategy has called for ever-tougher sanctions against nonaddicted, nondealing consumers of
illegal drugs. "Who's responsible?" George Bush asked in his 1989 speech. "Let me tell you straight out: Everyone who
uses drugs. Everyone who sells drugs. And everyone who looks the other way." The Bush White House called this
principle "user accountability." Critics call it cruel and repressive.
"The mentality here is a concern not with health, but with compliance," says Professor Lynn Zimmer of the City
University of New York. "That's why there's no parallel concern with alcohol and tobacco." She points to the circular logic
that gives rise to such a position: "Drugs are illegal because they're immoral, and immoral because they're illegal."
Congress has eagerly played along with the White House. "In the war on narcotics, we have met the enemy, and he is the
U.S. Code," Rep. Earl Hutto, D-Fla., complained during a 1981 hearing. "I have never seen such a maze of laws and
Since then, Congress abolished federal parole. It let police share in the confiscated assets of drug dealers, giving them a
financial interest in the drug economy they're supposed to eradicate (state and local police collected $218 million in shared
assets in fiscal year 1992). Congress let police hold drug defendants without bail. It required states to revoke drug
offenders' driver's licenses or lose federal highway funds.
Congress also removed federal judges' authority to decide sentences, writing in 1984 a long list of mandatory minimum
sentences that judges must apply without consideration of the circumstances of the particular crime or the defendant's
character. (Predictably, defense attorneys hate mandatory minimums. But so do federal judges. The judicial councils of all
12 federal circuits passed resolutions in 1990 and 1991 asking Congress to reconsider mandatory sentencing. Even federal
prosecutors are divided on it, according to a survey by the federal Sentencing Commission.)
Anyone defending a client in federal court also now faces the Speedy Trial Act of 1984, which says a federal case must
come to trial within 70 days of indictment. "That sounds good," says Louisiana defense attorney Thomas Lorenzi, "but the
feds take five years to prepare a case, then issue an indictment and bam! You're arraigned today, motions are due in 15
days, trial in six weeks."
Also in 1984, Congress passed a law allowing prosecutors to appeal a sentence, a right that used to be enjoyed almost
exclusively by the defense. "They don't do it much, but they do have the right and the threat," says Judy Clarke, a
Spokane, Wash., federal defender who privately publishes the monthly "Guideline Grapevine," which tracks federal
sentences. "Prosecutors use it to intimidate the defense into not appealing a trial issue if they [prosecutors] won't appeal a
sentencing issue."
All in all, the passion to fight drugs has reversed the federal government's traditional leadership in holding states to a
higher standard of civil rights. "When I started to practice law, the state legislature would have to go into session every
year to restrict their laws to comply with federal law," says Lorenzi. "Now they go into session every year to change their
laws to take advantage of federal laws' new laxity."
Drug use and drug sale are crimes committed among willing participants -- unlike robbery, rape or burglary. So
investigating drug crime requires intrusion into peoples' lives. And the courts have shared Congress' willingness to make
that intrusion ever easier. Every one of the federal wiretap warrants requested of federal judges in 1990 was approved; in
fact, the annual use of federal wiretaps has more than quadrupled since 1980.
In drug case after drug case, the U.S. Supreme Court has loosened the rules surrounding search warrants, too. Illinois v.
Gates, 462 U.S. 213 (1983), and McCray v. Illinois, 386 U.S. 300 (1987), permitted the issuance of search warrants based
on anonymous information; Oliver v. United States, 466 U.S. 170 (1984), permitted warrantless searches of fields, barns
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and other private property near a residence; United States v. Leon, 468 U.S. 897 (1984), Massachusetts v. Sheppard, 468
U.S. 981 (1984), and Maryland v. Garrison, 480 U.S. 79 (1987), allowed the use of evidence obtained under a defective
search warrant if officers acted "in good faith." California v. Ciraolo, 476 U.S. 207 (1986), permitted warrantless aerial
surveillance of a home, and Florida v. Riley, 488 U.S. 445 (1989), lowered the permissible ceiling for aerial warrantless
searches to 400 feet.
The Court justified its decision to permit pretrial preventive detention, in U.S. v. Salerno, 481 U.S. 739 (1987), by
explicitly comparing the war on drugs to a war against another nation, ruling that in times of "war or insurrection . . . the
government's regulatory interest in community safety can . . . outweigh an individual's liberty interest."
Conversely, the law increasingly fails to protect drug suspects from crimes committed against them. Prosecutors, judges
and juries have begun going easy on people -- especially parents -- accused of killing or abusing drug users, according to
Abraham Abramovsky of the International Criminal Law Center at Fordham University Law School in New York.
In one recent New York case, the Bronx district attorney dropped charges against a couple who chained their daughter to a
radiator to prevent her from using drugs. In another, a Queens grand jury refused to indict a mother for murder for
shooting her crack-addicted daughter; it indicted instead for manslaughter. "There's not a flood of these cases yet," said
Abramovsky. "But I do see an emerging pattern."
In such cases, people who use drugs are considered beneath the full protection of the law. Women who are on drugs while
pregnant are likewise demonized. Prosecutors around the country are charging women with everything from drug
trafficking to homicide for using illegal drugs during pregnancy, even though no state assigns statutory penalties for doing
The Center for Reproductive Law & Policy has collected 167 cases of women thus tried, and though many were acquitted
or had their cases dismissed, many others lost custody of their children and many went to prison. Perhaps most
frightening, defense lawyers rarely challenge the validity of the charge and instead convince their clients to plead guilty.
"As a result," says a report by the center, "many women in America are serving jail terms or are on probation for
non-existent crimes."
The mainstream press doesn't seem concerned; in one rather strident dispatch, New York Times columnist A.M. Rosenthal
dismissed women who use drugs as "monsters."
Doctors, however, are becoming increasingly vocal about the intrusion of the punitive drug-war mentality into the field of
medicine. Six prominent medical associations, including the American Medical Association, the American Academy of
Pediatrics and the American Public Health Association, publicly deplore the prosecution of pregnant women.
"Criminal prosecution of chemically dependent women will have an overall result of deterring such women from seeking
both prenatal care and chemical dependency treatment, thereby increasing rather than preventing harm to children and
society," the American Society for Addiction Medicine argues.
The government has steadfastly refused to allow doctors to prescribe marijuana to AIDS and terminal cancer patients who
are relieved of debilitating nausea by no other drug, even though the DEA's own administrative law judge ruled in 1988
that as no long-term health effects and no marijuana deaths had ever been recorded, the drug should be reclassified as a
legal medicine.
The government can't allow marijuana to be given to AIDS patients, Assistant HHS Secretary James O. Mason said in
1991, because that would send a "bad signal" that "this stuff can't be so bad." (This is one policy that might change quickly
under the Clinton administration. Surgeon General-designate Jocelyn Elders told a reporter that she supported allowing the
medical use of marijuana.)
New York City canceled its only clean-needle exchange program for intravenous drug addicts in 1990 because, the health
commissioner said, it would be "sending the wrong message." In New York, some 60 percent of needle-drug addicts are
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HIV-positive; in Liverpool, England, which has a needle-exchange program, the rate of infection approaches zero.
"We're sending a message, all right," says Dr. John Morgan, professor of pharmacology at City University of New York
Medical School. "The message we're sending to IV drug users is: 'We want you to die.'"
Even the use of legal medication is affected by the drug-war mentality. Several recent studies report that complicated
paperwork surrounding opiate painkillers, outright restrictions on the use of opiates and what one doctor calls
"opiophobia" are leading to underuse of legitimate pain medication in hospitals.
This not only increases suffering, it also prolongs surgical patients' recovery, says Dr. C. Stratton Hill of the M.D.
Anderson Cancer Center in Houston, who helped write pain-medication guidelines for the federal Agency for Health Care
Policy and Research. "We confuse the legitimate use of drugs with the illegitimate," he says. "The illegitimate image so
dominates our thinking that we believe anybody who uses them is a criminal."
Despite the evident drawbacks to a policy that criminalizes rather than treats behavior, the end of the Bush administration
probably doesn't mean an end to the drug war. Judging by signals from the Democrats on the subject so far, the
government may become even more punitive toward drug use.
In the first televised presidential debate, Bill Clinton said, "the criminal justice system saved the life" of his half-brother
Roger, who was convicted in 1984 on federal conspiracy and cocaine trafficking charges and sentenced to two years in
prison, of which he served 16 months. It isn't clear whether Clinton thinks his brother's life would have been saved by 10
years in a federal penitentiary, the minimum mandatory penalty he'd get today on the trafficking charge alone.
Although Clinton told the ABA Journal he thinks "a large part of the substance-abuse problem can be best dealt with as a
public health and education issue," his only specific proposals are a "National Police Corps" to put 100,000 more police on
the streets and an archipelago of "boot camps" to straighten out young drug users through "shock incarceration."
As for the Democratic leadership in Congress, the Senate Judiciary Committee chaired by Sen. Joseph Biden, D-Del.,
attacks Bush's drug war for being too soft. In a report titled, "The President's Drug Strategy: Has it Worked?" the Biden
committee argues, no, but only because President Bush hasn't spent enough money on law enforcement, hasn't been tough
enough on drug addicts, hasn't given enough power and money to the military to shift its mission to fighting illegal drugs.
In 194 pages, the report never once uses the words "racism," "AIDS," "poverty," "tobacco," or "civil liberties." As much as
Republicans, Democrats like their drug war rhetoric served hot.
"There is no drug exception to the Constitution," Justices Thurgood Marshall and William Brennan wrote in 1989. But
both, of course, are gone from the Court.
GRAPHIC: Photo, no caption, PHOTO BY WAYNE SLEZAK; Photos 2 and 3, One if by land, two if by sea: Crack busts
by the U.S. Coast Guard in the Caribbean and by an N.Y.P.D. tactical team in Brooklyn, CONTACT PRESS IMAGES/J.B.
DIEDERICH AND KENNETH JARECKE; Photos 4 and 5, More drug trafficking arrests in Brooklyn, while at D.C.
General Hospital in Washington volunteers care for drug-addicted babies, CONTACT PRESS IMAGES/KENNETH
JARECKE AND DAVID BURNETT; Photo 6, In the government's war on drugs, it has spent twice as much on law
enforcement as on treatment and education, CONTACT PRESS IMAGES/KENNETH JARECKE
Copyright (c) American Bar Association, 1993.
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