HaCKeRz KrOnIcKLeZ 3/HaCKeRz_KrOnIcKLeZ.iso/drugs/letter

Internet Message Format | 1996-05-06 | 29KB

From: [e-mail] (Ronald T Coslick Jr)
Newsgroups: alt.drugs
Subject: the WoD and the Constitution.......
Date: 3 Oct 90 20:02:09 GMT

The following letter was written by Associate Professor of Law
Jeffrey M. Blum of the University of Buffalo School of Law, in
response to a request from a federal court judge, and is a good
summary of many of the things that are wrong with the "war on
drugs."  Any responses may be sent to this account.
________________________________________________________________



                                             May 21, 1990


The Hon. John L. Elfvin
United States District Court
Western District of New York
Buffalo, New York  14202


               Re:  United States v. Anderson, CR-89-210E

Dear Judge Elfvin:

     I have received a request from your Chambers for a
submission in the nature of an amicus curiae brief addressed to
the question:

     "whether today's climate of allegedly rampant importation of
     contraband drugs *  *  *  * justifies a `relaxation' of the
     Constitutional rules which would otherwise control."

I am told that argument on this question is scheduled for June 4,
1990.  Unfortunately my publishing deadlines and commitments at
this time of year preclude me from preparing a full brief.
However, because I appreciate the request and believe it is
critically important for members of the judiciary to be well
informed on this issue, I wish to offer three things in response:
first, the instant letter brief which will simply list proposed
findings of fact that bear centrally on the issue, second, the
enclosed packet of readings that documents some of the proposed
findings and assesses the drug war from a variety of
perspectives, and third, my personal expression of willingness to
speak free of charge regarding any or all of the proposed
findings to any gathering containing influential members of the
Western New York legal community.

     The proposed findings are based upon information I have
gathered from a variety of what I believe to be reputable
sources.  In most cases more than one source is involved.  The
proposed findings are offered in support of the following answer
to Your Honor's question:

     No, today's climate of allegedly rampant importation of
     contraband drugs *  *  *  * does not justify a `relaxation'
     of the Constitutional rules which would otherwise control.
     Rather, it necessitates a strengthening of constitutional
     norms to safeguard reasonable exercises of personal liberty
     from arbitrary and unwarranted invasion, and to prevent
     uncontrolled cycles of hysteria from severely impairing our
     constitutional form of government.


Professorial Amicus' Proposed Findings of Fact


1.  For several years now the United States government's "war on
drugs" has been inspiring a series of decisions substantially
cutting back on established constitutional rights, particularly
in the areas of the fourth, fifth and sixth amendments to the
U.S. Constitution.  See- Wisotsky, Crackdown:  The Emerging Drug
Exception to the Bill of Rights, 38  HASTINGS L. J. 889 (1987).

2.  The drug war has been directed against a variety of very
different illicit substances, some highly addictive and posing a
significant public health problem, and others not.  Over three-
fourths of the illicit drug use in the United States involves
smoking or ingestion of marijuana.  For each of the last ten
years marijuana has accounted for a majority of drug-related
arrests, seizures, property forfeitures, and expenditure of law
enforcement funds.  Because of marijuana's easy detectability,
laws against it have generated an average of close to 500,000
arrests annually in the United States. See- annual household
surveys of the National Institute of Drug Abuse, and annual
reports of the U.S. Department of Justice.

3.  There is not now, nor has there ever been, credible medical
evidence to justify this level of law enforcement effort against
marijuana.  Rather, several presidential panels of experts and a
number of other comprehensive reputable studies have consistently
and unequivocally shown marijuana to be far less addictive, less
toxic, less hazardous to health, less disruptive of family
relationships, less impairing of workplace productivity and less
likely to trigger release of inhibitions against violent behavior
than alcohol. See- Hollister, Health Aspects of Cannabis, 38
PHARMACOLOGICAL REVIEWS 1 (1986) (included in enclosed packet).

4.   Marijuana was first made illegal in the United States in the
early twentieth century largely for two reasons, neither of which
was health-related.  The first publicly known large user group of
marijuana was Mexican-Americans.  Marijuana laws began being
passed in Southwestern states as part of a self-conscious
harassment campaign designed to drive Mexican-Americans out of
the United States and "back" to Mexico.  This harassment campaign
intensified during the 1930's when the depression was making jobs
scarce and causing Anglo-Americans to covet the jobs held by
Chicanos.  For proposed findings 4 through 7, infra, see-
Riggenbach, Marijuana:  Freedom is the Issue, 1980 LIBERTARIAN
REVIEW 18 (included in enclosed packet).


5.   The second important reason for marijuana prohibition was
the covert protectionist activities of paper and synthetic fiber
industries in the 1930's.  These interests, of which the Du Pont
Corporation was the most important representative, wanted to
eliminate possible competition from the hemp plant (marijuana is
comprised of the buds or flowers of the hemp plant), which had
recently become a serious "threat" as a result of the invention
of the hemp decorticator machine.  With such a machine in
existence, competition could have become severe because hemp, in
contrast to trees, is an annual plant with no clearcutting
problem.  Hemp also is believed to produce 4.1 times as much
paper pulp as trees, acre for acre.

6.   Several trends in government converged to make
hemp/marijuana prohibition possible.  The New Deal Court had
recently swept away earlier established doctrines of economic due
process which had limited covert protectionist uses of government
agencies.  Andrew Mellon, the chief financier of the Du Ponts,
had become Secretary of the Treasury and appointed his nephew,
Harry Anslinger, to head the newly created Federal Bureau of
Narcotics.  Anslinger proceeded to misclassify marijuana, which
is a mild stimulant and euphoriant, as a narcotic, and to make
its prohibition his agency's top priority.  In addition, the
recent lifting of alcohol prohibition had confronted a number of
federal agents with the risk of unemployment if new forms of
prohibition could not be instituted.  All these factors
contributed to passage of the Marijuana Tax Act, the initial
federal prohibitory legislation, in 1937.

7.  Throughout the 1930's a lurid "reefer madness" propaganda
campaign was carried on throughout the nation, largely through
the Hearst newspaper chain.  The Hearst chain, whose vertical
integration had caused them to buy substantial amounts of timber
land, had been accustomed to using lurid propaganda campaigns to
sell newspapers since the Spanish-American War in 1898.  The
"reefer madness" campaign was based partly on the knowledge that
Pancho Villa's army had smoked marijuana during the Mexican
Revolution.  It portrayed marijuana as a powerful drug capable of
causing Anglo teenagers to turn instantly into hot blooded,
irrational, violent people, much akin to the "Frito bandito"
stereotype of Mexican-Americans.

8.   The "reefer madness" campaign rested on a large number of
anecdotal stories of violent incidents, almost all of which have
turned out to have been fictitious and traceable to a single
doctor who had worked closely with Harry Anslinger.  One
indication of the stories' falsity is that during the Second
World War and Korean War Anslinger himself shifted from calling
marijuana a violence-inducing drug to calling it a menace that
had the capacity to turn large numbers of young people into
pacifists.  For proposed findings 8 through 11, infra, see Herer,
THE EMPEROR WEARS NO CLOTHES (Los Angeles:  HEMP Publishing, 5632
Van Nuys Blvd., Van Nuys, Calif. 91401).


9.   Since marijuana began becoming popular among the white
middle class in the mid-1960's a number of specious medical
studies alleging great harm from marijuana have been widely
publicized.  The most important of these, and the source of the
widespread myth that marijuana damages brain cells, involved
force feeding rhesus monkeys marijuana smoke through gas masks.
The monkeys consumed in a matter of minutes amounts of smoke far
greater than what human beings would be likely to consume in a
month.  The monkeys suffered substantial brain damage that
appears to have been caused by carbon monoxide poisoning from
smoke inhalation.

10.  Covert economic protectionism appears to have played a
continuing important role in sustaining marijuana prohibition
during the last decade.  Pharmaceutical companies, possibly
alarmed at the increasingly widespread use of marijuana as a
versatile home remedy, provided most of the funding in the late
1970's and early 1980's for a network of "parents' groups against
marijuana."  By far the largest sponsor of the Partnership for
Drug-free America, which blankets the airwaves with anti-
marijuana commercials, has been the Philip Morris Company.
Philip Morris owns several brands of tobacco cigarettes and is
the parent company of Miller Beer, and possibly some other brands
of beer as well.

11.  Partnership commercials, while exaggerated but to some
degree truthful about cocaine, have been uniformly uninformative
about marijuana.  They have ranged from merely casting negative
stereotypes of marijuana users as lazy and shiftless to being
instances of outright (and possibly legally actionable) fraud.
One widely aired commercial compares the brainwaves of "a normal
teenager" and "a teenager under the influence of marijuana."  The
latter was later admitted by Partnership officials to have been
the brain waves of a person in a deep coma.

12.  Largely as a result of such government and corporate-
sponsored propaganda campaigns a majority of people have come to
support an across-the-board crackdown on illicit drug use and
sales.  Due to this political climate a number of harsh statutes
have been passed during the last five years and these, combined
with various "relaxations" of constitutional restrictions on law
enforcement activities, have resulted in large numbers of young
people receiving ten, fifteen and twenty-year mandatory-minimum
sentences for transport and sale of marijuana.  Thousands of
people have forfeited ownership of their farms, homes, shops and
vehicles for growing, and in some instances merely possessing,
marijuana.  See generally- the Omnibus Anti-drug and Anti-crime
Acts of 1984, 1986 and 1988.

13.  Because of this wholly unjustified crackdown on marijuana,
people around the country have come to view the term "Your Honor"
as connoting a person of ill will, mean spirit and low principle.
"The Government" has come to connote an organization that is both
very inefficient in its processing of information and very casual
in its willingness to disseminate falsehoods with abandon.

14.  The attempt to portray  marijuana use as an emergency that
requires a serious crackdown on users strikes most of the
nation's thirty million pot smokers as utterly ludicrous.
Marijuana is not known to have caused even a single death.  Yet
there are longitudinal studies showing that people who have
smoked marijuana frequently for decades appear normal, healthy
and have life expectancies as great or slightly greater than
those of nonsmokers.  See- Hollister, supra; Herer, supra.

15.  By contrast, alcohol is believed to be a primary cause of
death for approximately 120,000 to 150,000 Americans each year.
Tobacco is believed to cause 320,000 to 390,000 deaths annually.
Current government policies allow alcohol to be advertised
openly, and even to be promoted by advertising strategies aimed
largely at young people.  Current government policies allow
tobacco to be advertised, although not over radio and television;
policies also provide for large government subsidies to tobacco
companies and for retaliatory measures against third world
countries which limit the sale of American cigarettes in their
domestic markets.  Statistics in proposed findings 15 and 16,
infra are for 1987 and are taken from the federal government's
Bureau of Morality Statistics and National Institute of Drug
Abuse; see also,- Trebach, THE GREAT DRUG WAR (1987).

16.  The total number of deaths annually attributable to overdose
or poisoning from all illicit drugs combined is between 3,800 and
5,200, or approximately one percent of the number who die
annually from alcohol or tobacco-induced illnesses.  Of the
overdose deaths it is believed that about 80% of these would be
avoided if the illicit substances, instead of being obtained on
the black market where they are frequently contaminated or of
unknown purity, were dispensed lawfully in some sort of
controlled maintenance program.  See- Ostrowski, Thinking About
Drug Legalization (Cato Institute 1989) at 14-15

17.  By far the largest number of deaths associated with illicit
drug use will be coming from the AIDS plague.  It is estimated
that there are now about 100,000 intravenous drug users in New
York City who have become infected and would test HIV positive as
a result of blood contamination caused by use of shared needles
or works.  See- Lazare, How the Drug War Created Crack, VILLAGE
VOICE, January  23 (1990) (included in enclosed packet).

18.  In countries such as Holland where greater tolerance is
accorded to intravenous drug users, such users obtain clean
needles and about three-fourths of them receive medical care and
counseling.  As a result, the I.V. drug use contribution to AIDS
in the Netherlands has been small, constituting only 8% of the
country's 605 AIDS patients.  In the United States the comparable
figures are 26% of a much larger number of AIDS patients.
Engelsman, The Dutch Model, NEW PERSPECTIVES QUARTERLY (Summer
1989) at 44-45.

19.  It is estimated that the 100,000 HIV-positive intravenous
drugs users in New York have infected 25,000 sexual partners and
caused 4,000 infants to be born infected with the AIDS virus.  It
is also expected that blood contamination through use of
intravenous drugs will be providing a major pathway for AIDS to
spread into the American heterosexual population.  For judges,
politicians and retirees past the age of rampant sexual activity,
this public health problem may appear remote and is susceptible
to being ignored in the interests of continuing a morally
satisfying crusade.  However, to Americans now under the age of
30 this is a tragedy of enormous proportions.  See Lazare, supra.

20.  A common reason given for stepped-up anti-drug enforcement
is the violence associated with illicit drug use.  However,
neither marijuana nor psychedelic drugs nor heroin or other
opiates induces violent behavior.  To the extent such were
legally available and used in place of alcohol, which is
violence-inducing and associated with 65% of all murders, the
effect would be to make the society less violent overall.

21.  Like alcohol crack and other forms of cocaine will sometimes
encourage violent behavior.   However, the vast majority of drug-
related violence comes not from the effects of the drugs, but
>from their illegality and the resulting lack of access to
peaceful means of dispute resolution.  A  study of drug-related
homicides in New York recently found 87% of those involving
cocaine to stem from territorial disputes and debt collection or
deals gone awry.  Only 7.5% were related to the behavioral
effects of drugs, and of these, two-thirds involved alcohol
rather than cocaine.  Summarized in Glasser, Talking Liberties:
Taboo No More?, CIVIL LIBERTIES (Fall/Winter 1989) at 22.

22.   Attempts to create a drug-free America through stepped-up
campaigns of border interdiction and crop eradication have had no
substantial success.  Various authorities agree that only about
ten percent of the cocaine coming into the United States is being
successfully interdicted and this has made no difference in the
drug's availability because producing countries generate vastly
more than enough cocaine to satisfy the U.S. market.  Similarly,
the massive Campaign Against Marijuana Planting (CAMP) has given
marijuana growers a useful pretext for raising prices and has
encouraged a more oligopolistic market structure, but the total
amount of marijuana being grown has increased rather than
decreased.  In effect,  law enforcement winds up producing a kind
of artificial price support system for the growers and
manufacturers of illegal drugs.  See- Thompson, "California's
Unwinnable War Against Marijuana," Wall Street Journal, January
8, 1990.  Given the loss of tax revenues and the large crime
problem generated  by prohibition of drugs, the only possible
benefit of such a system would be its progressive redistribution
of wealth from wealthier users to poorer growers and sellers.

23.  The most significant effects of "zero tolerance" and stepped
up enforcement campaigns have been to encourage distributors to
switch from delivering bulkier and more detectable drugs, such as
marijuana, to more concentrated--and also more dangerous--ones
such as cocaine and its derivative, crack.  As a result, during
the 1980's the price differential between cocaine and marijuana
by weight dropped from about 70:1 to about 3:1, and crack use
became widespread among the inner city poor.  This parallelled
the phenomenon during alcohol prohibition where gin became more
plentiful and cheaper than beer.  See- Lazare, supra; Cowan, A
War Against Ourselves, NATIONAL REVIEW (December 5, 1986)
(included in enclosed packet).  Unless one takes the position
that illicit drug use generally poses no significant harm, one
must confront the fact that encouraging users to switch from
marijuana to the vastly more addictive crack has posed a serious
detriment to the public health.  By contrast, the open
legalization of marijuana in Holland caused no significant
increase in rates of pot smoking, but rather a sharp drop in
heroin use among the young because they no longer had to obtain
marijuana from the same distributors who sold heroin.
Engelsman, supra.

24.  Notwithstanding its general ineffectiveness in curbing
illicit drug use, the war on drugs may be posing a significant
civil liberties threat to the American people generally.  The
nature of the threat differs according to class position.  For
the urban underclass and particularly its members under the age
of thirty, this threat takes the form of a greatly elevated
likelihood of imprisonment.  Largely because of recurring drug
wars, rates of imprisonment in the U.S. are projected to have
risen more than four-fold between 1970 and 1994.  See- National
Council on Crime and Delinquency, The 1989 NCCD Prison Population
Forecast:  The Impact of the War on Drugs (December 1989)
(included in enclosed packet).  Given the projected expansions of
prison population, the heavily (and increasingly) nonwhite
composition of persons imprisoned on drug charges, the plans to
require all prison inmates to work and for their products to be
made more readily available for profitable sale in the private
sector, see- enclosed Gramm-Gingrich National Drug and Crime
Emergency Act, it is possible that we may be moving toward a
partial reimplementation of the institution of Negro slavery
under the aegis of the criminal justice system.  It is already
the case that the United States ranks either first or second
(behind the Republic of South Africa) in the world in per capita
imprisonment, and that there are more black males in prison than
in college, graduate and professional school combined.

25.  For the white middle class, and particularly those segments
of it in and around universities, the civil liberties threat
takes a different and more subtle form.  In this regard the
seemingly arbitrary inclusion of marijuana among the list of
targeted substances is crucial.  During the 1970's marijuana
gained widespread acceptance, particularly in and around
university campuses, and was even proposed for nationwide
decriminalization by President Carter.  Because of its
superiority over alcohol as a facilitator of creativity and
intellectually engaged lifestyle, marijuana has come to be used
with some regularity by a substantial proportion of writers,
artists, musicians, teachers and others who might be thought of
as avant-garde elements of society.  A nationwide estimate of
about one-third of university students and faculty under the age
of 45 using marijuana would not be unreasonable.  Included among
this population of pot smokers is a high proportion of persons
inclined to favor political change and hence likely to be viewed
by the government as dissident elements during times of
heightened political discord.  Recent passage of laws, such as
the 1988 Anti-drug Abuse Amendments Act, which establish harsh
penalties for possession of any amount of any drug anytime during
the preceding five years--e.g., $10,000 fines, cutoff of all
governmental benefits, commitment to "treatment" facilities--
creates a mechanism by which Soviet-style, KGB-type surveilence
and selective repression of dissenters could be implemented in a
way that circumvented established first amendment protection.
The likelihood of this occurring at some future time is enhanced
by provisions of the 1988 Act which divert monies in the
Department of Justice Assets Forfeiture Fund from general
federal revenues into a special account for "program-related
expenses."  The primary uses of money in this fund appear to
include purchase of computerized equipment for record-keeping on
the general population (the D.E.A. had been keeping files on 1.5
million people as early as 1984) and purchase of evidence and
payment to informants.  As of the end of 1989 the amount of money
and property in this fund was valued at approximately one billion
dollars.  See- Belkin, "Booty from Drug Cases Enriches Police
Coffers," New York Times, January 7, 1990 at A 19.  It is
reasonable to expect that such a system, once in place, could be
used selectively to intimidate and quell political dissent,
thereby impairing the society's capacity to adapt intelligently
to a rapidly changing world.

26.  Urine testing, which is now employed in some form by a
majority of Fortune 500 companies, as well as by the military and
significant sectors of the government, poses a civil liberties
threat of a different type.  Because marijuana is the most easily
detectible substance for the tests, showing up as "positive" for
up to four to six weeks after use, it accounts for 90% of the
positive results on urine ("EMIT") tests.  See- "Test Negative,"
SCIENTIFIC  AMERICAN, March 1990 at 18.  (included in enclosed
packet).  As a result, and due in no small measure to various
"relaxations" of fourth amendment rights against unreasonable
search and seizure, employers are now placed in the position of
acting as an enforcement arm of federal government, particularly
in relation to some of the government's most arbitrary and
socially destructive laws.  The situation where  government and
major employers unite to exert plenary control over how citizens
behave in their off-duty leisure hours is one of the hallmarks of
a totalitarian society.  See generally- Hoffman & Silvers, STEAL
THIS URINE TEST (1987).

27.  During the last few months a number of my students have
informed me that their elementary school children have been
instructed in the Buffalo public schools to turn their parents in
to the police if they detect marijuana smoke or other evidence of
illicit drugs.  When I was in elementary school we were taught
that such practices occurred only in totalitarian societies, and
that in order to ensure that they would not occur here we should
be prepared to fight a war against the Soviet Union.   It would
be sadly ironic if, in the wake of their country's "victory" in
the Cold War Americans came to suffer some of the negative
consequences associated with life under totalitarian regimes.

28.  None of the serious threats to civil liberties mentioned in
proposed findings 24 through 27, supra, is in any sense
necessary.  They stem simply from misguided policies.  A major
improvement in our current situation could be achieved simply by
returning to enforcement strategies as they were practiced prior
to 1980.  Light handed enforcement directed solely against street
dealing of the more dangerous and addictive drugs (e.g., refined,
concentrated forms of cocaine and heroin) does about as much to
limit dissemination of these through the population as does the
current drug war strategy, and it does so at a small fraction of
the social and economic costs.  See generally,- Wisotsky et. al.,
The War on Drugs:  In Search of a Breakthrough, 11 NOVA L. REV.
878 (1987).

29.  Further improvement could be achieved by legalizing or
securely decriminalizing marijuana, thereby allowing law
enforcement efforts to be concentrated on the genuinely addictive
drugs and tax revenues to be raised which could fund treatment
and maintenance centers for persons addicted to such drugs.
Serious efforts should be made to investigate current claims that
widespread cultivation of hemp for non-drug uses would produce
enormous ecological benefits by providing alternative sources of
paper, fabric and fuel.  If these claims are borne out, then
government price-supports and subsidies for tobacco should be
transferred to the cultivation of hemp, particularly for its non-
drug uses.  Curiously, widespread cultivation of hemp over
substantial regions of the United States was being advocated by
Presidents Washington and Jefferson shortly after the birth of
the Republic.  See- Herer, supra.

30.  While there are good reasons for society to be very cautious
about allowing open, free market legalization of heroin and
cocaine, see- Wilson, Against the Legalization of Drugs,
COMMENTARY (February 1990) at 21 (contained in enclosed packet),
a government-controlled system of maintenance and treatment for
certified drug-dependent people would be far preferable to the
current system of black market distribution which generates
widespread crime, escalating rates of incarceration and a
substantial hidden subsidy for organized crime.  Whatever
disincentives were needed to keep large numbers of people from
choosing to become addicts (e.g., making addicts wait in line for
two hours to get their doses) could be built into the system of
distribution.  Such a system worked quite well in Great Britain
until the issue became too politicized for it to continue.  See
Trebach, supra.

31.  Psychedelic drugs pose greater hazards than marijuana, but
less than those of addictive drugs like heroin and cocaine.
While some psychedelics, such as PCP, may be inherently dangerous
and thus appropriately prohibited altogether, most can be taken
safely by most people.  The problems posed by LSD, for example,
in some ways resemble those presented by scuba diving.  Each is
seen as a form of exploration that opens new vistas.  Hence
participants often find the activity enormously stimulating and
inspiring.  Each activity poses a small but significant risk of
serious personal harm, these being death for one and aggravation
of pre-existing states of mental instability for the other.
Untrained, unsupervised use of unchecked substances or equipment
are ill-advised in both cases.  Conversely, though, a government-
orchestrated campaign of persecution for either group of
explorers is likely to be viewed as barbaric by knowledgeable
persons.  In each case a premium should be put on devising social
policies that minimize the hazards of the activities in question.

               *  *  *  *  *


     Thank you, Judge Elfvin, for the opportunity to place these
proposed findings of fact before the Court.  I believe Your Honor
can discern the relationship between the information they present
and the answer proposed in response to the Court's question.  If
I may be of any further assistance, please do not hesitate to
call my secretary at [phone].  I do, however, expect to be
out of town during the period of May 21, 1990 to June 10, 1990.



                                        Sincerely,



                                        Jeffrey M. Blum
                                        Associate Professor of
Law

cc:  The Honorable John T. Curtin
     The Honorable Richard J. Arcara
     The Honorable Robert L. Carter
     The Honorable John J. Callahan
     The Honorable M. Dolores Denman
     The Honorable John H. Doerr
     The Honorable Samuel L. Green
     Susan Barbour, Esq.