Prepared Statment of Steven Wisotsky, Professor of Law, Nova 
University Law Center, before the select committee on Narcotics 
Abuse and Control, House of Representatives, Concerning: A 
New Beginning in U.S. Drug Policy, September 29th, 1988, 
pp.410-454.


[T]he history of the narcotics legislation in the country "reveals 
the determination of congress to turn the screw of the criminal 
machinery -- detection, prosecution and punishment -- tighter 
and tighter."
    -- The U.S. Supreme Court in _Albernaz v. United States_,
       450 U.S. 333, 343 (1981)

The chief cause of problems is solutions
    -- Eric Sevareid

    Mr. Chairman, I would like to express my appreciation to the 
Committee for inviting me to participate in this important hearing 
on U.S. Drug Policy.  This hearing could be and should be the 
start of a new beginning in the conception and execution of our 
drug laws.  Indeed, if there is one over-riding theme in my 
prepared statement, it is just that: more than anything else -- 
more than revised laws or the commitment of new resources -- 
we need a careful, comprehensive study of the costs and benefits 
of present drug policy, followed by a clear articulation of the 
fundamental goals sought to be achieved by our drug policy.
    First, let me identify myself for the record.  I am both a 
lawyer and a law professor.  I have been a full-time member of 
the law faculty of the Nova University Law Center since 1975.  
One of my primary areas of specialization is the criminal justice 
system. Since the late 1970s, I have followed developments in 
U.S. drug law.  With the aid of a grant from the Nova Law 
Center in 1982, I published what is to my knowledge the first 
critique of the U.S. War on Drugs, the substance of which is 
clearly indicated by its title, 'Exposing the War on Cocaine: The 
Futility and Destructiveness of Prohibition', 1983 _Wisconsin 
Law Review_ 1305. (1)
    My published work in this field has been cited widely by the 
press, being summarized, for example, in the _Atlantic 
Monthly_ cover story on cocaine, of January 1986. I am most 
widely known as the author of _Breaking the Impasse in the 
War on Drugs_, reviewed in the _New York Times_ Book 
Review Section in December 1986. I have spoken on drug law 
and policy at many panels and conferences in the United States 
and in Europe.
    My prepared statement for this hearing addresses three 
fundamental questions. What is the state of the War on Drugs? 
How did we get there? Where should we go from here?
    The current 'War on Drugs' began on October 2nd, 1982, 
with a radio address by President Reagan to the Nation: "The 
mood towards drugs is changing in this country and the 
momentum is with us. We are making no excuses for drugs‹
hard, soft, or otherwise. Drugs are bad and we are going after 
them".(2)  Twelve days later, in a speech delivered at the 
Department of Justice, the President followed with an 
"unshakable" commitment "to do what is necessary to end the 
drug menace" and "to cripple the power of the mob in 
America."(3)  He cited the "unqualified success" of the Miami 
Task Force on Crime and Drugs as a model to build on.(4)
    It is important to note that President Reagan was not the first 
to declare war on drugs. President Nixon had done the same in 
1971.  In a message to Congress he had described drug abuse as 
a "national emergency", denounced drugs as "public enemy 
number one" and called for a "total offensive".(5)
    First Drug War or not, the President's statement about the 
mood of the country seemed accurate.  At the time of his October 
1982 speeches, some 3,000 parents groups had already 
organized nationwide under the umbrella of the National 
Federation of Parents for Drug Free Youth.(6)  Within the 
government, the House Select Committee(7) and the attorney 
general's Task Force on Violent Crime(8) had urged the 
President to declare War on Drugs.
    The President's October 14th speech called for and got more 
of nearly everything:(9)  1.more personnel -- 1,020 law 
enforcement agents for the Drug Enforcement Agency (DEA), 
Federal Bureau of Investigation (FBI), and other agencies, 200 
Assistant United States Attorneys, and 340 clerical staff;  2.more 
aggressive law enforcement -- creating 12 (later 13) regional 
prosecutorial task forces across the nation "to identify, 
investigate, and prosecute members of high-level drug 
trafficking enterprises, and to destroy the operations of those 
organizations";  3.more money -- $127.5 million in additional 
funding and a substantial reallocation of the existing budget from 
prevention, treatment, and research programs to law 
enforcement programs;  4.more prison bed space -- the addition 
of 1,260 beds at eleven federal prisons to accommodate the 
increase in drug offenders to be incarcerated;  5.more stringent 
laws -- a "legislative offensive designed to win approval of 
reforms" with respect to bail, sentencing, criminal forfeiture, 
and the exclusionary rule;  6.better interagency coordination -- 
bringing together all federal law enforcement agencies in "a 
comprehensive attack on drug trafficking and organized crime" 
under a Cabinet-level committee chaired by the attorney general; 
and 7.improved federal-state co-ordination, including federal 
assistance to state agencies by training their agents.
    Energized by the hardening attitude toward illegal drugs, the 
administration acted aggressively, mobilizing an impressive 
array of federal bureaucracies and resources in a co-ordinated, 
although largely futile, attack on the supply of illegal drugs -- 
principally cocaine, marijuana, and heroin. The administration 
hired hundreds of drug agents and cut through bureaucratic 
rivalries with greater vigor than any administration before it. It 
acted to streamline operations and compel more co-operation 
among enforcement agencies. It placed the FBI in charge of 
DEA and gave it major drug enforcement responsibility for the 
first time in its history.(10)  And, as the centerpiece of its 
prosecutorial strategy, it fielded a network of Organized Crime 
Drug Enforcement Task Forces in 13 'core' cities across the 
nation.(11)
    To stop drugs from entering the country, the Administration 
attempted to erect a contemporary anti-drug version of the 
Maginot Line: the National Narcotics Border Interdiction System 
(NNBIS), an intelligence network designed to co-ordinate radar 
surveillance and interdiction efforts along the entire 96,000-mile 
border of the United States. As part of that initiative, NNBIS 
floated radar balloons in the skies over Miami, the Florida Keys, 
and even the Bahamas to protect the nation's perimeter against 
drug-smuggling incursions.(12)
    The CIA joined the war effort by supplying intelligence about 
foreign drug sources, and NASA assisted with satellite-based 
surveillance of coca and marijuana crops under cultivation.(13)  
The administration also initiated financial investigations, aided 
by computerized data banks and staffed by Treasury agents 
specially trained to trace money-laundering operations.(14)  The 
State Department pressured foreign governments to eradicate 
illegal coca and marijuana plants and financed pilot programs to 
provide peasant farmers with alternative cash crops.(15)  It also 
negotiated Mutual Assistance Treaties to expose 'dirty' money 
secreted in tax-haven nations and to extradite defendants accused 
of drug conspiracies against the laws of the United States.(16)
    The government also literally militarized what had previously 
been only a rhetorical war, deploying the armed forces of the 
United States to "assist" drug enforcement operations. The 
Department of Defense provided pursuit planes, helicopters, and 
other equipment to federal civilian enforcement agencies, while 
Navy E-2C 'Hawkeye' radar planes patrolled the coastal skies in 
search of smuggling aircraft and ships.(17)  The Coast Guard, 
receiving new cutters and more personnel, intensified its 
customary task of interdicting drug-carrying vessels at sea.  
1981 amendments to the Posse Comitatus Act relaxed the 
century-old ban on military enforcement of criminal laws and 
permitted Coast Guard boarding parties to sail on Naval 
warships serving as 'platforms' for Coast Guard 
interdictions.(18)  Finally, for the first time in American history, 
Navy vessels, including a nuclear-powered aircraft carrier, 
began directly to interdict -- and in one case fired upon -- drug 
smuggling ships in international waters.(19)  On a purely 
technical level, the Administration could rightly claim some 
success in focusing the resources of the federal government in a 
historically large and single-minded attack on the drug supply.
    What were the results of this extraordinary enforcement 
program?  It set new records in every category of measurement 
-- drug seizures, investigations, indictments, arrests, 
convictions, and asset forfeitures.  For example, DEA, FBI and 
Customs seized nearly one-half billion dollars in drug-related 
assets in 1986.(20)  DEA arrested twice as many drug offenders 
in 1986 (12,819) as in 1982, and the percentage of arrestees 
constituting high-level traffickers also rose from roughly one-
third to one-half.(21)  DEA, FBI, and other federal agencies 
seized over 100,000 lbs. Of cocaine in 1986.(22)  From the end 
of 1980 to June 30, 1987, the prison population (counting 
felonies only) soared from 329,021 to 570,519. Roughly 40 
percent of new prison inmates now go in for drug offenses.  In 
recognition of this boom, the 1989 budget submission of the 
President seeks a 48 percent increase for the U.S. Bureau of 
Prisons in order to accommodate an anticipated increase in 
prisoners from 44,000 today to 72,000 by 1995.
    Despite the Administration's accumulation of impressive 
statistics, domestic marijuana cultivation took off and the black 
market in cocaine grew to record size. In 1980, the supply of 
cocaine to the U.S. was estimated at 40 metric tons; by 1986 it 
had risen to 140 tons. As a result of this abundant supply and a 
more-or-less stable pool of buyers, prices fell dramatically. In 
1980, a kilo of cocaine cost $50,000 - $55,000 delivered in 
Miami; by 1986, it had fallen to the range of $12,000 - $20,000; 
$14,000 was typical for much of 1988. In 1980-81, a gram of 
cocaine cost $ 100 and averaged 12 percent purity at street level. 
By 1986, the price had fallen to as low as $80 ($50 in Miami), 
and the purity had risen to more than 50 percent.(23)  Around 
the nation, crack was marketed in $5 and $10 vials to reach the 
youth and low-income markets.(24)  More than 22 million 
Americans report having tried cocaine; and roughly 5.8 million 
report having used it during the month preceding the 1985 
National Household Survey.(25) Cocaine-related hospital 
emergencies rose from 4,277 in 1982 to 9,946 in 1985, and then 
to more than 26,000 in 987.(26)
    As if to mock the aggressive efforts of the War on Drugs, this 
rapid market growth occurred in the face of President Reagan's 
doubling and redoubling of the federal anti-drug enforcement 
budget from $645 million in fiscal year 1981 to over $4 billion 
in fiscal year 1987.(27)  Resources specifically devoted to 
interdiction rose from $399 million to $ 1.3 billion, one third of 
the current budget; and military assistance rose from $5 million 
to $405 million,(28) including the provision of (the services of) 
Air Force AWAC'S and Navy E-2C radar planes; Army Black 
Hawk helicopters used in Customs pursuit missions; and the 
Customs Service's own purchases of P-3 radar planes, Citation 
jet interceptors, and Blue Thunder interceptor boats.  DEA 
personnel rose from 1,940 in 1981 to 2,875 special agents in 
1988, with more on request for 1989, along with a 47-position 
air wing for DEA.
    This budgetary expansion seems all the more remarkable 
when compared to the 1969 anti-drug budget of $73.5 
million.(29)  Commenting specifically upon the interdiction 
budget, the Office of Technology Assessment concluded:
 
   Despite a doubling of Federal expenditures on interdiction over 
the past five years, the quantity of drugs smuggled into the 
United States is greater than ever.... There is no clear correlation 
between the level of expenditures or effort devoted to 
interdiction and the long- term availability of illegally-imported 
drugs in the domestic market.(30)

    The social 'return' on the extra billions spent during that time 
has been a drug abuse problem of historic magnitude, 
accompanied by a drug trafficking parasite of international 
dimensions.
    This latter point is crucial. It is not simply that the War on 
Drugs has failed to work; it has in many respects made things 
worse. It has spun a spider's web of black market pathologies, 
including roughly 25 percent of all urban homicides, widespread 
corruption of police and other public officials, street crime by 
addicts, and subversive 'narcoterrorist' alliances between Latin 
American guerrillas and drug traffickers.(31)  In the streets of 
the nation's major cities, violent gangs of young drug thugs 
engage in turf wars and open shoot-outs with automatic 
rifles.(32)  Innocent bystanders are often shot. Corruption 
pervades local police departments and foreign governments. 
Some Latin American and Caribbean nations have been 
effectively captured by drug traffickers.(33 ) Where capture is 
incomplete, intimidation reigns: one third of the Colombian 
supreme court was assassinated in a (suspected) narco-terrorist 
raid. An estimated 60 Colombian justices have been murdered in 
a recent five-year period.(34)
    Of course, these pathologies were foreseeable. They are a 
function of money. Drug law yields to a higher law: the law of 
the marketplace, the law of supply and demand. The naive attack 
on the drug supply through an aggressive program of 
enforcement at each step -- interdiction, arrest, prosecution, and 
punishment -- results in what Stanford Law School Professor 
Herbert Packer has called a "crime tariff'.(35)  The crime tariff is 
what the seller must charge the buyer in order to monetize the 
risk he takes in breaking the law.  It is in short a premium for 
taking risks. The criminal law thereby maintains hyper-inflated 
prices for illegal drugs in the black market.
    For example, an ounce of pure pharmaceutical cocaine at 
roughly $80, just under $3.00 per gram, becomes worth about 
$4,480 if sold in the black market at $80 per diluted gram (at 
50% purity). The crime tariff is thus $4,400 per ounce. This 
type of law enforcement succeeds to some unknown extent in 
making drugs less available -- to the extent (probably slight) that 
demand is elastic or sensitive to price.  But because the crime 
tariff is paid to lawbreakers rather than the Government, it 
pumps vast sums of money into the black market, more than 
$100 billion per year by government estimate.(36) The flow of 
these illegal billions through the underground economy finances 
or supplies the incentives for the pathologies described above: 
homicides, street crime, public corruption and international 
narcoterrorism. If these phenomena were properly costed out, 
one might well conclude that the War on Drugs makes a net 
negative contribution to the safety, well-being and national 
security interests of the American people.
    Confronted by these threatening developments, both the 
public and the politicians predictably react in fear and anger. The 
specter of uncontrolled and seemingly uncontrollable drug abuse 
and black marketeering leads to frustrated reaction against the 
drug trade. The zeal to "turn the screw of the criminal 
machinery -- detection, prosecution, and punishment -- tighter 
and tighter"(37) leads directly to the adoption of repressive and 
punitive measures that aggrandize governmental powers at the 
expense of individual rights.
    This reactive, almost reflexive growth of governmental power 
and the correlative squelching of personal liberty occur as two 
closely related, if not inseparable, phenomena: 1.the 
government's sustained attack, motivated by the perceived 
imperatives of drug enforcement, on traditional protections 
afforded to criminal defendants under the Bill of Rights, and 
2.the gradual but perceptible rise of 'Big Brotherism' against the 
public at large in the form of drug testing, investigative 
detention, eavesdropping, surveillance, monitoring, and other 
intrusive enforcement methods.
    It may be difficult for those not familiar with criminal law and 
procedure to understand the degree to which the War on Drugs 
has disempowered the criminal defendant, especially in drug 
cases. Perhaps by focusing on a few of the most important of 
the many restrictions that have been imposed, one may begin to 
appreciate the severity of the crackdown on the rights of those 
accused of crime.
    First, let us consider pre-trial detention. It is important to 
understand that in the U.S. the law has always favored pre-trial 
release to reinforce the presumption of innocence and to allow a 
defendant to aid counsel in his defense. The Eighth Amendment 
to the United States Constitution prohibits excessive bail; and 
while the cases do not establish a 'right' to bail, the law has 
evolved as if there were a presumptive right to pre-trial release 
on bail (or other conditions) except in capital cases where "the 
proof is evident or the presumption great". This was changed 
radically by the Comprehensive Crime Control Act of 1984,(38) 
which not only authorized pre-trial detention but created a 
statutory _presumption_ in favor
of it in any case in which, _inter alia_, the defendant is charged 
with a drug offense punishable by ten years or more in 
prison.(39)  Although the presumption is rebuttable, in the first 
seven months under the act, the government won 704 motions 
for pre-trial detention while defendants won only 185.(40)  Pre-
trial detention is a severe blow to the morale of a defendant and 
to his ability to assist in the preparation of his defense.(41)
    Another major erosion in the rights of defendants is the more 
permissive use of illegally seized evidence. Since 1914, the 
Fourth Amendment to the U.S. Constitution has been interpreted 
to exclude from use in court evidence obtained by federal law 
enforcement authorities in an illegal search and seizure.(42)  
Many states voluntarily adhered to that ruling, and in 1961 the 
remaining states were required to do so by the decision of the 
Supreme Court in _Mapp v. Ohio_.(43)  But under the relentless 
pressure of drug prosecutions and the frequent attempts of 
Congress to repeal or restrict the exclusionary rule, the Courts 
have whittled away at the protections afforded to individual 
privacy.
    Notwithstanding the independence of the judicial branch, the 
Courts have in effect joined the war on drugs.  Most notably, the 
U.S. Supreme Court gave its approval to just about every 
challenged drug enforcement technique.  For example, the Court 
upheld the power of drug agents to use the airport drug courier 
profile to stop, detain and question citizens without probable 
cause;(44) to subject a traveller's luggage to a sniffing 
examination by drug-detector dogs without probable cause;(45) 
to make warrantless searches of automobiles and closed 
containers therein;(46) to conduct surveillance of suspects by 
placing transmitters or beepers in containers in vehicles;(47) to 
search at will without cause ships in inland waterways;(48) and 
to obtain a search warrant based on an undisclosed informant's 
tip.(49)  The Supreme Court also adopted a 'good-faith 
exception' to the exclusionary rule for evidence seized in 
searches made pursuant to defective warrants.(50)  It authorized 
warrantless searches of open fields and barns adjacent to a 
residence.(51)  It significantly enlarged the powers of police to 
stop, question, and detain drivers of vehicles on the highways 
on suspicion less than probable cause(52) or with no suspicion 
at all at fixed checkpoints or road blocks.(53)  The Court also 
validated warrantless aerial surveillance, that is airplane 
overflights of private property,(54) the warrantless search of a 
motor home occupied as a residence,(55) and the warrantless 
search of the purse of a public school student.(56)  In the realm 
of search and seizure, there is hardly a drug case that the 
government failed to win. Indeed, the Supreme Court in 
_Albernaz_ apparently placed its imprimatur on the turn-the-
screw approach of the U.S. Congress. Thus, the crackdown 
mentality prevails not only in the political realm but, to use 
Madison's phrase, in "the least dangerous branch" as well.
    One further example of the crackdown atmosphere prevailing 
in the U.S. comes from the Anti-Drug Abuse Act of 1986,(57) 
in which Congress not only created new crimes but added to the 
penalties which already existed. The effect of the Act is that drug 
crimes now rank among the most seriously punished offenses in 
the United States Criminal Code. For example, the Act provides 
mandatory minimum penalties of five and ten years in prison 
depending upon drug and weight involved; in the case of 
possession with intent to distribute five kilograms of cocaine, 
the penalty is a minimum of ten years up to a maximum of life 
imprisonment. Even as little as five grams of cocaine base 
require not less than five years in prison and a maximum of 40 
years. In both cases, the range of penalties rises to a minimum 
of 20 years and a maximum of life if death or serious bodily 
injury results from the use of such substances. It should be 
emphasized that these penalties apply to _first-time_ drug 
offenders; those with a prior state or federal drug conviction 
must receive a _mandatory life term_ under these circumstances.
    The fact that these penalties are so severe, more stringent in 
fact than sentences typically meted out to robbers or rapists,(58) 
illustrates one of the themes of this statement: people in the U.S. 
are so fearful and angry about their inability to contain drug 
trafficking that they are resorting to extremist, desperation 
measures. More than one public official has proposed simply 
shooting suspected drug-carrying planes out of the sky.  The 
atmosphere is perhaps best conveyed by the judicial opinion of a 
respected federal judge in Miami who, in an order denying bail 
pending appeal, condemned drug dealers as "merchants of 
misery, destruction, and death" whose greed has wrought 
"hideous evil" and "unimaginable sorrow" upon the nation. 
Their crimes, he wrote, are "unforgivable".(59)  And if drug 
crimes are literally "unforgivable", traditional constitutional and 
statutory protections for individual rights can be discounted or 
discarded. One congressman in fact complained about the extent 
to which legal protections interfered with the prosecution of drug 
cases: "[I]n the War on Narcotics we have met the enemy and he 
is the U.S. code. I have never seen such a maze of laws and 
hangups..."(60)  In that spirit, and in the spirit of the angry 
judge just quoted, the punitive measures I have described, along 
with dozens of others, such as forfeiture of defense attorney's 
fees,(61) have become 'logical' measures in an endless cycle of 
crackdowns and failures.
    Perhaps if these repressive laws applied only to drug 
defendants, who could be dismissed as an alien 'them', few 
would care and fewer still would protest. But this kind of 
reactionary force cannot be contained, cannot apply only to those 
accused of drug crime. In fact, the tentacles of drug enforcement 
have already spread out to reach into the lives of ordinary 
people, not just to those involved in the drug underworld. These 
intrusions into the lives of civilian society take many forms. One 
of the most obvious is the rapid proliferation of mandatory drug 
testing of employees and job applicants in the U.S. Civil 
Service,(62) state and local civil services, and in the private 
sector as well. Some 40 percent of Fortune 500 companies now 
subject their applicants or employees to urinalysis.(63)  
Government surveillance is on the increase in the form of 
wiretaps and the maintenance of 1.5 million or more names in 
NADDIS, a drug investigative data bank. On a more prosaic 
level, the War on Drugs hampers the mobility of travellers, who 
are subjected to road blocks, detained for questioning at airports, 
and whose luggage can be diverted for sniffing by drug-detector 
dogs.
    One of the latest repressive anti-drug initiatives to emerge 
from Washington is called 'zero tolerance', begun by the 
Customs Service on March 21st.  It means, in a nutshell, 
punishing drug users to promote 'user accountability' and to 
reduce 'the demand side of the equation'. One manifestation of 
this policy occurs in the effort to promote federal criminal 
prosecution of persons found in possession of small amounts of 
drugs for which they formerly would have escaped prosecution 
or been referred to local authorities for prosecution. On March 
30th, 1988 Attorney General Meese sent a memorandum to all 
United States Attorneys encouraging the selective prosecution of 
"middle and upper class users" in order to "send the message 
that there is no such thing as 'recreational' drug use..."
    More widely known is the seizure and forfeiture of cars, 
planes, or boats of persons found in possession of even trace 
amounts of illegal drugs; these forfeited assets in effect impose 
massive fines far greater than would ordinarily be imposed upon 
a criminal conviction for drug possession; but as civil forfeiture 
is in _rem_, no conviction or prosecution is required at all. 
Some examples: On April 30th, the Coast Guard boarded and 
seized the motor yacht _Ark Royal_, valued at $25 million, 
because 10 marijuana _seeds_ and two stems were found 
aboard. Public criticism prompted a return of the boat upon 
payment of $ 1,600 in fines and fees by the owner. The 52-foot 
_Mindy_ was impounded for a week because of cocaine dust in 
a rolled-up dollar bill. The $80 million oceanographic research 
vessel _Atlantis II_ was seized in San Diego whent he Coast 
Guard found 0.01 ounce of marijuana in a crewman's shaving 
kit. It was returned also. But a Michigan couple returning from a 
Canadian vacation lost the wife's 1987 Cougar when Customs 
agents found two marijuana cigarettes in the pocket of her 
husband. No charges were filed, but the car was kept by the 
government. In Key West, Florida, David Phelps, a shrimp 
fisherman, lost his 73-foot shrimper to the coast guard who 
found three grams of cannabis seeds and stems aboard. Under 
the law, the boat is forfeitable whether or not Phelps had any 
responsibility for the drugs. Three weeks later, the boat had not 
been returned. There are many other ways, too numerous to 
mention in this statement, that the War on Drugs has choked off 
civil liberties in the U.S.
    In 1987, the United States celebrated the bicentennial of its 
Constitution. The framers of the Constitution were animated by 
the spirit of William Pitt's dictum that "unlimited power is apt to 
corrupt the minds of those who possess it."(64)  They therefore 
created a constitutional structure in which governmental power 
was limited in the first instance and constrained in the second by 
the system of checks and balances. The Bill of Rights, the first 
10 amendments to the Constitution, were added in 1791 to 
further secure personal freedom from governmental oppression. 
The War on Drugs has substantially undermined the American 
tradition of limited government and personal autonomy. Since 
the early 1980s, the prevailing attitude, both within Government 
and in the broader society, has been that the crackdown on drugs 
is so imperative that extraordinary measures are justified. The 
end has come to justify the means. The result is that Americans 
have significantly less freedom than they did only five or six 
years ago.

DEVELOPMENTS IN 1988: POLARIZATION

    Election year politics continues to ratchet the War on Drugs 
machinery tighter and tighter. In June the Administration 
declared its goal of a "drug-free America".(65)  During the 
month of April, the Senate voted 93 to 0 to adopt the Anti-Drug 
Abuse Act of 1988, creating a $2.6 billion special reserve fund 
for anti-drug programs over and above the regular annual budget 
of three-plus billion dollars. (As noted above, the regular budget 
represents a manifold increase in the level of funding that 
prevailed when the war on drugs was declared.) The frustration 
of Congress with drug-producing nations of Latin America, 
crystallized by the stalemate with General Noriega in Panama, 
has produced a number of
controversial proposals involving the threat of sanctions(66) and 
the use of military force to destroy coca crops or to capture 
fugitives from U.S. drug charges. Secretary Carlucci's 
opposition to arrest powers for the military services may tone 
down the final bill, but an expanded military surveillance role 
seems likely. At the state level, the National Guard has already 
been deployed on anti-drug search and destroy missions.
    The President on April 19th "call[ed] upon the House and 
Senate to vote promptly on my bill providing for capital 
punishment when a death results from drug dealing, and when 
a... law enforcement officer is murdered."  In the latest piece of 
fundamentalist-style anti-drug zealotry, the House on September 
22nd voted 375-30 to adopt capital punishment, for a drug 
exception to the exclusionary rule, to deny college student loans 
to anyone convicted of possessing drugs, to impose without trial 
up to $10,000 in "civil fines" for a person caught in possession 
of drugs, and to impose a mandatory five-year prison sentence 
on anyone convicted of possession of crack cocaine. Other "zero 
tolerance" style bills abound. A House Republican Task force 
has introduced a bill calling for confiscation of 25 percent of the 
adjusted gross income and net assets of anyone caught 
possessing illegal substances. It would also cut off federal 
highway funds to states that do not suspend drivers' licenses of 
persons convicted of using drugs.(67)  As we get closer to the 
November election, one can predict with confidence that more of 
these proposals will surface and that their extremist nature will 
increase.
    But at the same time there is movement in the opposite 
direction. Respected journalists and other opinion leaders have 
begun to break ranks with the War on Drugs, in some cases 
suggesting that it be abandoned altogether. Here are some 
notable examples. David Boaz, Vice President for public policy 
at libertarian-oriented Cato Institute, wrote an op-ed piece for the 
_New York Times_ (March 17th) "Let's Quit the Drug War". In 
it he denounced the war on drugs as "unwinnable" and 
destructive to other values such as civil liberties and advocated a 
"withdrawal" from the war. Edwin M. Yoder Jr. of the 
_Washington Post_ Writers Group called the war on drugs 
"dumb" and compared it to the prohibition of alcohol for 
"encouraging and enriching mobsters" (March 4th, 1988). On 
March 10th, 1988, Richard Cohen of the _Los Angeles Times_ 
Syndicate published a piece endorsing the idea of a plan for the 
government distribution of drugs in order to "recognize the drug 
problem is with us to stay -- a social and medical problem, but 
not necessarily a law-enforcement one. We've been making war 
on drugs long enough. It's time we started making sense 
instead." By May and June, articles of this type became a staple 
item in newspapers all over the country as editors hopped aboard 
the "legalization" bandwagon.
    This sample of articles shows the emergence of a significant 
body of opinion opposed to the war on drugs. What is perhaps 
even more significant is that the opposition transcends the 
liberal/conservative split. Traditionally, conservatives have 
advocated strict law enforcement and liberals have been 
identified with a permissive approach to the drug issue. Now 
highly respected conservative spokesmen have also begun to 
dissent from the War on Drugs.
    Even before the recent spate of articles described above, 
prominent conservative columnist William F . Buckley Jr. had 
reversed his position and advocated the legalization of drugs as 
the only effective course of governmental action. Nobel Prize-
winning economist Milton Friedman has made public statements 
advocating more market-oriented approaches to the regulation of 
drugs. _National Review_, the most prominent organ of 
conservative opinion, through its editor Richard Vigilante, 
published a piece (December 5th, 1986) exposing the Anti Drug 
Abuse Act of 1986 as a manifestation of public panic and 
criticizing the intrusiveness of drug testing and other 
enforcement measures. He also rejected the war on drugs as 
intolerant and politically unwise: "Embracing the drug hysteria 
requires a rejection of essential conservative principles." In the 
same issue of NR is an article by Richard C. Cowan, entitled 
'How the Narcs Created Crack', arguing as follows: "Any 
realistic approach to the drug problem must begin with the 
legalization of small scale cultivation and sale of marijuana so 
that it is separated from the other, more dangerous drugs.... We 
need not fear that if we stop the lying and hypocrisy, the 
American people are going to destroy themselves with drugs."
    This debate has captured the attention of the mainstream 
media.(69) Clearly, the challenge to the monopoly status of the 
War on Drugs is gaining ground. Nothing approaching this level 
of dissent has been seen or heard since the War on Drugs 
started.
    The dissent has also begun to spill over to the political sector. 
For example, the _ABA Journal_ (January l st, l 988) reported 
that the New York County Lawyers Association Committee on 
Law Reform published a report advocating the decriminalization 
of heroin, cocaine, and marijuana.  New York State Senator 
Joseph L. Galiber, from a district in the drug-ravaged Bronx, 
introduced on April 18th a bill in the New York State legislature 
to decriminalize the possession, distribution, sale, and use of all 
forms of controlled substances under the aegis of a State-
Controlled Substance Authority. At a speech at the National 
Conference of Mayors and again on a May 10th, 1988, 
broadcast of ABC's 'Nightline', the Mayor of Baltimore called 
for congressional hearings to study the issue. Other mayors and 
a few congressmen supported him. And, surprisingly, 
Congressman Charles Rangel, Chairman of the House Select 
Committee on Narcotics Abuse and Control, scheduled a one-
day hearing for September 29th, 1988, clearly inadequate for the 
task at hand, yet perhaps a harbinger of the future. Even if 
nothing constructive can emerge amidst election year 
maneuvering, at least the genie of change is out of the bottle.
    There are also pressures beginning to come from abroad. For 
example, the attorney general of Colombia said in a telephone 
interview with the _Miami Herald_ (February 23rd, 1988) that 
Colombia's battles against drug-trafficking rings have been a 
failure, calling them "useless". He suggested that legalizing the 
drug trade is something that the government "may have to 
consider" in the future. _The Economist_ magazine ran a cover 
story (April 2-8) called 'Getting Gangsters Out of Drugs', 
advocating the legalized and taxed distribution of controlled 
substances. It followed up with similar commentaries on May 
21st and June 4th.  _El Pais_, the most influential Spanish 
newspaper, also recommended "La legalizacion de la droga" in 
an editorial (May 22nd, 1988).
    What accounts for this trend? Negative experience with the 
War on Drugs certainly plays a role. In the _Structure of 
Scientific Revolutions_, Thomas S. Kuhn argued that "the 
process by which a new candidate for paradigm replaces its 
predecessors" occurs "only after persistent failure to solve a 
noteworthy puzzle has given rise to crisis" (pp.144-45). tI here 
is little doubt that the perception that the War on Drugs is a 
failure at controlling drug supply has spread significantly. 
Uncritical acceptance of the War on Drugs is no longer possible. 
And the perception that it has negative side effects, breeding 
crime, violence and corruption, has spread even to the comic 
pages of the daily newspapers.(69)  In a more serious vein, Ted 
Koppel's "Nightline" broadcast a special three-hour "National 
Town Forum" on the subject of legalization.  Perhaps we have 
already reached Kuhn's stage of "persistent failure and crisis", 
in which the war on drugs has been dislodged as the only 
conceivable paradigm for the control of drugs in the U.S.  What 
now should be done?

- - - -

(1) My more recent publications are: 'Crackdown: The Emerging 
"Drug Exception" to the Bill of Rights', 38 _Hastings Law 
Journal_, 889 (1987); Wisotsky (ed.), 'The War on Drugs: In 
Search of a Breakthrough' (Symposium), 11 _Nova Law 
Journal_ 891 (1987); Wisotsky, 'The Ideology of Drug 
Testing,' 11 _Nova Law Journal_, 763 (1987)

(2) President's Radio Address to the Nation, 18 Weekly Comp. 
Pres. Doc. 1249 (October 2, 1982) [hereinafter Radio Address].

(3) President's Message Announcing Federal lnitiatives Against 
Drug Trafficking and Organized Crime, 18 Weekly Comp. Pres. 
Doc. 1311, 1313-14 (October 14th, 1982).

(4) _New York Times_, October 15th, 1982, p. A20

(5) E. Epstein, _Agency of Fear_ , pp. 173, 179 (1977) Nixon 
consolidated agencies and created DEA as the lead agency in 
drug enforcement.

(6) Gonzales, 'The War on Drugs: A Special Report', 
_Playboy_, April 1982, p. 134.

(7) House Select Committee on Narcotics Abuse and Control, 
H.R. Rep. No. 418, pp. 1-2, 97th Cong., 2d Sess. 50 (1982).

(8) Attorney General's Task Force on Violent Crime, Final 
Report 28 (1981).

(9) The call for the buildup in the size and scope of the federal 
drug enforcement bureaucracy also occurred under the Nixon 
Administration. At the end of June 1968, the Bureau of 
Narcoucs and Dangerous Drugs had 615 agents. By June 1970, 
this number had increased to over 900, with authorization for at 
least 300 more agents during 1971. See H.R. Rep. No. 1444, 
91st Cong., 2d Sess. 18 reprinted in 1970 U.S. Code Cong. & 
Admin. News 4566, 4584.

(10) See 28 C.F.R. [Sections] 0.85(a), 0.102 (1986). Authority 
for federal drug law enforcement is distributed among several 
agencies, including the DEA, the Customs Service, the Coast 
Guard, the FBI, and the IRS. Supporting roles are played by the 
Immigration and Naturalization Service, the CIA, and the 
Department of Defense. See National Drug Enforcement Policy 
Board, _National and International Drug Law Enforcement 
Strategy_ (January 1987).

(11) See 'Organized Crime Drug Enforcement Task Forces: 
Goals and Objectives', 11 _Drug Enforcement_, 6 (1984); 
Maitland, 'President Gives Plan to Combat Drug Networks', 
_New York Times_, October 15th, 1982 [section] A, p. 1.

(12) See Gibson, 'Anti-Smuggling System Would Have CIA 
Links', _Ft. Lauderdale News & Sun-Sentinel_, June 18th, 
1983, [Section] A, p. 1. See also Office of Technology 
Assessment, U.S. Congress, 'The Border War on Drugs', pp. 
33-39 (1987) [hereinafter 'Border War'].

(13) See Coates and DeLama, 'Satellite Spying on Narcotics 
Operations Is a Promising Tool for Drug Task Force', _Miami 
Herald_, June 23rd, 1983, p. 11A.

(14) For a description of Operation Greenback, the prototype 
money-laundering investigation, see Financial Investigation of 
Drug Trafficking: Hearing Before the House Select Comm. on 
Narcotics Abuse and Control, 97th Cong., 1st Sess. 65 (1981).

(15) See International Narcotics Control: Hearings Before the 
House Committee on Foreign Affairs,97th Cong., 2d Sess. 156 
(1982), International Narcotics Trafficking: Hearings Before the 
Permanent Subcomm. on Investigations of the Senate Comm. 
on Governmental Affairs, 97th Cong., Ist Sess 201-02 (1981).

(16) See President's Commission on Organized Crime, 
'America's Habit: Drug Abuse, Drug Trafficking and Organized 
Crime', pp. 412-419 (1986).

(17) Starita, 'Radar Planes to Hunt Drugs in S. Florida', 
_Miami Herald_, March 13th, 1982, p. 1B.

(18) Congress has likened the drug smugglers to an invading 
army, complete with generals, soldiers, and an armada that 
operates over the unpatrolled coastline and unmonitored airspace 
of the United States . See Note, 'Fourth Amendment and Posse 
Comitatus Act Restrictions on Military Involvement in Federal 
Law Enforcement', 54 Geo. Wash. L. Rev. 404, 417 & nn 140-
42 (1986).

(19) Stein, 'Naval Task Force Enlists in Drug War', _Miami 
Herald_, August 24th, 1983, p. 13A. Balmaseda, 'Navy Bullets 
Riddle Pot-Smuggling Ship', _Miami Herald_, July 17th, 1983, 
p.1A

(20) National Drug Policy Board, 'Federal Drug Enforcement 
Progress Report, 1986' Exhibit II-2, pp. 19-20 [hereinafier 
"Progress Report"].

(21) Id., Exhibit II-11, p. 35.

(22) Id., Exhibit III-1, pp. 74-78.

(23) Data on price, purity and supply are taken from the annual 
reports of the National 
Narcotics Intelligence Consumers Committee called 'The Supply 
of Illicit Drugs to the U.S. from Foreign and Domestic 
Sources'.

(24) 'Progress Report', p. 7.

(25) Id., p. 5.

(26) Id., p. 6. 1987 data from 1987 NNIC Report.

(27) Congressional Research Service, Library of Congress, 
'Drug Abuse Prevention and Control: Budget Authority for 
Federal Programs', FY 1986 - FY 1988 [IP 334D] (February 
27th, 1987). The budget dropped to 3 plus billion in FY 88.

(28) Leen, 'Drug War Proving a Costly Failure', _Miami 
Herald_, September 11th, 1988, p. 18A.

(29) Select Committee on Narcotics Abuse and Control, 95th 
Cong., 2d Sess., Congressional Resource Guide to the Federal 
Effort on Narcotics Abuse and Control 250 (Comm. Print 
1976).

(30) 'Border War', p. 3.

(31) These phenomena are described in some detail in _Breaking 
the Imparse in the War on Drugs_ Chs. 7-9.

(32) 'The Drug Gangs', _Newsweek_, March 28th, 1988, p. 
20.

(33) The leader of Panama, General Manuel Noriega, is 
currently under two separate federal indictments for drug 
trafficking offenses. The Chief Minister and the Commerce 
Minister of the Turks and Caicos were convicted in the U.S. of 
drug smuggling charges in 1985. Top officials in Haiti, 
Honduras, and Nicaragua are also under investigation in the U. 
S. 'Oppenheimer, U.S. urged to step up drug fight', _Miami 
Herald_, February 14th, 1988, p. 14A. George Baron, a U.S. 
government witness in the Carlos Lehder Rivas cocaine 
conspiracy trial testified that he paid $3 to $5 million in bribes to 
Bahamian Prime Minister Lynden O. Pindling. Baron testified 
that he paid Pindling $15 for each pound of marijuana smuggled 
through the Bahamas to protect the boats from Bahamian police. 
AP, _Miami Herald_, February 17th, 1988, p. 10A.

(34) See Bin, 'Drug Lords and the Colombian Judiciary: A 
Story of Threats, Bribes and Bullets',5 _Pacific Basin Law 
Journal_, p. 178 (1986).

(35) Packer, _The Limits of the Criminal Sanction_, pp. 277-
282 (1968).

(36) House Select Committee on Narcotics Abuse and Control 
Annual Report for the Year 1984 H.R. Rep. No. 1199, 98th 
Cong., 2d Sess. 9 (1985).

(37) _Albernaz v. United States_, 450 U.S. 333, 343 (1981).

(38) Pub. L. No. 98-473, Tit. II, ch. 1, [section] 203(a), 98 
Stat. 1976 (1984) (codified at 18 U.S.C. [section] 3142) (Supp. 
1986).

(39) 18 U.S.C. [section] 3142(e) (Supp. 1986).

(40) Kennedy, 'Foreword to Symposium on the Crime Control 
Act of 1984', 22 Am. Crim. L. Rev.vi,viii n.4(1985).

(41) Wald, 'Pretrial Detention and Ultimate Freedom: A 
Statistical Study', 39 N.Y.U. L. Rev. 631 (1964).

(42) _Weeks v. UnitedStates_, 232 U.S. 383 (1914). 

(43) 367 U.S. 643 (1961).

(44) _Florida v. Royer_, 460 U.S. 491, 493 (1983); see also 
_UnitedStates v. Montoya_, 473 U.S. 531 (1985); _Florida v. 
Rodriguez_, 469 U.S. 1, 5 (1984). Drug courier profiles are 
based on an informal compilation of traits commonly associated 
with drug smugglers; they have been criticized for allowing 
impermissible intrusions on fourth amendment rights based 
solely on an agent's 'hunch'. See Note, 'Drug Courier Profiles 
in Airport Stops', 14 S.U.L. Rev. 315, 316- 317 & n. 23 ( 
1984). For further criticisms, see Note, 'Search and Seizure: 
Defining the Outer Boundaries of the Drug Courier Profile', 17 
_Creightwon Law Review_ 973 (1985).

(45) _United States v. Plase_, 462 U.S. 696, 706 (1983).

(46) _United States v. Ross_, 456 U.S. 798, 821 (1982); see 
also _Colorado v. Bertine_, 107 S.Ct. 738 (1987).

(47) _United States v. Knotts_, 460 U.S. 276, 282 (1983).

(48) _United States v. Villamonte-Marquez_, 462 U.S. 579, 
593 (1983)

(49) _Illinois v. Gates_, 462 U.S. 213 (1983). Gates replaced 
the principles of probable cause established in _Aguilar v. 
Texas_, 378 U.S. 108 (1964) and _Spinelli v. United States_, 
393 U.S. 410 (1969) with a more loosely structured 'totality of 
the circumstances' test. _Gates_, 462 U.S. at 230.

(50) _United States v. Leon_, 468 U.S. 897, 905 (1984). To 
similar effect are _Illinois v. Krull_, 107 S.Ct. 1160 (1987), 
and _Maryland v. Garrison_, 107 S.Ct. 1013 (1987). For 
criticism of the good faith exceptlon, see I W. LaFave, _Search 
and Seizure: A Treatise on the Fourth Amendment_ [section] 
1.3(c)-(d), at 51, 58-59 (1987) (arguing that the _Leon_ Court 
overestimated the costs of adherence to the exclusionary rule 
based on "intuition, hunches, and occasional pieces of partlal 
and ofien inconclusive data").

(51) _United States v. Dunn_, 107 S.C. 1134 (1987) (barn); 
_Oliver v. United States_, 466 U.S. 170 (1984) (open fields).

(52) _United States v. Sharpe_, 470 U.S. 675 (1985). 

(53) _Texas v. Brown_, 460 U.S. 730 (1983).

(54) _California v. Ciraolo_, 106 S.Ct. 1809, 1813 (1986) 

(55) _California v. Carney_, 471 U.S. 386, 390 (1985). 

(56) _New Jersey v. T.L.O._, 469 U.S. 325, 333 (1985).

(57) Pub. L. No. 99-750, reprinted in 1986 U.S. Code Cong. 
& Admin. News (No. 10A) (codified as amended in scattered 
sections of U.S.C.).

(53) A not untypical example comes from a prominent 1988 
news story. Larry Singleton had been convicted of raping a 
teenager and hacking off the arms of a teenager between wrist 
and elbow. He was convicted in California and given the 
maximum sentence of 14 years and served 8. In Florida, a 
person convicted of possession of 400 grams of cocaine or other 
similar drug trafficking offense would receive a non-parolable 
mandatory term of 15 years. With typical gain time and work 
credits, he might serve approximately 7 years in prison.

(59) _United States v. Miranda_, 442 F. Supp. 786, 795 (S.D. 
Fla. 1977).

(60) Financial Investigation of Drug Trafficking: Hearings 
Before the House Select Comm. on Narcotics Abuse and 
Control, 97th Cong., 1st Sess. 58 (1981) (statement of 
Congressman Hutto).

(61) _United States v. Caplin & Drysdale_, 814 F.2d 905 (4th 
Cir. 1987).

(62) President's Message Announcing the Goals and Objectives 
of the National Campaign Against Drug Abuse, 22 Weekly 
Comp.Pres. Doc. 1040, 1041 (August 4th, 1986).

(63) General Dynamics, General Motors, Greyhound, E.F. 
Hutton, IBM, Mobil, The New York Times, The Teamsters, 
and United Auto Workers are but a few of the enterprises that 
have recendy instituted some type of workplace drug testing. 
Ross, 'Drug Testing at Work Spreading‹and Likely to Spread 
Further', _LA Daily Journal_, June 6th, 1985, p. 4.
    See generally, 'Testing for Drugs in the American 
Workplace', 11 _Nova Law Review_ 291 (1987); Wisotsky, 
'The Ideology of Drug Testing', 11 _Nova Law Journal_ 763 
(1987).
    One rationale for requiring that urinalysis be predicated upon 
individual suspicion is the not-unlikely possibility of a false 
positive result: "Two Navy doctors were almost drummed out of 
the service [in 1984] because they tested positive for morphine, 
the result of having eaten too many poppy seed bagels. Indeed, 
the Navy program has seen huge errors‹over 4,000 men and 
women were recalled at full back pay [in 1985] because they 
were discharged on the basis of a [false positive]." (Ross, 
_supra_.)

(64) Speech, Case of Wilkes January 19th, 1770).

(65) National Drug Policy Board, 'Toward a Drug Free 
America' (1988).

(66) 1n February, the House Foreign Affairs Committee Task 
Force on International Narcotics Control demanded that the State 
Department impose sanctions against Colombia, Peru, Bolivia 
and other nations in order to force them to intensify their drug 
enforcement efforts.

(67) 'The Drug Enforcement Report', June 23rd, 1988, p.2.

(69) _Time_ magazine ran a cover story on the debate called 
'Thinking the Unthinkable' (May 30th, 1988).  _Newsweek_ 
did a similar piece. The _New York Times_ and the _Miami 
Herald_ both ran front page stories on the same subject in May.

(69) The syndicated strip 'Bloom County', for example, 
satirized the issue on at least two separate occaslons. The April 
18th, 1988, strip portrayed a scenario in which a lobbyist for 
smugglers makes contnbutions to anti-drug candidates for 
political office as a way to keep drug prices high. "Nothing 
makes us madder than some liberal talking drug legalization."