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. (continued) TOWARD A NEW BEGINNING IN DRUG CONTROL One historically tested model of exploring policy reform is the appointment of a National Study Commission of experts, politicians and lay leaders to make findings of fact, canvass a full range of policy options, and recommend further research where needed. The precedent set by the National Commission on Marijuana and Drug Abuse in the early 1970s offers a model that might usefully be emulated in many respects. At the very least, a National Commission performs a vital educational function: its public hearings and attendant media coverage inform the public, bringing to their attention vital facts and a broader array of policy options. The level of public discourse is almost certain to be elevated. Only those who prefer ignorance to knowledge could possibly oppose the commission process. What should be the agenda of such a commission? Its over- riding goal should be to develop policies directed toward the objectives of 1.reducing drug abuse and 2.reducing the black- market pathologies resulting from the billions in drug money generated by drug law enforcement. In pursuit of these dual goals, the commission's study might benefit from adherence to the following five points: I. DEFINE THE DRUG PROBLEM What exactly is the problem regarding drugs in the U.S.? The absence of an agreed-upon answer to this question is one of the primary sources of incoherence in present law and policy. People now speak of "the drug problem" in referring to at least five very different phenomena: 1. the mere use of any illegal drugs; 2. especially by teenagers; 3. the abuse of illegal drugs; 4. drug-induced misbehavior that endangers or harms others, such as driving while impaired; and 5. drug-trafficking phenomena (crime, violence, and corruption) arising from the vast sums of money generated in the black market in drugs. This confusion in the very statement of the problem necessarily engenders confusion in solving it. The "drug problem" as Edward Brecher reminds us in his classic _Licit and Illicit Drugs_ is itself a problem. Therefore, it does not and cannot lead to the formulation of useful solutions. It would be a real breakthrough if the Congress or the next President would generate a meaningful statement of the "drug problem". Otherwise, we are condemned to confirm the truth of Eric Sevareid's quip that the chief cause of problems is solutions. II. STATE YOUR GOALS A creative definition or redefinition of the drug problem would of itself carry us toward a (re)statement of goals. Rational policy-making is impossible without a clear articulation of the goals sought to be achieved. Part of that impossibility arises from the inconsistency between, for example, pursuit of existing goal number one by an attack on the drug supply and pursuit of goal number five, the suppression of drug money. Pursuit of the first creates a crime tariff which makes the pursuit of the last more or less impossible. Instead, the result of drug enforcement is a black market estimated by the government to be over $100 billion per year, money that funds or gives rise to homicidal violence, street corruption by addicts, corruption of public officials and international narco-terrorism. It is therefore essential to distinguish between problems arising from drugs and problems arising from drug money. For example, how much criminality is attributable not to the psychopharmacology of drugs but to the excessive prices intentionally caused by the prohibition of drugs? Rational policy-makers have to distinguish between the two and acknowledge the trade-offs between the two lines of attack. III. SET REALISTIC AND PRINCIPLED PRIORITIES BASED ON TRUTH The suppression of drugs as an end to itself is frequently justified by arguments that drugs cause addiction, injury, and even death in the short or long run. Granted that all drug use has the potential for harm, it is clear beyond any rational argument that most drug use does not cause such harm. DEA Director John Lawn to the contrary ("Drugs are illegal because they are bad"), drugs are not harmful _per se_. Exposure to drugs is not the same as exposure to radioactive waste.(70) Rather, the overwhelming majority of incidents of drug use are without lasting personal or social consequence, just as the overwhelming majority of drinking causes no harm to the drinker or to society. Accepting the truth of that premise means that not all drug use need be addressed by the criminal law, and that society might actually benefit from a policy of benign neglect respecting some forms of drug use. I have in mind the Dutch model, where nothing is legal but some things are simply ignored, cannabis in particular. NORML estimates that there are approximately one half-million arrests per year for marijuana, almost all for simple possession or petty sale offenses. Depending upon the age of consent chosen, most of these arrests could be eliminated from the criminal justice system, thereby achieving a massive freeing of resources for the policing of real crime. Because we live in a world of limited resources, it is not possible to do everything. It is therefore both logical and necessary to make distinctions among things that are more or less important. I have in mind at least five basic dichotomies: 1. drug use by children (top priority) versus drug use by adults (low priority); 2. marijuana smoking (low priority) versus use of harder drugs (higher priority); 3. public use of drugs (high priority) versus private use of drugs at home (low priority); 4. drug consumption (no priority) versus drug impairment (high priority); 5. occasional use (low priority) versus chronic or dependent use (higher priority). From these general criteria for drug policy, I would commend to the National Commission five specific goals for an effective, principled drug policy: 1._Protect the Children_. I think this priority is self-evident and needs no discussion. I would simply add that this is the only domain in which "zero tolerance" makes any sense at all and might even be feasible if enforcement resources were concentrated on this as a top priority. 2._Get Tough on the Legal Drugs_. It is common knowledge that alcohol (100,000 annual deaths) and tobacco (360,000 annual deaths) far exceed the illegal drugs as sources of death, disease, and dysfunction in the U.S. Everyone knows that alcohol and tobacco are big business -- the advertising budget alone for alcohol runs about $2 billion a year -- and, what is worse, the states and federal government are in complicity with the sellers of these deadly drugs by virtue of the billions in tax revenues that they reap. I am not, however, suggesting prohibition of these drugs. That is wrong in principle and impossible in practice, as experience teaches. Nonetheless, there are more restrictive measure that can and should be undertaken. One is to get rid of cigarette vending machines so that cigarettes are not so readily available to minors. A second is to require or recommend to the states and localities more restrictive hours of sale. A third is to levy taxes on these products that are consistent with their social costs -- billions of dollars in property damage, disease, and lost productivity.(71) Those costs should be financed largely by the sale of these products; at present prices, society is clearly subsidizing those products by providing police, fire, ambulance services for road accidents; medicare and medicaid reimbursement for therapy, surgery, prosthesis or other medical care; and many other hidden costs effectively externalized by the industries from smoker and drinker to society as a whole. Precise numbers need to be derived from studies, but I wouldn't be surprised to find cigarettes at, say, $10 a pack and hard liquor at, say, $30-$50 a bottle to be priced more consistently with their true social costs. Such taxes would have the additional salutary effect of reducing the consumption of these dangerous products to the extent that their demand is elastic. 3. _Public Safety and Order_. Here we need policies directed toward protection of the public from accident and injury on the highway, in the workplace and from unruly disruptions in public streets, public transport, parks and other gathering places. Programs specifically tailored to accomplish this more focused goal make a lot more sense than futile and counter productive "zero tolerance" approaches. Street-level law enforcement practices need to be reviewed to see to what extent they may actually encourage hustling drugs in the street to avoid arrests and forfeitures that might follow from fixed points of sale. Promotion of driving and workplace safety require more knowledge. Nothing should be assumed. Drug use, as the Air Force's and Freud's examples show, does not automatically mean that a pilot or driver is impaired. Even with marijuana there is ambiguous evidence as to its effect on motor co- ordination.(72) Responsible research is required. 4. _Protect Public Health_. The emphasis here is on the word "public". Policy should be directed toward 1. treatment of addicts on a voluntary basis and 2. true epidemiological concerns such as the use of drugs by pregnant women and the potential for transmission of AIDS by I.V. drug users. Addiction treatment is now shamefully underfunded, with months-long waiting lists in many cities. Purely individualized risks are not in principle a public health matter and are in any case trivial in magnitude compared to those now accepted from alcohol and tobacco. Judge Young found no known lethal dose of marijuana. Even with cocaine, which has lethal potential, less than 2,000 deaths per year result even though billions of lines or puffs of cocaine are consumed every year. (Other long-term harms may result but are not systematically known at this time.) In any event, harmfulness is not the sole touchstone of regulation; the requirements of goal number five, listed below, demand considerable deference to individual choice in this domain. 5. _Respect the Value of Individual Liberty and Responsibility_. The current administration's goal of a drug- free America, except for children, is both ridiculous -- as absurd as a liquor-free America -- and wrong in principle. This is not fundamentalist Ayatollah Land after all. A democratic society must respect the decisions made by its adult citizens, even those perceived to be foolish or risky. After all, is it different in principle to protect the right of gun ownership, which produces some ten to twelve thousand homicides per year and thousands more non-fatal injuries? Is it different in principle to protect the right of motorcyclists, skydivers or mountain climbers to risk their lives? Is it different to permit children to ride bicycles which "cause" tens of thousands of crippling injuries and deaths per year? To say that something is "dangerous" does not automatically supply a reason to outlaw it. Indeed, the general presumption in our society is that competent adults, with access to necessary information, are entitled to take risks of this kind as part of the right to life, liberty, and the pursuit of happiness. Why are drugs different? It would be truly totalitarian if the government could decide these matters. After all, if the government is conceded to have the power to prohibit what is dangerous, does it not then have the power to compel what is safe? More specifically, if one drug can be prohibited on the ground that it is dangerous to the individual, would it then not be permissible for the government to degree that beneficial doses of some other drug must be taken at specified intervals. The freedom of American citizens has already been seriously eroded by the War on Drugs.(73) More civil liberties hang in the balance of the 1988 Omnibus Anti-Drug Abuse Act pending in Congress and further legislation in years to come. Is the defense of Americans from drugs to be analogized to the defense of the Vietnamese from Communism, that it was necessary to destroy the city of Hue in order to save it? The National Commission should give serious weight to this value in its policy recommendation. IV. FOCUS ON THE BIG PICTURE Present drug policy suffers from a kind of micro-think that borders on irresponsibility and is sometimes downright silly. This typically manifests itself in proud administration announcements or reports to congressional committees of a new initiative or new accomplishment without regard to its impact on the bottom line. The examples are endless -- a joint strike force with the government of the Bahamas; shutdown of a source of supply; the Pizza Connection case, the largest organized crime heroin trafficking case ever made by the federal government; a new bank secrecy agreement with the Caymans; a new coca eradication program in Bolivia or Peru, and so on. But none of these programs or "accomplishments" has ever made any noticeable or lasting impact on the drug supply. Even now, as the Godfather of Bolivian cocaine resides in a Bolivian prison, is there any observable reduction in the supply of cocaine? The lack of insistence that enforcement programs should make a difference in the real world produces fatuous reports like this 1979 report by GAO to the Congress: "Gains made in Controlling Illegal Drugs, Yet The Drug Trade Flourishes."(74) In what sense is it meaningful to say that gains are made if the bottom line grows worse and worse? This is reprehensible doubletalk or Newspeak that should not be tolerated by responsible public officials. The whole drug enforcement enterprise needs to be put on a more businesslike basis, looking to the bottom line and not to isolated "achievements" of the war on drugs. In fact, the investor analogy is a good one to use: if the war on drugs were incorporated as a business enterprise, with its profits to be determined by its success in controlling drug abuse and drug trafficking, who would invest in it? Even if its operating budget were to be doubled to $6 billion per year, or doubled again to $12 billion per year, would it be a good personal investment? If not, why is it a good social investment? This kind of hard-headed thinking is exactly what is lacking and has been lacking throughout the War on Drugs. No attention has been paid to considerations of cause and effect, or to trade-offs, or to cost-benefit analysis. New anti-drug initiatives are not subjected to critical questioning: what marginal gains, if any, can be projected from new programs or an additional commitment of resources? Conversely, how might things worsen? For example, many law enforcement officials believe that the coast guard's "successful" interdiction of marijuana coming from Jamaica and Colombia in the early 1980s had two negative side-effects: the substitution of domestic cultivation of more potent marijuana in California (and throughout the U.S.) and the diversion of smugglers into more compact and more readily concealable cocaine. Was that interdiction initiative therefore truly successful? Weren't those side-effects reasonably foreseeable? There are other examples. Drug gangs are probably far more ruthlessly violent today than in the 1970s because they have learned to adapt to aggressive law-enforcement methods. The friendly governments of Colombia, Peru, Bolivia are far weaker today, far more corrupt, and far more subject to narco-terrorist subversion because of similar adaptations there by the drug cartel and its associates. Has our national security been thus advanced by the War on Drugs? For these reasons, it is important to abjure meaningless, isolated "victories" in the war on drugs and to focus on whether a program or policy offers some meaningful overall impact on the safety, security and well-being of the American people. In this respect, does it really matter that the DEA has doubled the number of drug arrests from 6,000 to 12,000 during the 1980s? Or that the Customs Service has dramatically increased its drug seizures to over 100,000 pounds of cocaine? Or that kingpins like Carlos Lehder Rivas have been convicted and imprisoned for life plus 135 years? Might it not be that the resources devoted to those anti-drug initiatives were not merely wasted but actually counterproductive? Similarly, it is critical to pay scrupulous attention to cause and effect. Throughout the war on drugs, administration officials have been making absurd claims about the effects of anti-drug policies. Recently President Reagan asserted that the War on Drugs is working. His evidence? Marijuana smoking is down to 18 million per year and experimentation with cocaine by high school seniors in the University of Michigan survey declined by 20 percent. Everyone trained in logic knows that this is the fallacy of _post hoc ergo propter hoc_. But one need not be trained in logic to realize that there is no provable correlation between law enforcement initiatives and levels of drug consumption. Indeed, the same University of Michigan survey shows that marijuana consumption peaked in 1979, three years before the War on Drugs even began. Cocaine is purer, cheaper, and more available than ever before. If use is down, it is not because of successful law enforcement. Most categories of drug use are down and will most likely continue to go down as people become more educated and more concerned about health and fitness, fueled in some immeasurable degree by media reports of celebrity overdose deaths such as those of David Kennedy, John Belushi, Len Bias, and Don Rogers.(75) Another important factor is the aging of the baby boom generation. That demographic bulge leaves fewer young people behind and thus contributes to the aging of the population as a whole. An older population is simply one that is less likely to use cocaine, marijuana, and heroin. To attribute these changes to law enforcement levels is at the least unprofessional. The liberalization of marijuana laws in California, Oregon, Maine, and elsewhere in the early 1970s produced no observable rise in consumption (either new users or increased frequency) of marijuana compared to other states.(76) The connection between law and individual behavior at this level is remote. Government policies are no more responsible for the current decline in drug use than they were for the boom in the 1970s and early 1980s. Drug use will almost certainly decline in the 1990s, no matter what law enforcement does, for roughly the same reasons that cigarette smoking has declined dramatically without any change in the law. V. SUBSTITUTE STUDY FOR SPECULATION The War on Drugs has produced a siege mentality. Senators from large states speak of invasions and national security threats. Even professionals who should know better succumb to anti-drug hysteria. A former director of the National Institute of Drug Abuse claimed that without the War on Drugs to restrain the people, we would have 60-100,000,000 users of cocaine in this country.(77) Now this is extremely unlikely; because of the stimulant nature of the drug, it appeals mostly to younger people, the population is aging, there is already a downward trend in cocaine except for crack, and so forth. But rather than trading assertion and counter-assertion, the real question is epistemological: How does the Director know what he 'knows'? Clearly, there is no empirical basis for his claim. It must therefore be an expression of fear or perhaps political maneuver, but clearly something other than a statement of fact. Why would the Director of the public agency most responsible for informing the public on drugs take that tack? Whatever his reasons, wild speculation is not the path to informed judgment and intelligent, workable policy. Why not truly confront the question of what less restricted availability of cocaine would mean in terms of increased drug use, taking account of both prevalence and incidence.(78) There are a number of ways in which this might be done if we truly want to know the answers. One way is market research. A standard technique of market research is to conduct surveys and ask people about what they desire in a product in terms of price, quality, and other features. How much w ill they buy at various prices? The same techniques are adaptable, _mutatis mutandis_, to illegal drugs. What about the effects of the drug? Is it addictive? Longitudinal studies of the kind pioneered by Ronald Siegel of UCLA should be encouraged.(79) NIDA Household Surveys register only gross numbers and do not track users. (They do not even cover group quarters, such as college dormitories and military barracks, where drug use may be higher than average.) At the present time we have almost no real-world knowledge of the experience of past and present cocaine users, except those unrepresentative few who come forward as former or recovering addicts. Even NIDA has conceded that we lack any estimate of the relative proportions of addictive use versus experimental or other non-consequential use in the total population of cocaine users.(80) Isn't that critical information in regulating the drug? (Drug users should be systematically interviewed, but they will be loath to step forward in the current climate of repression.) Useful experiments might also be performed using volunteers from the prison population (for instance, those serving life sentences without parole) and perhaps volunteers from the military services. How would men behave and how would their health fare with abundant access to cocaine? Would it be used widely or intensively or both? Finally, comparative studies from countries such as Holland can tell us a great deal about the effects of more freely available cannabis and heroin, although not so with respect to cocaine. We have a lot to learn from the Dutch. CONCLUSION I endorse a substantial measure of relaxation of drug laws in some respects simultaneously with a substantial measure of intensification in other respects: the enforcement of laws to protect children, along with more stringent laws regarding the sale of liquor and tobacco. As to the first point, some measure of relaxation of drug laws is both correct in principle and pragmatically necessary in the real world of limited resources. But this is not a 'surrender' in the War on Drugs. There is a paradox here: that the use of less force may actually result in producing more control over the drug situation in this country. Consider the analogy of a panic stop in an automobile. In a typical scenario, a driver observes a sudden obstruction in his path and slams on the brakes in order to avoid a collision. If he uses too much force on the pedal, the sudden forward weight transfer will very likely induce front-wheel lockup. At that point, the car starts skidding out of control. If the driver turns the wheel left or right, the car will simply keep on skidding forward toward the very obstacle that he is trying to avoid. In this moment of panic, the 'logical' or instinctive thing to do is to stomp the brake pedal even harder. But that is absolutely wrong. The correct thing to do to stop the skid is to modulate the brake pedal, releasing it just enough to permit the front wheels to begin rolling again so that steering control is restored. Thus, the correct and safe response is counterintuitive, while the instinctive response sends the driver skidding toward disaster. I leave it to the Committee to decide whether this has any relevance in the re-making of drug policy. - - - - (70) Truth-based legislation will also have to acknowledge that 'recreational' drugs also have beneficial uses, most notably medicinal ones. Respectable authorities in the U.S. and abroad endorse heroin for pain relief for terminally ill patients. Francis Young, the chief administrative law judge of the DEA, recommended this summer that marijuana be re-classified to permit doctors to prescribe it for relief of nausea from chemotherapy and for other purposes. His opinion concludes that marijuana is "far safer than many foods we commonly consume." and that its medical benefits are "clear beyond any question". Judge Young had previously recommended that MDMA ("ecstasy") be removed from Schedule I and be made legally available to psychiatrists for use in treating their patients. Medical uses are not the only beneficial effects of drugs. An AP wire from Frankfurt reported that the U.S. Air Force allows its pilots to take Dexedrine "so that they are able to fly when they haven't gotten enough sleep or don't feel fit enough." Hundreds of thousands of 'drug abusers' similarly stimulate themselves with amphetamines and cocaine. Over a century ago, Sigmund Freud discovered in self-experiments that moderate doses (one tenth of a gram) of cocaine improved his muscular strength and reaction time. See Blyck, _Cocaine Papers: Sigmund Freud_ (New York: New American Library, 1974), pp. 98, 103. (71) The Research Triangle Institute estimated the annual costs of alcohol abuse to society at $116 billion in 1983. Conference Board, 'Corporate Strategies for Controlling Substance Abuse' 13 (Axel, ed., 1986). With 1,000 daily deaths from lung cancer and other diseases often preceded by years of medical treatment, there must be billions more in social costs attributable to tobacco. (72) See Knepper, 'Puff the Dangerous Drug', _Car and Driver_, June 1980, p.43. (73) See Wisotsky, 'Crackdown: The Emerging "Drug Exception" to the Bill of Rights', 38 _Hastings Law Journal_ 889 (1987). (74) GGD-80-4 (October 25th, 1979). (75) About the only category of drug use that appears to be up is crack, and even that may be confined in large part to urban ghettos. See the _New York Times_, July 10th, 1988. The overall decline, of course, is a positive development so long as it is not offset by a corresponding rise in other drug use, such as alcohol or tobacco, or suicide or other forms of health- endangering behavior. In this regard, the National Commission should fund research directed toward the development of some meaningful index of health and well-being by somehow combining total morbidity/mortality date from all major causes. It would be a true Big Picture accomplishment if we could somehow confirm that specified demographic segments were not only using drugs less but were also happier and healthier. (76) Maloff, 'A Review of the Effects of the Decriminalization of Marijuana', _Contemporary Drug Problems_, p.132 (Fall, 1981). (77) Brinkley, 'The War on Narcotics: Can It Be Won?', _New York Times_, September 14th, 1984. (78) To speak of a rise or fall in drug use is simplistic. It is important to distinguish between prevalence (the number of users) and incidence (the frequency of use). In measurable health consequences, it may be meaningless if the number of people who try cocaine goes up or down; conversely a change in the amounts and frequency of consumption may significantly alter morbidity and mortality. (79) In a 1984 paper for NIDA (Research Monograph 50), Siegel concluded that the "hypothesis that long-term use of cocaine is inevitably associated with an escalating dependency marked by more frequent patterns of use is not supported by the findings." Instead he found that "social recreational drug users maintained relatively stable patterns of use" in the face of ready supplies and increased income as they aged. (80) Jerome H. Jaffe, 'Foreword', _Cocaine Use In America: Epidemiologic and Clinical Perspectives_ (NIDA, 1985). Other research agendas should include the possibility of addiction maintenance treatment and other therapeutic uses of cocaine.