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 (716) 636-2103. I do, however, expect to be out of town during the period of May 21, 1990 to June 10, 1990.
Jeffrey M. Blum
Associate Professor of Law
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