Since the early twentieth century Americans have relied on criminal sanctions to stop drug use. Reliance on the law, however, has not stopped drug use nor drug-related harm, but has provoked controversy and impeded efforts to deal with drug misuse.
The confusion and controversy surrounding the law are the result of a conflict, as yet unresolved, between using the law to protect order and health and using it to express a moral judtment. Laws are enacted to protect health, safety, and order by penalizing harmful conduct. We usually think of drug laws in this vein. Without penalties to deter drug use, it is thought that crime, violence, • personal injury and eventually social chaos will occur. Accompanying this goal is one with a decidedly moralistic bent: all drug use, whatever its consequences, is wrong. Criminalizing drug use thus reinforces moral feelings and protects a moral code increasingly under attack.
As long as the law hovers between the goals of morality and utility, the law will foment controversy without lessening the damage of harmful drug use. The two goals are often incompatible. The first, that of treating and rehabilitating drug users, may recognize that some drug use harms no one or even is functional for the user, and thus contradicts the criminal treatment on which the second depends. In attempting to achieve both aims, one or the other inevitably suffers. With the present laws the desire to condemn and punish has taken precedence over the need to treat. Drug use is thus more damaging than a regime concerned solely with health would allow, and as a further consequence, the drug laws engender conflict, rather than consensus, about the place of private drug use in modern society.
In this chapter we see that the most controversial features of the drug laws—the ones related to indiscriminate condemnation of all drug use—are least justifiable on grounds of protecting the health and welfare of users or anyone else; we then discuss the functions that such laws serve.
THE MORALISTIC ELEMENTS OF THE DRUG LAWS
Certain features of the drug laws provoke hostility and resistance and bring the law into disrepute; they are central to a system that condemns out of hand all drug use. Yet these features are least justifiable as necessary to protect the health and safety of users or the public. We examine several areas in which the law, while avowing concern with health, has actually tried to condemn all drug use.
A drug policy concerned with preventing harm from drug use would concentrate on those drugs that produce harm, and those instances or patterns of use that actually or are likely to cause harm. The present laws are overinclusive in two ways: they treat all drugs, and all uses of a drug, as if they were equally damaging.
Yet it is well known that the depressant, stimulant, analgesic, hypnotic, hallucinogenic, and tranquilizing agents in illegal use differ vastly from one another in pharmacology, psychic effects, motives for use, and consequences for the user. Use of one drug may seldom be harmful; another may be harmful only in clearly defined circumstances; and to use a third may be courting serious risks.
The laws take no account of the relevant distinctions in the potential for harm of various drugs and the circumstances of use. Even where legislative or historical accidents have produced disparate categories, the legal judgment is clear: all private drug use is criminal, whatever its actual effects on the user and others.
The monolithic view has produced some absurd results and given credence to claims that the law is arbitrary. Under existing state and federal laws a drug is classified as either a "narcotic," a "dangerous," or a "harmful" drug. First came "narcotic," which for years has been a convenient catchall for all drugs of public concern. Today "narcotic" remains in the language and minds of millions of people as the generic term for drugs and drug use. The term was introduced into state law by the Uniform Narcotic Drug Act. In 1928 the FBN, working through the Commission' on Uniform State Laws (a body of lawyers that drafts and recommends legislation for uniform enactment in each state), drafted the act. The act defined "narcotic" to include the opiates and cocaine. With no convincing evidence of dangers, the commission had decided against including marijuana. It did permit each state the option of including marijuana in its definition of "narcotic." Over the years, 48 of the 50 states adopted the uniform act.1 All defined narcotic to include marijuana, as well as a hodge-podge of nonnarcotic substances ranging from LSD and amphetamines to airplane glue and paregoric.
The uniform act proscribes a number of transactions involving "narcotic drugs," with the penalty determined by the class of transaction rather than by the drug and its potential for harm. For example, all sales of "narcotics" are subject to the same penalty, without regard for the particular drug sold or the features of the sale. Any exchange of drugs, including gift, is defined as sale. Thus, a doctor relieving an addict's withdrawal symptoms with methadone, a professional heroin importer, an addict selling a five-dollar bag, a student sharing a marijuana cigarette with his roommate, or a woman passing one of her own sleeping pills to her husband are guilty of the same crime and subject to the same penalties. Assuming that each transfer threatens harm to a valid state interest, the degree of harm and the seriousness of the harm vary so greatly that essential distinctions are blurred. Instances of actual harm are overlooked when all are included in a single category.
In recent years some states and the federal government passed legislation creating a new category of "harmful" or "dangerous"2 drugs to deal with drugs that seemed to present problems different from narcotics. Offenses involving these drugs are generally treated more leniently than "narcotic" offenses; and in many cases, an act involving a "dangerous" drug is not criminal, whereas with a "narcotic" it is.
Although this category suggests a differentiation among drugs and their effects, the refinement is hard to substantiate. The logic of different drug classifications has not been consistently followed. Rather than introducing clarity, the new category has more often compounded the confusion and contradictions of the laws. To begin with, a separate class for "dangerous drugs" was largely a historical accident. With the federal laws, for example, dangerous-drug lcgislatiori resulted from the inability to fit the regulated drugs into the framework of narcotic and marijuana tax statutes enacted several decades earlier. Where states have chosen to enact a new category for such drugs as amphetamines and barbiturates, rather than expand the list of "narcotic" drugs (which other states have chosen to do), it appears that the characteristics of their users, mainly middle-aged adults, rather than sensitivity to the inconsistencies of the narcotic label have been the motivating factor. A control scheme attuned to the varying potential for harm would not treat leniently drugs that can be extremely dangerous, while harshly penalizing less dangerous drugs. Amphetamines and barbiturates, for instance, produce tolerance, severe withdrawal syndromes, psychosis, high toxicity, and violent or impaired behavior, yet are treated more leniently than marijuana, which has none of those effects. A further anomaly has been added by putting LSD into the dangerous-drug category, while continuing to regard marijuana as a narcotic.
Under the Drug Abuse Control Amendments of 1965—the first federal regulation of stimulant, depressant, and psychedelic drugs —personal possession was not even penalized, and unlicensed sale or manufacture was subject to a one-year penalty, while marijuana and heroin received mandatory minimum sentences of five years. Such disparities confused even the federal drug police. In 1968 they testified before Congress that differential treatment increased their problems. Congress attempted to rectify the anomaly by increasing the penalty for sale of dangerous drugs to two years and imposing a maximum penalty of one year in jail for personal possession. Yet the confusion remains. LSD is still subject to the same treatment as amphetamines and barbiturates, while marijuana, the most widely used and least dangerous of illegal drugs, merits more severe sanctions. As a final flourish, THC, the more potent synthetic of the active ingredients in marijuana, was legally grouped with the dangerous drugs.
Classification schemes based on the relative harm of various drugs has become the current legislative vogue, and is hailed as drug reform both in the United States and in England. Trie Controlled Substances Act, passed in 1970 and now being urged upon the states by the Justice Department, and its British counterpart, the Misuse of Drugs Bill, classify all regulated drugs in five different groupings under one heading. This is widely thought to be a substantial reform, but it is unlikely to alter the dominant tendency to think of all drug use as an undifferentiated phenomenon. Aside from inconsistencies in the relative rankings of the drugs, the fact that all uses of the regulated drugs, whatever their effects, remain criminal indicates that dealing with damaging drug use is not the sole concern of the law.
Except for overt poisons, it is rare that every use of an illegal drug represents the same degree of danger to everyone. Yet under the law all uses of a drug are proscribed, no matter that the motives for use vary tremendously. Peyote or LSD may be used in religious ceremonies by organized cults or individuals; in carefully controlled settings, by experienced, aware individuals, with expert supervision; or as an adjunct to psychotherapy. It may also be taken in the search for yet another kick by a prepsychotic, a depressed teen-ager, an adult, or a youth seeking peer group approval. Even opiates, when they are provided regularly, may help people to function and be productive: doctor-addicts, the romantic poets, and the ordinary British addicts are the most obvious examples.
The most basic flaw in a system that penalizes without regard to harm every act of use or possession is its clash with the fundamental safeguard of Anglo-American jurisprudence that only the occurrence and not the potentiality of harm be penalized. The vast majority of criminal statutes act post facto—they penalize conduct after it has caused injury. A system whereby an intention to steal, say, was made a crime might, assuming detection of intentions wereipossible, be an efficient way of preventing theft. Yet the price of such efficiency would be the nightmare of thought control, and the injustice of arresting people who, despite their intention, never actually do steal. Where the law penalizes actions prior to the occurrence of actual harm, as with the crimes of attempt, conspiracy, drunken driving, etc., the law occupies an anomalous position, and, as the debate over indicting Dr. Spock and the Chicago Seven for conspiracy shows, is criticized when used too frequently. Such crimes are limited to conduct that is clearly preparatory to, and certain to produce, an undesired harm. With conspiracy, for example, an actual overt act in furtherance of the unlawful design must be shown to have occurred to prove the crime. Nor does one "attempt" murder merely by harboring a desire to kill his wife, buying a gun, and waiting in ambush by the garage as she parks the car. Some further act that shows beyond a doubt the intention and likelihood of its completion is required. Similarly, a high degree of probability that harm will result underpins intoxicated-driving statutes. Some may be able to negotiate the road quite ably when intoxicated, but there exists massive evidence that most people cannot. We assume quite reasonably that drunken driving is likely to produce accidents. In all these instances, no matter how direct the causal chain between conduct and eventual harm may seem, we are extremely hesitant to prohibit an act short of actual harm.
The drug laws ignore these limitations—because, of course, all drug use is generally believed to be harmful in itself and to lead to worse harm. This unfounded belief is clearly evident in the conclusion drawn by the judge in a famous test of the constitutionality of the marijuana laws when a witness stated that "no drug (marijuana or otherwise) is harmless."3 He concluded from this that "marijuana should be prohibited."
Because some uses of a drug may be harmful, it does not follow that all uses are, or that every use must be prohibited to avoid those few harmful ones. Prohibition of all use is justified only when the evidence shows that most uses of the drug are likely to be damaging, or that it is impossible to use the drug with discrimination. Even then, it does not automatically ensue that criminal sanctions are the most efficient way of preventing harm from drug use. The vice of the present system is that we approach dangerously close to the penal code of Lewis Carroll's Red Queen, where the virtue of punishing likelihoods, and intentions is proclaimed as "all the better," since punishment before the harm obviates the harm that would otherwise have occurred. Total condemnation of all drug use is not necessary if our object is to prevent damage: but it is essential if our real intention is to express a moral judgment.
Drug penalties are among the most severe on the books. Only murder, rape, and kidnapping receive equivalent treatment. In many states armed robbery, manslaughter, and a variety of other violent crimes are often treated more leniently than drug-selling.
Yet there is no evidence that the extreme penalties actually deter people from using drugs in a damaging way or, indeed, from using drugs at all; and there is growing evidence that excessive penalties cast the law into disrepute. The length of penalties, the practice of punishing a single act as multiple offenses, mandatory minimum sentences, and civil commitment programs are difficult to justify in health terms, but they are readily understandable as the wages of sin.
The length of drug sentences is punitive in a relative and absolute sense. In relation to other social harms—such as violence to people or property, injury or death resulting from automobile accidents, and the high infant mortality rates in the black ghetto—the harm from drug use appears minimal. Usually there is no tangible victim, and self-inflicted harm ranks low in the hierarchy of social interests. Thus, drug sentences are objectionable because frequently nothing has been done deserving retribution; and when there is harm, the Draconian penalties are out of all proportion.
The federal sentences, until recently, averaged 2 to 5 years for simple possession of marijuana and narcotics, 5 to 10 years for first offense of sale or possession for sale, 10 to 40 for a second sale offense.4 The Controlled Substances Act, while reducing all possession penalties to one-year imprisonment, created a new category of "dangerous special drug offender," who may receive up to twenty-five years' imprisonment. Persons convicted of a "continuing criminal enterprise," as defined by the act, may receive up to life.5 New York in 1969 made a life sentence mandatory for possession or sale of more than sixteen ounces of heroin, morphine, cocaine, or opium. Texas allows from one year to life for simple possession of any amount of marijuana. Some states punish sale to a minor of a narcotic (including marijuana) with life imprisonment, and Georgia allows the death penalty. Some states would permit the incarceration for life of a 21-yearold college student who shares a "joint" with his 20-year-old roommate.
Ancillary drug activities are often treated more strictly than use or possession. Merely being in the company of one possessing narcotics illegally could result in a five-year prison term in Massachusetts, while simple possession draws three. A doctor who treats a drug-dependent patient without notifying state authorities risks several years in jail and loss of his medical license. In some states, removing the label from a prescribed medicine is an offense. Most courts tend to place a broad construction on the prohibited actions. Sale, punishable in most states by a mandatory minimum penalty of five years' imprisonment, has in Illinois, for example, been interpreted to apply to buyers as well as sellers.6 Thus, one can be convicted of "sale" of a narcotic by buying drugs for another. Fleeting possession of minute nonusable quantities of a drug is as criminal as possessing large quantities. While there are factors that often prevent adherence to this rigid schedule, high penalties and jail sentences are imposed often enough to cause serious concern. Although there have been noticeable changes in recent years, judges often think that marijuana is as dangerous as heroin because of their equivalent legal treatment, and they sentence accordingly. In other cases, a well-informed and humane judge will have no discretion at all to tailor the sentence to the particular offender.
Some idea of how seriously courts view drug offenses may be gleaned from the following cases involving marijuana: A college sophomore, found in Virginia with less than 25 grams of marijuana, received the statutory minimum of 20 years' imprisonment. In Seattle, Washington, a man sold a marijuana cigarette to a minor and is now serving a 20 to 40 years' prison term. Twenty to forty years was also the sentence imposed on a Cleveland 20-yearold who sold a police informer a quantity of poinsettia alleged to be marijuana. Lee Otis Johnson, a black activist in Houston, was recently sentenced to 30 years' imprisonment for allegedly giving one marijuana cigarette to an undercover agent. And Timothy Leary now faces a 10-year prison term in California for possessing less than one ounce of marijuana, a penalty that few of the 40,000-plus marijuana offenders receive. High sentences are more the rule with heroin and similar drugs. Half the federal prisoners from 1954 to 1964 were drug offenders, serving average sentences of seven years.' And in England, an enlightened jurisdiction by comparison with the United States, a study showed that judges were sending 17 percent of marijuana first offenders to jail, 90 percent of whom possessed less than 30 grams.8
A single act of possession or sale of a drug may be dealt with as the commission of several crimes, and consecutive sentences may be imposed for them. Under the former federal law one instance of possession could also constitute unlawful importation and failure to register under the tax act, while transfer of a drug for remuneration was also prosecuted as illegal possession and unlawful importation. With a 5-year penalty on each count, an act otherwise penalized by a 5-year term could result in a 15-year sentence. In many states, the possession of one marijuana cigarette may be prosecuted as three crimes: possession, possession with intent to sell, and being present where a drug is kept, with separate penalties imposed for each. It is hard to see what purpose this practice serves other than providing another club to hit the drug user.
Many statutes require a judge to impose a minimum jail term in every case. Discretion to sentence according to the background and character of the defendant and the circumstances of the case has been removed because it is feared that the judge might not be punitive enough toward drug offenders. Congress, in 1952 and 1956, provided mandatory minimum sentences for most drug offenses. Judges were not permitted to suspend sentences or grant probation. The right to parole was also severely limited.9 They had no choice but to sentence every seller to at least five years in jail, and every user to a prison term.
In actual operation, mandatory minimum sentences have had an opposite effect. Limitation of judicial discretion actually amounts to a transfer of that discretion to the police and prosecutor. Their decision to arrest and prosecute becomes simultaneously a sentencing decision if guilt can be established. It is highly questionable whether the sentencing function should be performed by officials whose role in the criminal process is detecting violations and initiating prosecutions. This undermines the checks and balances built into the system, and gives inordinate weight to the subjective decisions of police and prosecutors.
Judges have been unhappy with this arrangement for several years. With no flexibility possible in sentencing, defendants are less willing to negotiate guilty pleas. One effect of minimum sentences has been to increase the number of jury trials in drug cases and add to court backlogs.1° Convictions, however, have not risen accordingly. To avoid a mandatory jail sentence judges have construed the law of search and arrest liberally, thus acting to frustrate the legislative purpose of punishing drug offenses with high sentences. If a conviction is obtained, a long prison sentence follows, increasing the number of drug offenders in prison, but at the same time prosecutors are loath to bring cases to court. Similarly, prison authorities are frustrated. Rehabilitation is a futile hope when a man cannot be paroled no matter how well he behaves.
Despite these criticisms, the question of sentencing discretion is not rapidly yielding to a more rational view. The reforms of the new federal law have been offset by the severity of the "dangerous special offender" category. While some mandatory minimum penalties have been removed, John Ingersoll, head of the Bureau of Narcotics and Dangerous Drugs, has urged this reform as n.ecessary to ensure that drug offenders are in fact punished, a recognition that minimum sentences have backfired.
These features of drug sentences are difficult to support in the absence of evidence that penalties actually do prevent drug use, harmful or otherwise. Legal sanctions, along with drug availability, peer-group pressure, education, and family background, are one of many variables that influence the decision to take a drug. The dismal failure of alcohol prohibition and the current wide use of psychoactive drugs suggest that the threat of punishment is by no means the most significant factor.
The marijuana laws, in particular, are widely and openly flouted, sometimes by thousands of people simultaneously. Where people have refrained from using the drug, few give the law as a reason. Kaplan comments:11
These reports are, of course, subject to all the frailties of a person's evaluation of his own motives. Nonetheless, if believed, they show that some of the non-users had abstained because they were morally opposed to the use of any intoxicants; some because they feared the effects of marijuana; some because they had "better things to do" with their time; some because they were afraid of something that might reduce their resolve to give up cigarette smoking; some because they hadn't gotten around to using the drug; and finally some, a very few, because they did not know where they could obtain the drug without too great a risk of apprehension. In a sample of students at Cal Tech, fewer than twenty percent of the non-users of marijuana regarded the law as a major reason not to use the drug. Of these, eleven percent stated that they wished to avoid the risk of legal or security-clearance problems, while eight percent as a matter of principle wished to avoid doing what was illegal.
Law students, with their vested interest in obeying the law, are one group that would be expected particularly to be deterred by sanctions, yet a survey of University of California law students entitled "Casing the Joint" found that in 1969, 73 percent of the student body had risked arrest, imprisonment, and refusal of admittance to the bar to smoke marijuana»
Two limitations of criminal sanctions further weaken the power of the law to deter: the chances that the criminal activity will never be detected and, if it is, that no punishment will be imposed. The threat of punishment is an abstraction, lacking substance unless there is a high probability that it will be applied in a particular case. But the drug user knows how improbable is his arrest. He may not even know anyone who has ever been arrested. He knows that nonusers cannot readily detect drug intoxication. He also learns to control his "high" to avoid suspicion by nonusers. He will use the drug only at certain times and places, may not keep a supply on the premises, and refuse to obtain drugs even for friends. But even if he is detected, actual punishment is still highly problematic. At present few marijuana users go to jail. If they are students, middle class, reasonably cooperative, and repentant, the case will probably be continued without a finding and eventually be dismissed if no further drug involvement occurs. At worst, they will be put on probation and given a suspended sentence. In Houston, for example, juveniles know that they can chance three or four arrests for marijuana before a finding of delinquency will be made.1.3 In a recent survey of drug arrests in Massachusetts, the Massachusetts Bar Association" found that of 600 people arrested for drug crimes, only 6 were jailed.
In addition to the abstract nature of the sanction and the forces mitigating its imposition, the satisfactions derived from drug use further diminish the deterrent effect of the law. For the addict, the physical satisfaction of avoiding withdrawal is overwhelmingly compelling. If he will rob, steal, and prostitute himself to stave off the pain of withdrawal, it is absurd to think that the threat of legal punishment will induce him to undergo it. The non-dependent user, though not compelled like the addict, also finds the drug experience worth the risk of imprisonment, simply because it's enjoyable. Skolnicki5 suggests the following procedure to whether the threat of punishment is likely to dissuade a person from private conduct he finds pleasurable:
One way of putting oneself into the position of the potential offender is to translate the abstraction of such terms as "opiate addiction," "marijuana use," "homosexuality," into the reality of an already experienced everyday behavior. For example, the lawmaker might ask himself how he would respond to penal sanctions forbidding the smoking of cigarettes, the drinking of coffee, sexual orgasm, or any other commonly practiced activity which, if "excessively" indulged in, might lead to social and personal harm.
Since 1962 many states have enacted statutes that allow addicts to be committed either civilly or in lieu of punishment to treatment centers for long periods. Yet even here, where the law purports to rehabilitate and treat, in operation it works out as punishment. While hailed as a new departure in drug control and a humane shift from a police approach, these programs are indistinguishable from a frankly punitive approach and, in some cases, are worse. Governor Rockefeller commented after legislative endorsement of his committal program: "We are really facing up to the tragic social scourge of narcotics addiction. We will get the pusher and the addict off the streets."16
Indeed, the desire to "get the addict" off the street, and for long periods—often longer than sentences for criminal convictions—rather than rehabilitation, seems to have been the overriding purpose of these laws. In California, legislators and police strenuously opposed the commitment statute until it was pointed out how it provided another, indeed a heavier, weapon against the addict. Stanley Kramer," the former research director of the California program, thinks the civil commitment procedures most "uncivil," and finds that they are neither rehabilitative nor nonpunitive:
The program is placed in the hands of the California Department of Corrections. Since its inception the program has been virtually indistinguishable in operation from a prison program. The physical facilities are prisonlike and the institutional rules are prison rules. Psychiatrists and psychologists have played only the most peripheral role in the program. Originally, release was granted through the same paroling authority which acted for the prison system. . . . Thus a situation has been created in which a large number of people, who have been declared addicts or in imminent danger of becoming so, are being incarcerated intermittently over many years, most spending more time locked up than free, in a program administered and carried out by correctional personnel. By calling the commitment civil, changing the lexicon from penal to therapeutic and offering five meetings a week in groups of sixty, some feel the state has met its obligation under Robinson.
The legal policy of penalizing all drug use and possession has not resulted from clear and convincing evidence that drug use is damaging, and that the damage can be best prevented by criminal law. Accident, distortion, or disregard of information, and an almost naive acceptance of any charge about the evil of drugs, dominate the lawmaking process.
Alfred Lindesmith" has described the less than rational process by which it became established in America that heroin addicts were dread criminals:
The present program of handling the drug problem in the U.S. is, from the legal viewpoint, a remarkable one in that it was not established by legislative enactment or by court interpretations of such enactments. Public opinion and medical opinion had next to nothing to do with it. It is a program which, to all intents and purposes, was established by the decisions of administrative officials of the Treasury Department of the U.S. After the crucial decisions had been made, public and medical support was sought and in large measure obtained for what was already an accomplished fact.
Other striking examples of the liberties that lawmaker's have taken with facts have occurred in connection with the prohibition of marijuana and LSD, two drugs central to the drug controversy.
At different junctures in the history of marijuana control, different claims about the harmful effects of the drug have been put forth to justify legislative action. Upon closer examination; the substance of one claim has evaporated, only to have a new one take its place, and criminal prohibition is maintained.
Federal prohibition of marijuana occurred after three days of congressional hearings in 1937. Howard Becker" has described how the Federal Bureau of Narcotics under Harry Anslinger created a marijuana problem in the press, drafted the bill, and called the hearings leading to the passage of the Marijuana Tax Act. The chief argument advanced in favor of control was that marijuana produced insanity and led to violent crime. The Senate report2° described the danger in these terms:
Under the influence of this drug marijuana the will is destroyed and all power of directing and controlling thought is lost. Inhibitions are released. As a result of these effects, many violent crimes have been committed by persons under the influence of this drug. Not only is marijuana used by hardened criminals to steel them to commit violent crimes, but it is also being placed in the hands of high school children in the form of marijuana cigarettes by unscrupulous peddlers. Its continued use results many times in impotency and insanity.
The method of proving these claims left much to be desired. They quoted hearsay statements of an anecdotal nature, relating incidents of murder or violence that were allegedly the result of marijuana intoxication. One witness, for instance, stated: "I believe in some cases that one marijuana cigarette may develop a homicidal maniac probably to kill his brother [sic]."21
A study by Kaplan, in Marijuana: The New Prohibition, analyzes each report and finds inadequate the evidence that marijuana was the cause. In most cases the source was a newspaper or magazine story in which a police officer or an arrested suspect reported marijuana use before the commission of a violent crime.
The poor quality of the evidence was pointed out to Congress by Dr. William C. Woodward, who had previously participated in an investigation of marijuana with the Commission on Uniform State Laws: 2
It has surprised me that the facts on which these [newspaper] statements have been made have not been brought before this committee by competent primary evidence. We are referred to newspaper publication concerning the prevalence of marijuana addiction. We are told that the use of marijuana causes crime.
But as yet no one has been produced from the Bureau of Prisons to show the number of prisoners who have been found addicted to the marijuana habit. . . . informal inquiry shows that the Bureau of Prisons has no evidence on that point.
You have been told that school children are great users of marijuana cigarettes. No one has been summoned from the Children's Bureau to show the nature and extent of the habit among children.
Inquiry of the Children's Bureau shows that they have had no occasion to investigate it and know nothing particularly of it. Moreover, there is in the Treasury Department itself, the Public Health Service, with its Division of Mental Hygiene. . . . That particular bureau has control at the present time of the narcotics farms that were created about 1929 or 1930 and came into operation a few years later. No one has been summoned from that bureau to give evidence on that point.
Informal inquiry by me indicated that they have had no record of any marijuana or cannabis addicts who have ever been committed to those farms.
The Bureau of the Public Health Service has also a division of pharmacology. If you desire evidence as to the pharmacology of cannabis, that obviously is the place where you can get direct and primary evidence rather than the indirect hearsay evidence.
Congress disregarded Woodward's criticism, dismissed him as an uncooperative witness, and passed the law.
When in the late 1940s it became clear that marijuana was not the monster claimed in 1937, the rationale for prohibition shifted. At the original hearings, Commissioner Anslinger entered into this exchange: 23
Congressman Dingell: I was just wondering whether the marijuana addict graduates into a heroin . . . user?
Anslinger: No, sir; I have not heard of a case of that kind. I think it is an entirely different class. The marijuana user does not go in that direction.
For the first time the link to heroin addiction, previously denied by Anslinger, began to appear as a reason for criminal penalties. There is evidence that the FBN officials switched the main danger of marijuana from instantaneous murder, rape, and insanity to the "schooling it provided future addicts." Jerry Mande124 observes in a study of the genesis of the escalation argument that "in less than three years, at least nine mass media articles on narcotics listed the only danger of marijuana to be its propensity to start 'heroin users.'" Again, there was scant evidence for this newfound danger. The FBN was claiming an upsurge in heroin addiction in the postwar period, but there was no way to relate that development to marijuana use, nor could physiological or chemical connection between marijuana use and heroin experimentation be shown. The only proof appeared to be the widely accepted "fact" that most heroin addicts had used marijuana sometime previously to their addiction. The high incidence of opiate addicts of a rural or medical origin belies even that "fact."
In any case, the relevant question is what proportion of marijuana users become addicts, not what proportion of addicts first used marijuana. We would probably find that 100 percent of addicts first used tobacco, alcohol, and even milk, but these are not responsible for heroin addiction. The best statistics on this subject came from California, where marijuana use has grown more rapidly than elsewhere. But these figures show no corresponding rise in heroin addiction. In fact, marijuana use is quite prevalent among both college students and North Africans, two groups with very low rates of opiate addiction. The evidentiary picture is summed up in a report to the British Home Office on the dangers of marijuana, which put the matter in these terms: "It can clearly be argued on the world picture that cannabis use does not lead to heroin addiction."25
Advocates of marijuana prohibition still rely on the escalation argument, but they have supplemented it with a new list of dangersrmcluding dangerous driving and psychological dependence. As the focus of attack on the marijuana statutes has shifted from the legislatures to the courts, such claims are increasingly aired. Attacks on marijuana statutes have been mounted on several constitutional grounds, from freedom of religion and privacy to cruel and unusual punishment. In one way or another they at least force courts to apply minimum standards of cogency to the evidence. The results to date suggest that courts are only slightly more rigorous than legislatures in evaluating the alleged dangers of marijuana. In Commonwealth v. Leis, the Boston marijuana trial, twenty experts presented evidence on the harm versus the harmlessness of marijuana. Both the lower court and the state supreme court held the marijuana laws to be valid on the ground that the legislature could reasonably think the drug harmful. In its reasoning the higher court demonstrated the power that conjecture and speculation so often exercise over hard fact in dealing with drugs. The court's handling of the escalation argument reveals a confusion about the meaning of "cause," which led it into a contradictory position: 26
Essentially the experts do not point to any evidence of direct, causal relationship between the smoking of marijuana and the use of more dangerous drugs. The studies that do exist discount the once prevalent belief that the smoking of marijuana inevitably leads to the use of more dangerous drugs. However, it is not necessary to show such a direct, causal relationship. There is considerable evidence that marijuana does lead some people to use of more dangerous drugs. The progression from marijuana to heroin or LSD is a frequent sequence. [Emphasis added.]
In this passage, the court distinguishes between "inevitably leads" and "direct, causal relationship," on the one hand, and "does lead" and "progression," on the other, and then concludes that this distinction is legally significant for purposes of showing` evidence of a relationship between marijuana and other drugs. However, the distinction between causation and progression is not apparent, and the court makes no attempt to defend or explain its position. It ends contradicting itself by deciding the evidentiary issue in favor of the state, after recognizing the lack of evidence of causation.
A similar fuzziness appears in the court's summary of the grounds for its decision:27
We do not think that the present unavailability of or inability to collect absolute, statistical and scientific proof that the smoking of marijuana (1) triggers "psychotic breaks," (2) leads to the use of more dangerous drugs and (3) causes automobile accidents prevents the legislature from acting to prohibit its use. . . . To prevent psychotic breaks, to guard against the use of more dangerous drugs and to eliminate a cause of automobile accidents are valid state interests.
In this passage the court has actually avoided the evidentiary issue that was the point of the trial. The precise question is whether there is evidence of the harms listed. Discounting the necessity of "absolute, statistical and scientific proof" does not remove the need for some other kind of proof of harm—indeed, that is precisely the question before the court. The court's statement that the putative harms are valid state interests is no answer, for the question still remains as to whether there is evidence that the use of marijuana threatens those interests. Essentially, the court bases its conclusion on the mind-altering and time-space-distorting capability of marijuana. It equates altering mental processes with automatic causation of harm, when the question to be answered was whether marijuana, conceded to be a mind-altering drug, could reasonably be said to produce those harms.
The court in Leis also relied for its decision on the recently advanced contention that marijuana use may produce auto accidents. Once again we see a new threat from marijuana replacing the old, unprovable arguments. In this case the assumption is that since marijuana has a definite mind-altering effect, it necessarily impairs driving ability. To the defendant's claim that no evidence existed of a link between marijuana and auto accidents, the Leis court reasoned that the properties of marijuana that preclude easy detection of its use "undoubtedly account for the unavailability of statistical data."28 Rather than considering the lack of data a sign that a causative effect in accidents was nonexistent, the court found:29
However, there is agreement among the experts that marijuana causes an alteration of sensory perception, a degree of psychomotor discoordination and an inability to concentrate. All of these effects of marijuana would interfere with the operation of a motor vehicle.
Again, the question of whether these effects actually interfered with driving (the precise issue before the court) was not pursued.
The weakness of the court's logic was underscored a few months later when Alfred Crancer3° at the University of Washington published the results of an experiment testing the effects of marijuana and alcohol on a simulated driving course. A "regular" dose of marijuana produced the same number of errors that driving uninfluenced by any drug did. Only alcohol was shown to have a significant effect on driving ability. While this experiment does not settle the question, it points up the weakness of the court's reasoning.
A California law passed in 1965, as the psychedelic movement was cresting, illustrates the instinctual response permeating LSD and other drug legislation. A bill prohibiting the manufacture, sale, importation, or possession of LSD and DMT passed the senate 33O with virtually no debate and went to the Criminal Procedures Committee of the state assembly. Testimony in the committee was generally restrained, with most witnesses in favor of regulation but divided on the need to ban personal use and possession. When the committee failed to clear the bill, the press launched a blistering attack on their "irresponsible" action. William McGlothin31 describes the ensuing events that eventually led to the enactment of the bill:
Attorney General Lynch stated that LSD and other hallucinogenic drugs "present the most crucial drug problem which the United States has faced"; Governor Brown, Ronald Rea*, and various other political candidates announced that they favored passage of the bill, and a Los Angeles Times editorial expressed amazement that the committee was unaware of the LSD menace. The committee chairman . . . defended the action by pointing out that Federal law already prohibited manufacture and sale that further state laws should await the findings of an interim study group which has been established.
In the following week, the committee defeated a move to reconsider the bill, and the attacks from law-enforcement agencies and the press mounted to new heights. The Los Angeles County District Attorney, Evelle Younger, was quoted on daily radio and TV newscasts concerning the need for LSD controls, and the Los Angeles Times ridiculed the committee for considering such things as "motivation" for use of the drug. At the beginning of the third week, another move was made for reconsideration, and this time the beleaguered committee removed the possession clause from the bill and sent it to the assembly floor. Their action was attacked as a "watering down" of the bill, and District Attorney Younger initiated a campaign to have the possession feature restored. This was promptly accomplished by a vote of 44-24, and the final bill passed the assembly by 63-5.
The Los Angeles Times editorialized that the legislature had acted properly, stating that "LSD not only can cause serious harm to the user but can also lead to very serious criminal acts," and naively concluded that the "action will keep it [LSD] in the laboratory and the hospital where it belongs." Attorney General Lynch capitalized on the victory in his political campaign: spot radio announcements pictured him as the man who protected the state from LSD and also fought the menace in Washington. As a postlude, the governors of California and Nevada vied for the honor of being the first to formalize an anti-LSD bill; the former claiming to have signed a few hours earlier, while Nevada's Sawyer claimed primacy on the grounds that California's law was not to be effective until 90 days after the legislature adjourned.
The federal LSD laws, in a curious reversal, also illustrate the ascendancy of emotion over logic and reliable data. The Drug Abuse Control Amendments of 1965 attempted to regulate the manufacture, sale, and distribution of LSD by criminal penalties, but exempted possession of the drug for personal use. Possession penalties were thought to needlessly penalize otherwise law-abiding young people who were experimenting without antisocial tendencies. Fear of arrest might also discourage users from seeking psychiatric aid should they need it. Three years later President Johnson asked and received from Congress a law penalizing personal use and possession of the drug. No new evidence of drug effects had been unearthed in the interim. Use of LSD had, in fact, dwindled in response to rumors that it might cause chromosomal damage. The political need for a tough stand against crime and the unruly activists associated with LSD seems to have been so strong that the lack of firm evidence and the still-relevant arguments of 1965 could be ignored.
EVALUATION AND FEEDBACK
Francis Allen, dean of the Michigan Law School, has said:32
It is fair to say that one of the most serious deficiencies of the American legislative process is the failure to provide machinery for the routine collection of data adequate for evaluation of existing regulatory measures and consideration of new proposals. Nowhere are the consequences of these deficiencies more serious than in the area of narcotics control. For two generations we have engaged in a program of penal regulation profoundly affecting the lives and liberties of persons and involving public interests of greatest importance without reliable data on a host of matters indispensable to any sound audit of what we have been doing and to what we should be doing.
The deficiencies of the drug laws in this respect are manifold and lead to the conclusion that disapproval of drug use, rather than prevention of harm, is the chief concern of the law.
Most striking has been the dogmatic adherence to a -police approach through recurring drug crises. Legislators simply increase the dose of legal firepower and turn their backs on the problem. When a new crisis appears, the cycle is repeated. This ostrichiike stance is due in part to the rigid assumptions governing drug policy. The unquestioned premise dominating dialogue, and foreclosing consideration of noncriminal alternatives is that drug use is inherently bad, and only stern sanctions can stop it. One consequence has been a failure to experiment with ambulatory or maintenance systems of the British type. Another is the resistance that methadone programs have faced, even though they are one of the few bright lights on the treatment horizon. The limits of discourse were evident in the failure to examine first principles in the two presidential commissions and the White House Conference convened in the 1960s to suggest answers to the drug problem. No one questioned the ruling assumptions that total abstinence from drugs was the only goal of treatment and that criminal sanctions were the chief means of control."
When heretical views have challenged these prevailing doctrines, orthodoxy has responded by distorting the evidence or attacking the challengers. The FBN, for example, seldom refers in its literature or regulations to the Linder case, the Supreme Court decision upholding the right of doctors to prescribe heroin to addicts; and when it does, it dismisses the result on the basis of a "technicality" in the indictment.34 Appeal to the British system usually elicts the official response that "it was tried here and failed," referring to the narcotic clinics opened in 1919. The clinics are usually described as an "utter failure," even though some writers have shown that certain clinics, such as the one in Shreveport, were successful, while the fault of others lay in the administration and not the idea. Federal officials have castigated those who disagree with official policy as "self-appointed experts" or "doctors who have never seen a drug addict in their lives."35
Another notorious misuse of public power occurred when, after the FBN intervention, the publication of an AMA-ABA joint report, Drug Addiction: Crime or Disease, criticizing the policy of treating drug addiction as a disease and calling for limited experimentation in legal distribution of drugs, was delayed for two years. In the interim the bureau officially distributed its own report with a title, format, and color that made it hard to distinguish from the original." On another occasion a federal agent was sent to the University of Indiana to try to halt publication of a book and intimidate a writer critical of the bureau's policies."
Even if officials or lawmakers wanted to monitor and evaluate their programs, they would be hard-pressed to gather the necessary information. They would be blocked by a statistical system which can provide information neither about the extent of drug use nor about the impact of law on that use. Except in California, state statistics on drug crimes are deficient and incomplete. The number of arrests, convictions, and drug seizures is usually provided, but without distinguishing among different drugs or giving data on the costs or effects of the enforcement programs. Drug-seizure statistics, common and widely publicized, are meaningless even as an indication of law-enforcement activity, for there are no agreed criteria on how to measure the drugs or take impurities into account. Federal statistics are categorized according to drug, but as Mandel's excellent study38 of drug statistics shows, changes in the legal definition of drug offenses, penalties, law-enforcement priorities, and search and seizure doctrine will influence arrest statistics without necessarily reflecting any real change in patterns of use. At best, drug statistics describe all the police can detect—the tip of the iceberg—and bear little relation to the larger mass of drug use. As long as drug use is a crime, it will be difficult and probably impossible to obtain data on drug-use patterns, social effects, and other factors relevant to policy decisions. On the other hand, a system of licensed distribution and legal use would,permit the damage of shifting patterns of drug use to be monitored and indicate how public resources may best be allocated. A British law" passed in 1967 to restrict the prescribing of heroin to addicts by hospital clinics also required statistics on the addict population, to give a clear picture of the epidemiology and incidence of heroin use and provide a benchmark to assess policy. In the United States, despite chronic alarm over the existence of addicts, the total number of addicts remains a mystery. We cannot even say accurately that there are more heroin addicts now than there were ten years ago.
The sorry state of drug statistics prevents the evaluation of old policy and the establishment of guidelines for new ones. A basic question for policy makers is the effect of raised, lowered, or mandatory minimum penalties on the incidence of drug use and sale. A study commissioned by the American Bar Foundation to answer this question found that there was not enough information to tell one way or the other." The New York State Narcotics Addiction Control Commission has spent some $50 million a year in "treating" addicts, yet because no follow-up has been done on the addicts,41 no one knows whether the program has actually made any difference.
Feedback so far has usually been the "big case," such as Stony-brook, in which the police gain headlines from smashing a "dope ring." This usually reassures the public that the police are plugging the dike and that harmful drug use is temporarily under control. One study42 of narcotic enforcement practices found such cases usually to be exaggerated, and of course no evidence for how the law was really working:
The following day a story appeared in the local . . . newspaper with an eight column headline and front page pictures reporting that a one-and-a-half million dollar dope ring had been smashed. The size of the dope ring was reported in newspaper headlines according to the ultimate possible price of heroin on the black market. Actually the pound of heroin confiscated contained only 6 percent pure heroin. Such a quantity does go a long way on the retail market, but not nearly as far as the newspaper story suggested. . . . Another purpose served by exaggerated newspaper treatment of narcotic cases is to indicate to the public that "dope rings" are in common operation, but that the police are able to smash them. To a certain extent, however, the dope ring referred to in the newspaper article was itself "created" by the narcotics police. This is not to say that Charles Gomez was not a criminal purveyor of narcotics; but when law enforcement agencies themselves become major purchasers of narcotics, they make someone like Gomez a much more important-appearing dealer than he would have been had not close to $12,000 worth of narcotics been purchased from him by the state. In this sense, then, in the "big case," narcotics police are inevitably a part of the dope ring they themselves help to create.
If drug damage is to be minimized, a research and evaluation component must be built into each policy, whether it be appropriations for the police or a treatment center. The existing control framework appears too narrow for this purpose: new institutions and measurement instruments must be devised. Refusal to adopt such techniques will preserve the condemnation embodied in the law, but do little to lessen the damage of drug misuse.
THE FUNCTIONS OF THE LAW
The condemnation dominating the law does not prevent indiscriminate drug use, nor treat it when it does occur—the law's manifest purpose. But, as we shall see in the next chapter, it actually frustrates those goals and opens a Pandora's box of other ills. The gap between the manifest purpose of the law and its actual effects suggests that the law serves other functions.
ENFORCEMENT OF MORALITY
One function of laws against the use and possession of drugs is that they publicly sanction the feeling of most people that drug use is morally wrong, even when no one is hurt. John Kaplâ'n,43 an advocate of marijuana reform, has articulated this feeling: "Like many Americans of my generation, I cannot escape the feeling that drug use, aside from any harm it does, is somehow wrong." Professor Kaplan, however, was able to separate his moral views from his legal judgment. Since the marijuana laws created heavy burdens for the legal system, he urged that penalties be dropped. Most people, however, are unable or unwilling to keep law and morality distinct. If drug use is wrong, they reason, it is perfectly natural to have the law express that judgment and punish the immorality when it occurs. Indeed, the need to enshrine moral sentiments in the law often obstructs the desire to lessen the damage from drug use.
Moral entrepreneurs seldom acknowledge their moral aims. Usually they rationalize their goal in terms of public health and order. With drugs, it can be convincingly shown that public health requires controls over distribution and manufacture; but it is less clear that criminalizing personal drug use contributes to that end. In the first place, drugs, except when unavailable, rarely incite crime or violence. While indiscriminate drug use may damage the individual, and by extension consume public resources, most (our second group of drug users) seem able to use drugs without suffering serious damage. Finally, as we have seen, criminal penalties do not deter people, and jailing people is an odd way of helping them.
Even if we assume that the laws are meant primarily to protect a person from his own worst tendencies, the moral import of the law is clear. We tolerate and even encourage riding in airplanes and cars, we overeat, imbibe huge quantities of nicotine and alcohol, climb mountains, sky-dive, and race cars—all at great risk to health, productivity, and the well-being of others. Yet only when personal risk involves drug-taking is stern disapproval forthcoming. Such inconsistencies suggest that the drug laws enforce a morality based on the wrongness of private drug use. The code is rooted in indigenous American values and an almost religious view of the nature of man and his place in the universe. According to this code, private, recreational drug use is wrong and must be punished, either because it allows us to achieve undesirable psychic states, or because it is an unacceptable way of achieving otherwise desirable experiences.
In a culture committed to hard work, competition, aggressiveness, sequential thought, and postponed pleasure, the passivity, pleasure, and escape from discursive thought provided by drugs seem wr6ng. Likewise, where independence and the self-made man are ideals, it seems destructive, or at best unfair, to find happiness, pleasure, and insight artificially, without the industry that usually precedes and lends such states value. The strictness of the standard, which like Victorian sexual mores condemns a single departure, implies a view of man as innately evil. So strong are man's desires, and so vulnerable the wall he erects against his evil instincts, that once the forbidden fruits are tasted, he will fall prey to his appetites. Thus, one shot makes an addict, and one marijuana cigarette often is thought to cause personality disintegration.
The strength of these feelings was evident in the reasoning of the lower court in the Leis case, which found marijuana to be harmful because, among other things, it causes "a euphoric and unreal feeling of exhilaration . . . an abnormally subjective concentration on trivia" and leads "the user to lose perspective and focus his attention on one object to the exclusion of all others."'" Such reasoning does not spring from a rational assessment of tangible injury to user or others. It rests on a subjective feeling that pleasure, contemplation, and inactivity for their own sake cannot be worthwhile, and are thus wrong.
It is not immediately apparent why the psychic states attained through drugs are undesirable. Even the bluest Calvinist knows some pleasures. If the court just quoted were consistent, it would permit laws banning television, van Gogh paintings, flowers, prayer, and mountain views. Indeed, such mental states are in some sense enjoyed and sought by us all. When they occur, they enrich our lives and are satisfying. Postindustrial society surely can survive without the same instinctual renunciation necessary in a frontier or developing culture. Indeed, as many historians have noted, we have left behind the era of production and moved into an era of consumption, with increased leisure for all, and a shifting attitude toward hedonism.
Nor is it natural for a technical culture whose material success is dependent on the manipulation of human and natural resources to recoil at the deliberate stimulation of desirable mental states. Drug use—the conscious alteration of consciousness—reflects the environmental control deeply ingrained in a technological society. It has been fostered by doctors and the pharmaceutical industry which, in teaching us that pills are a cure for pains, accustom' us to think of our minds and bodies as objects for chemical manipulation. Applying their teaching to psychic pain, anxiety, or other moods should neither shock nor alarm. More pressing than condemnation is the need to acquire the knowledge and techniques for extracting the full benefits of drugs with none of their costs. Used wisely—a goal not yet attained—it is possible that drugs will allow us to soften the rough edges of an overly mechanical modern society. There might seem a paradox in using the enemy's own weapons to defeat him; it points to the necessity for responsibility and discretion in the use of drugs.
The morality embodied in the drug laws is one pushing men to higher standards of excellence than they themselves would choose or than the essentials of social living require. The distinction, in the words of Lon Fuller,45 is between a "morality of aspiration" and a "morality of duty":
The morality of aspiration is most plainly exemplified in Greek philosophy. It is the morality of the Good Life, of excellence, of the fullest realization of human powers. In a morality of aspiration there may be overtones of a notion approaching that of duty. But those overtones are usually muted, as they are in Plato and Aristotle. Those thinkers recognized, of course, that a man might fail to realize his fullest capabilities. As a citizen or as an official he might be found wanting. But in such a case he was condemned for failure, not for being recreant to duty; for shortcoming, not for wrongdoing. Generally with the Greeks instead of ideas of right and wrong, of moral claim and moral duty, we have rather the conception of proper and fitting conduct, conduct such as beseems a human being functioning at his best.
Where the morality of aspiration starts at the top of human achievement, the morality of duty starts at the bottom. It lays down the basic rules without which an ordered society is impossible, or,, without which an ordered society directed toward certain specific goals must fail of its mark. It is the morality of the Old Testament and the Ten Commandments. It speaks in terms of "thou shalt not" and, less frequently, of "thou shalt." It does not condemn men for failing to embrace opportunities for the fullest realization of their powers. Instead it condemns them for failing to respect the basic requirements of social living.
When a person responds to frustration, anxiety, or unhappiness by taking a drug, we may think him inferior to a person who can without artificial palliatives sail through adversity; but we certainly should not blame him for failing to meet the highest standards of human excellence. People differ in personality, capabilities, and social circumstances. A rigid standard of independence, health, or the good seems unreasonable and impractical, however much we agree that the truly independent man deserves praise. Some simply lack the capacity to conform even when coerced; some choose other criteria of worth; and still others can attain their own brand of excellence only with the aid of drugs.
By enacting an aspirational standard into law and treating it as a component of duty, the drug laws dictate a congeries of values which in a heterogeneous democracy is the stuff of individual, not state, choice. The difficulties with denying the individual his own moral choices have been described by Herbert Packer: 46
The extent of disagreement about moral judgments is an obvious reason for hesitancy about an automatic enforcement of morals. There have been monolithic societies in which a static and homogeneous ethnic, religious, and class structure conduces to widely shared acceptance of a value system. But that is hardly a description of the reality of twentieth-century American society, or of its pluralistic and liberal aspirations. In a society that neither has nor wants a unitary set of moral norms, the enforcement of morals carries a heavy cost in repression. We don't begin to agree about the morality of smoking, drinking, gambling, fornicating, or drug taking, for example, quite apart from the gap between what we say and what we do. The more heterogeneous the society, the more repressive the enforcement of morals must be. And the more heterogeneous the society, the more foreign to its ethos that kind of repression is likely to be. Morals legislation is less likely to be socially damaging in, say, Portugal than it is in this country. In a society like ours, some tensions and some ambivalences are better left unmediated by the criminal law.
A SYMBOL OF POWER AND PRESTIGE
By enforcing a moral judgment about the wrongness of drug use the law also fulfills an important symbolic function. Laws operate both instrumentally and symbolically. In instrumental terms, laws are passed to influence behavior in a direction thought to be desirable. But passage or repeal of a law may also convey a meaning or signification totally unrelated to its instrumental aims. Often the two may conflict, with the unavowed and more powerful symbolic aim taking precedence.
For many years the drug laws have symbolized the limits of socially acceptable conduct and have marked off the deviant from the normal. Recently, with a new type of drug user and growing conflict over the drug laws, the law has come to symbolize more than a moral judgment.
One of the most significant social changes of the past decade is the emergence of youth as a critical social group. Youth, however, have been vociferously sacrilegious in their critique of social institutions. Not only have they aimed their shafts at government, foreign policy, the draft, corporations, and the universities; they have also flagrantly disregarded the sacred cows of traditional sexual and drug morality. Stung by this onslaught of revolutionary rhetoric, idealism and immorality, simultaneously an insult and a threat to their power, the older and more traditionally American social groups have fought back with all the weapons at their disposal. They have more money, power, and access to the political process, and thus have been able to use the lawmaking power to reaffirm the values and prestige damaged by the life-styles of the young. Inevitably the drug laws have been pulled into the conflict; firstly, because drug attitudes and use are sharply age-bound, and secondly, because the drug laws, with their moral implications, symbolize the divergent value systems and life-styles at the heart of the conflit.
The ability of a group to designate social norms and shifting structures of power, especially in a period of social conflict, as Gusfleld47 demonstrates in his study of Prohibition, indicates that the authority and the prestige of that group are still intact. Adherence to a criminal approach to drug use, despite its repeated failure and social costs, has thus come to symbolize that the insurgents have not yet won power. Thus, a pattern evasion of norms, whereby violation of the law is officially proscribed but unofficially tolerated, often exists, as with Prohibition and personal marijuana use. The important thing is that the law lends its prestige to the norms of one group without really affecting the practices of another.
Most drug legislation of the past seven years reflects this controversy and, indeed, cannot be understood without reference to the symbolic meaning that enacting or refusing to repeal a drug law conveys. We have described the anomalies in the scope and enactment of LSD legislation. While the case for banning all uses of LSD in health terms is difficult to sustain, the meaning of outlawing its use—exemplified in the down-to-the-wire race of the California and Nevada governors—is not. It states clearly and forthrightly that advocates of chemically induced utopias are deviants with no say in setting social norms. By the same token, enforcement of the law often has a symbolic impact far greater than its reduction of adverse drug effects. The first Stony Brook raid (200 policemen in 78 cars arrested a handful of pot smokers)48 and Operation Intercept (search of everyone crossing the Mexican border) were reaffirmations—the one local, the other national—that drug users were not to be tolerated. With so many young people waving the banner of legalization, repeal of marijuana-possession laws would also signify a victory for the current out-groups. Such a concession would validate the critique levied by youth against the system, and correspondingly decrease the status and power of the establishment. It would also remove one club by which the older generation have maintained their moral and political hegemony. This view explains the often irrational opposition to marijuana reform, and the flagrant disregard by lawmakers .of the law's social costs. Where legislators have heeded calls for reform, the legal changes have been minimal; changing the penalty from a felony to a misdemeanor makes little practical difference and in no sense departs from the view that marijuana users are deviant.
A third function performed by laws which, although unnecessary for health and order, condemn drug use is a psychological one. Maintenance of the drug laws in the face of growing criticism and dizzying social change reassures many people that their life-style and values have survived a serious threat.
Penal laws express society's view of the worth or desirability of behavior and, in doing so, confirm the righteousness of those members of society who share the views expressed in law. When conduct appears threatening, or when there is overt disagreement about its undesirability, it is doubly reassuring to see that standard embodied in a legal norm. The norm articulates social disapproval, announces a commitment of societal resources to eradicate the threat, and resolves doubts about what the standard should be. Now that drug attitudes and practices are thawing and the law increasingly attacked, a firm stance against drug use allays anxiety from two sources: (1) intrapsychic conflict and (2) social change.
Mr. Fry's fierce and tenacious attitudes toward drug use were, as we saw in Chapter 2, one way in which he mastered his own deeply felt but forbidden desires for passivity and pleasure. He felt better in condemning drug use because it represented a denial of feelings which he could recognize only at great psychic cost. Similarly, Blum" found the virulence of antidrug attitudes held by policemen to be a reaction formation against their own unconscious desires:
We suggest that the projecting police officer—or citizen—is, in fact, threatened by his quite accurate but partially unconscious understanding of what some users do mean or intend by their drug use. That threat mobilizes the individual's feelings about past trauma of his own, trauma experienced at the hands of parental authority during the difficult stages of learning order and suppressing impulse. These individuals respond with disgust, anger, revulsion, and fear, and "cleanse" themselves by the standard human ploy of making the enemy external, that is, of scapegoating. What is an inner problem is externalized; a private issue is added to a public one. If these be the dynamics, one must conclude that police involvement in drug control—for some—is a central personal issue in which stamping out drug use is symbolic self-policing as well as the performance of public duty. The emotionally aroused police officer who calls these users dirty and hates them for their "self-indulgence" is quite an accurate diagnostician, even though the diagnosis is in the service of his own defense system.
We suggest that the stubborn reliance on criminal sanctions to control drug use, despite the failure and high costs, is also rooted in an unconscious desire for what drugs represent. A whole menu of psychoactive drugs, promising everything from instant ecstasy and mystical union to ultimate orgasm, has been dangled before a public, as have cohorts of "flower children" and others who have accepted the promise of drugs and dropped out of work, striving for joy, play, and closeness to nature. For one who presses his nose to the grindstone and denies his impulses for the sake of a secure social niche, the temptation is disconcerting. Above all, it must be resisted, but in so doing, one suspects that something good and worthwhile has been given up. Rather than resurrect old traumas, it is much easier to keep the desires forbidden under strong legal wraps. Acknowledging ambiguity in drug use means wrestling with that ambiguity, and thus intensifying the disequilibriums touched off by the drug issue. An uncrossable boundary that denies ambiguity is needed. This the law—society's authoritative pronouncement that drug use is deviant—provides.
The drug laws also help people feel better by creating a safe harbor of stability against the gales of change. The cliché that ours is an era of unprecedented change locates a source of anxiety whose full ramifications are yet to be charted. Most social scientists agree that the more pervasive the change—that is, the greater the dislocation of the past—the more anxiety and resistance it generates. Inertia and fear of the unknown combine to create a dislike of change. People are reluctant to abandon a known and safe pattern for an uncertain future, however much change may be needed.
In a world fraught with change and its attendant anxiety, a reversal in the social position of drug use is particularly disturbing. Old attitudes and perceptions must be reexamined, one's personal position redefined, and one's responses to related issues reconsidered. In addition, there is the unpleasant recognition that the values that created meaning, defined personal worth, and located the transitional point between good and bad no longer stand impregnable. Future anxieties magnify the uncertainties of the world, and leave one uninterested in the balance sheet of the law's costs and benefits, or the sufferings of untreated drug misusers. In this context, the law becomes a pillar of stability and certainty and provides a bastion for the public, perhaps the last, against the onslaught of change.
CONCLUSION: THE PARADOX OF LEGAL CHANGE
Using law for functions unrelated to public health is, as we detail in the next chapter, a costly enterprise, and one that snares us in an insoluble dilemma. We are damned if we keep the present laws, yet their symbolic functions prevent us from taking steps in a new direction.
The situation has come about because the law, to fulfill its latent purposes, has focused increasingly on establishing the deviant status of drug use, and less and less on protecting users. The overinclusive, punitive, and other condemnatory features of the law, however, conflict with existing knowledge about drugs and, more importantly, conflict with the practice of millions of users who find drugs to be something less than the monolithic horror defined by the law. Out of this clash has sprung the controversy enveloping drug questions.
A shift in the law's emphasis from punishment to treatment would restore credibility on all sides and return drug use to a social setting in which damaging use could be dealt with effectively. The controversy would simultaneously diminish because, on the one hand, drug use would be officially recognized as a medical-social problem and, on the other, a sensible legal policy would allow the social consensus which the law's current vulnerability prevents.
The dilemma is that the unconscious needs served by the law and aroused by controversy obstruct the reorientation of the law that the interests of health require. The shift from condemnation to treatment requires a lowered commitment to the law's symbolic ends, yet only a reduced concern with the badness of drugs will halt its use as a surrogate. As long as the law makes drug uie criminal, latent functions will be served. The legal change tit would interfere with the notion of drugs-as-evil and lead to a less symbolic concern with the law is precisely what is needed, but the situation as presently structured does not permit this. Until this dilemma is resolved, the drug problem will remain with us.