Laws that penalize all nonmedical drug use have created serious problems, which in many cases are more disruptive than drug use itself. Not only have laws failed to cope with a revolution in drug use; they have also prevented the control of harmful drugs' effects, undermined the credibility of the legal system, and increased' social unrest. Legislative reluctance to consider these costs is a major factor in the drug controversy.

Until the drug explosion of the 1960s, it was relatively easy to ignore the side effects of a punitive drug policy. The costs of the law were by no means negligible, but because of the size of the problem 'only a small number of people suffered. Equally important, before 1960 the social context was not such that the impact of these costs was magnified and transformed into fuel for social conflict. But with a dramatic increase both in drug use and in hysterical opposition to the practice, the social costs have risen. The drug laws today touch directly the lives of between 10 and 20 million people; in an already unstable social system, these laws further undermine the credibility and integrity of democratic institutions. If the system is to continue to function, these costs can no longer go unheeded.

Three issues are highlighted by the growing costs of the drug laws. First, it is clear that legislation on a particular social problem largely determines the nature and characteristics of that problem. As we shall see, many of the most dreaded effects of drug use are a chimera created by laws that define drug use as an antisocial activity. So the first question policy makers must ask themselves is not whether unregulated use of a certain drug is harmful, but whether the action they plan to take will make the situation better or worse.

The second issue is whether, in view of the law's costs, it is worth having the law at all. Every law has its costs; the point is to balance these costs against the benefits of the law. In the particular case we are discussing, the social and financial costs must be weighed against the law's success in reducing crime, violence, and the adverse effects of unregulated use. Where these benefits are minimal, hard to ascertain, or the subject of hot dispute, legislators should take pause.

The third important issue is the law's potential for intensifying or defusing the drug controversy. From its very beginnings in the international opium conferences in the early twentieth century, American drug policy has studiously ignored the side effects of the law. At the Shanghai Opium Conference in 1909, America forced through a decision for total prohibition in the face of opposition from Britain that this would open the door to abuses far worse than the drugs themselves.' The lessons of Prohibition—widespread corruption and an increase in the consumption of hard liquor—are also ignored by politicians who today demand more stringent drug control. The costs in terms of crime rates, police corruption, and human suffering, of fifty years of denying addicts drugs, go unheeded. Drug policy has been formulated and reformulated without reference to its efficacy or consideration of the social fallout. But failing to take into account the problems created by the law indirectly causes the situation to deteriorate; this in turn leads to the call for more and stronger laws. This is the vicious circle that we must break.

Before we discuss in detail the costs of present drug laws, one caveat is in order. To weigh accurately costs and benefits, we should express many diverse and intangible factors in terms that can be measured and compared; assigning numbers to such intangibles would grossly distort the most serious effects of the law. So we shall not try to convert the problem into dollars. Even without this ultimate precision, however, we believe that we can demonstrate clearly that the law creates burdens that far outweigh its benefits.

A COUNTERPRODUCTIVE DRUG POLICY

One of the most serious charges against present drug laws is that they are, in fact, counterproductive. Criminal sanctions against drugs use are justified on the grounds that drugs cause crime and physical and psychological damage. But in our opinion, laws defining drug use as antisocial have intensified the very trends the law was intended to curb and have inspired in drug users antisocial tendencies they might otherwise never have had. This is not to say that drligs never cause harm to individuals and society; merely that prohibition does not deal with the problem and in many cases exacerbates it.

DEATH

A minimal aim of any sensible drug policy (and therefore presumably of our current laws) should be to protect drug users from death. But under the present system, users are forced to buy their supplies on the black market, frequently buying dangerously adulterated drugs. The result is that heroin was the chief cause of death for men between the ages of 15 and 35 in New York City in 1969. In the 1960s there were 3,000 more deaths as a result of narcotic use than there had been in the 1950s, and the median age of death dropped from 35 to 23. Figures are expected to be even higher in the 1970s. Particularly disturbing is the number of teen-age deaths. One fourth of the deaths in 1969 were among teenagers: 53 percent were under 25, and a number were 13- and 14-yearolds.2

There are two reasons for the high mortality rate, both arising indirectly out of the present state of the law. One is the unknown quantity of heroin in an illegal purchase. Dr. Michael Baden, deputy chief medical examiner of New York, observes: 3

Each shot is potentially fatal and each could be the last because the bags of heroin are distributed by so many different middlemen that the individual may get a varying quantity each time he uses it. If the next dose contains larger doses of heroin than the user has customarily taken, it can be his last—as the death statistics vividly demonstrate.

An addict is also at risk from contaminated heroin and dirty needles. Some 30 percent of deaths among addicts are traceable to tetanus, hepatitis, or bacterial endocarditis, all contracted from bad heroin or dirty syringes. Yet in most states heroin users are forbidden by law to purchase or possess a clean syringe, and it is impossible for them to be sure that their heroin is free of bacteria.

A drug policy concerned less with labeling addicts as social outcasts and more with minimizing the harmful effects of drug use could avoid these deaths in several different ways: it could provide addicts with standardized, pure doses of drugs, or at the very least make available clean syringes and immunization against tetanus and hepatitis.

CRIME

Drug use has long been popularly associated with violent crime. Indeed, this is a major justification for the policy of total prohibition. Yet evidence suggests that far from provoking criminal acts, the opiates, marijuana, and the hallucinogens actually reduce criminal impulses (other than the impulse to obtain the drug).

As the law stands, however, the addict user almost inevitably turns to crime to support his habit at inflated black-market prices.

Typical and notorious are the robberies by heroin users; they have become predators, ravaging our cities and suburbs for the wherewithal for their next fix. These robberies amount to $3 billion a year in New York City, and $400 million in Washington, D.C.,4 and this does not include the cost of the protective devices—window locks, television sets chained to the wall, etc.—that city dwellers are obliged to install. Where drugs are legally supplied to addicts, as they are in England, little of this crime occurs.

Addicts also turn to crime for reasons other than the need to pay for illegal drugs. The law defines the drug user as a criminal and a deviant, and he will frequently conform to this image. This is especially true once he has fallen afoul of the law. Criminal conviction is a particularly strong form of social condemnation. Conviction of a user may make both the user and others think of him as a criminal or "outsider." In this case, an individual who lacks support or who has personality difficulties will be confirmed in his negative image of himself, and this will make him more likely to turn to criminal activity.

Once a jail sentence has been imposed, an addict's future is marked out even more clearly. Prison brings him into contact with other criminals in a situation where their skills, ethos, and support are very readily transmitted. On leaving prison it is harder than ever for the addict to get a job and reenter the law-abiding world, and now he is equipped with skills for a criminal existence.

A significant factor in the user's assumption of the deviant role that is thrust on him by the law is his resentment at what he believes to be arbitrary or discriminatory treatment: he feels that he has been singled out for prosecution, while users of the same drug from different social strata, or users of socially accepted drugs, go free. Eldridge Cleaver5 expresses this vividly:

The others [black prisoners] I despised for wasting time in debates with the segregationists: why not crush them, put them in prison—they were defying the law, weren't they? I defied the law and they put me in prison. So why not put those dirty mothers in prison too? I had gotten caught with a shopping bag full of marijuana, a shopping bag full of love—I was in love with the weed and I did not for one minute think that anything was wrong with getting high. I had been getting high for four or five years and was convinced, with the zeal of a crusader, that marijuana was superior to lush—yet the rulers of the land all seemed to be lushes. I could not see how they were more justified in drinking than I was in blowing the gage. I was a grasshopper, and it was natural that I felt myself unjustly imprisoned.

There is strong evidence that the practice of habitually flouting the drug laws has diminished the force of law in general, and in many thousands of youngsters has resulted in skepticism toward all legal authority. At Woodstock and other rock concerts, thousands of mostly young people have openly violated the drug laws and escaped punishment. Many college students have no compunction about supplying their friends with marijuana—a serious felony in every state. They have learned that the law can be violated at considerable profit and relatively little risk. There comes, a point where regularly breaking the law with impunity reduces the power of the criminal sanction to deter, and the likelihood of behaving in a criminal way becomes greater. This was demonstrated at Stony Brook University. In the notorious 1968 police raid, when over 200 police arrested students for possessing marijuana, the students looked on in bewilderment. A year later, when police raided again, the students rioted, forcibly preventing the police from making arrests .°

Addict-related crime also erodes the respect for law among ordinary law-abiding citizens who buy stolen goods from junkies:7

But I was confident that I'd be able to pick up a stolen bike when I wanted one. If you can't get anything you want at Alice's Restaurant try the junkie market. In the 4 years that I've lived on the Lower East Side I've been offered stolen steaks, cameras, clothing, car accessories, watches, jewelry, toasters, TV sets, and just about every other item that can be shoplifted or carried downstairs in a pillowcase. The price was always right.

On the whole, the buyers at the junkie market would protest their respectability. Faced with the easy price of the junkies' loot, however, their scruples fade away.

ADVERSE DRUG REACTIONS

One reason consistently advanced for denying individual choice over the use of drugs like marijuana and LSD is that they cause anxiety, depression, paranoid reactions, and sometimes more serious psychological disturbances. It appears now that psychoses do not occur so frequently as was originally thought, but undoubtedly these drugs can in some circumstances produce adverse psychological reactions. As we saw earlier in this text, the action of a drug depends on three things: its inherent pharmacological effect, the personality and psychological set of the user, and the setting in which the drug is taken. Since relatively few people experience adverse reactions, set and setting appear to be the key variables.

Part of the set and setting of nonmedical drug use is the prevailing public attitude that labels it an immoral and destructive activity. Thus, it must be practiced clandestinely and in an atmosphere of fear and suspicion. This contributes to toxic drug reactions in several ways. The novice user comes to marijuana with a fund of officially disseminated misinformation about intoxication, and one major source of adverse reaction to the drug is the violent anxiety novice users experience at an unexpectedly strong dose of the drug. At one time, half of the patients suffering from acute toxic reactions at the Haight-Ashbury Medical Clinic were novice users. Most of them were straight people over 25 years of age. David Smith,8 director of the Haight-Ashbury Clinic, states:

We have seen cases where the mild increase in heart rate that occurs with the early stage of marijuana intoxication was interpreted under increased sensory awareness as resembling the onset of a heart attack with a subsequent anxiety state.

Official warnings have threatened the marijuana user with insanity. The altered state of consciousness, sense of time, and sensory awareness, and the impairment of short-term memory and verbal facility may appear to the novice user to presage derangement. As long as marijuana is illegal and is reputed to produce psychosis, novice users will lack the knowledge of how the drug works, which would enable them to avoid toxic reactions.

The social setting increases the likelihood of adverse psychological reactions to marijuana by creating a negative mood or set in the user. This is especially frequent in the novice user and in those who are not full-time members of a drug subculture and fear the consequences of discovery. David Smith9 describes this situation:

In many cases, however, it is the marijuana use itself which creates the stressful situation. Since marijuana use in the United States is illegal and most of us have been exposed to strong warnings about its dangers, the novice experimenting with marijuana often finds himself in an emotionally charged situation. He may fear discovery and arrest with consequent loss of respect, loss of job, straining of family relations, and possible incarceration. He may harbor secret fears that marijuana intoxication will produce physical damage, will make him lose control and do things that he will not want to do, or will drive him insane. Such a strong negative attitude toward marijuana can, of itself, produce sufficient stress to create a state of panic when the influence of the drug is felt. The altered mental state produced by the drug seems only to confirm the fears, and a full-blown anxiety reaction develops.

With LSD, the social setting created by the law is even more crucial. Apart from the dangers of bad acid, the public hysteria about LSD (it "destroys the mind," "transforms the personality," etc.) may induce in the user fear, guilt, and other elements of a negative set.

LSD is indeed a powerful drug, and the length of its effect—between nine and fourteen hours—makes the physical setting particularly important. But most researchers are agreed that if one remains in an appropriate setting, with an experienced user as guide throughout the experience, panic or anxiety can be averted or handled calmly. The fact that the drug is illegal prevents even this minimal safeguard being taken. People take LSD as opportunity permits—some use it on the subway, while driving, or on the street, circumstances in which the drug's potential for psychic damage is most likely to be fulfilled.

The present law actually deters drug users who suffer adverse reactions from seeking medical help. A statute found in many states requires:1°

Every physician and every hospital treating persons suffering from the chronic use of narcotic drugs (defined to include all drugs, even marijuana and LSD) shall within 72 hours of the first treatment therefor furnish the Department of Public Health with a statement in duplicate containing the name, address, height, weight, date of birth, color of eyes, color of hair, date treated and the name of the narcotic drug the person used or suffered from. Such information shall be made available for the use of any agency of the Commonwealth or of the United States which may require it.

The result is self-medication, or no help at all. Self-medication can be disastrous--for example, Thorazine (an antidote to LSD) used with STP intensifies the latter drug's worst effects. Either way, the symptoms are aggravated.

MULTIPLE DRUG USE

The present drug policy, particularly with reference to marijuana, is frequently justified on the ground that there is an inevitable progression from the use of one drug to the use of more powerful and dangerous drugs. If such a progression did exist, laws directed against the "initiator" drug might well be in order. But much drug use today is multiple use: hallucinogens, stimulants, and depressants are often used simultaneously or sequentially, and progression has never been proved. Any progression from the use of one drug to another is more likely to arise because all drugs are illegal, for the following reasons:

Since all drugs are lumped together, and purveyors of drugs usually sell several different types, there are frequent opportunities to try new drugs. Also because of their illegal status, an immense glare of publicity surrounds drugs, and thousands of youngsters have decided to try them because they have been so repeatedly thrust in front of their noses.

Officialdom's very attempts to tighten up on marijuana have turned people on to other drugs. Operation Intercept in the fall of 1969 illustrates this. The Nixon administration attempted to cut off the supply of marijuana by initiating the largest search and seizure operation in American history. Everyone crossing the border into the United States from Mexico was stopped and searched. The supply of marijuana was sharply cut of, with the result that people who had previously used only marijuana turned to whatever drugs were available. There was an upsurge in heroin use among suburban, white, middle-class high school students shortly after Operation Intercept.11

The total prohibition of drugs, setting them all on an equal footing, has led to multiple use also by preventing education in the effects of different drugs. The official warnings suggest thAt every drug is almost indescribably evil, with the result that young users have come to disregard every official pronouncement on the subject. Educators are presented with a dilemma described well by Professor John Kaplan :12

The difficulty is that the drug educator, along with waraing students of the dangers of some of the extremely dangerous drugs that are sometimes used in the student culture, is required to discuss marijuana. Unfortunately, the issue of whether marijuana is more dangerous than alcohol will arise, and the educator cannot avoid the subject merely by saying that the penalties are too high. The students will press him again and again until he discusses the issue. He will then find himself in a very difficult position.

He can say that, except for the chance of getting caught, there is no good reason to believe that marijuana, as used in the United States, is more dangerous to the individual than is alcohol. If he says this, the student will believe him, but he will then risk being charged with encouraging a violation of a serious nature and may lose his job.

Unfortunately, with the regrettable capacity of the young for overgeneralization, they will conclude that the educator may be equally wrong about amphetamines, LSD, barbiturates, and perhaps even heroin. The inevitable controversy over marijuana—which is, after all, by far the most widely used illegal drug among students—will then compromise the entire process of drug education. Many young people, after unfortunate experiences with LSD, have explained their rashness in trying the drug on the ground that "I knew our drug education program was lying about marijuana so I thought they were lying about LSD too."

A similar phenomenon may explain the spread of heroin among American soldiers in Vietnam. After the news media exposed extensive marijuana use, the army mounted a powerful campaign to stamp it out. The enlisted men quickly adapted, and turned to heroin, which was less bulky, odorless, and thus "safer" to use. Whether true or apocryphal, the oft-repeated statement by drug-using men was "I can salute with my right hand while I'm taking a hit with my left, and blow the smoke right in the old man's face, and he would never know."13

Multiple drug use, particularly among marijuana users, can also be explained by the subcultural atmosphere in which marijuana use takes place. Erich Goode" observes that "the most significant fact about marijuana use is that it is overwhelmingly a group activity; the drug, in other words, is highly `sociogenic'—or 'cultogenic.' The drug is used in a group setting, usually among intimates who share many of the same values and will come to share more and more as a result of progressive group involvement. Other drugs will be regarded favorably, and opportunities for taking them will increase.

It is unlikely that marijuana would be so highly cultogenic if it were legal. Its very illegality pushes drug users into a subculture in a number of different ways. Firstly, there is the need to get hold of the drug, which inevitably leads to contact with other people sympathetic to drug users. Secondly, because it is illegal, marijuana is a relatively scarce product which has to be used economically: there is a great sense of intimacy among marijuana users sharing a single "joint" or pipe. A third factor is the legal definition of marijuana users as deviants or criminals The members of the subculture escape isolation and ostracism and reinforce each other in their choice of drug and their feelings of alienation from the system. A change in the law might well alter this situation. Erich Goode15 observes:

The less deviant and criminal marijuana becomes, and the more easily obtainable it is, the less its use becomes "special" and therefore significant. Under these circumstances, a detribalization occurs, and marijuana loses its subcultural impact, and its socializing power. And, possibly, the less susceptible users will come to favorable definitions of using the more potent drugs. Ironically, legalization might, for this reason, very well reduce the likelihood of users progressing to heroin and LSD.

LACK OF TREATMENT

The punitive approach of the law has left us unprepared to.deal with the very real problems of drug misuse. Surprisingly little is known about addiction and its cure, as the conflict over whether addiction has metabolic or psychological roots shows.

Basic clinical data on marijuana and its effects were not collected systematically until 1968. No one has charted a dose-response curve, gathered conclusive evidence on marijuana's capacity to impede motor functioning, or described the circumstances in which use is likely to be dangerous. As a result, treatment of overdoses and toxic reactions is crude, no antidote exists, and society is lumbered with costs that could have been avoided. Standard treatment for the majority of drug addicts is still cold turkey in a jail cell. The work of such organizations as Synanon and Daytop is hampered by unanswered questions on whether an addict- or psychiatrist-run community is more effective, or indeed whether adjustment outside the community is possible at all.

Education, on which concerned citizens, officials, and politicians pin their hopes, is an unknown quantity. Compulsory education on drug abuse is now required by Massachusetts state law for the primary grades; drug police and advertising agencies have been enlisted; television and radio blare out the dangers of drugs. Yet no basic research has been conducted to discover whether these efforts are an economical use of resources, or whether, indeed, they may cause more drug use. Dr. Matthew Dumont, director of the Division of Drug Rehabilitation in Massachusetts, said:16

We simply have no idea what are the effects of drug education. Whether drug education as we have known it prevents or stimulates the use of drugs is unknown. Our schools can't seem to teach anything effectively so there is no reason to believe they will have any more success with attempting to teach young people not to use drugs. Drug education, like all aspects of any approach to the drug problem, should be carefully and systematically analyzed and evaluated before it is put into use.

Another barrier to effective treatment is the lack of resources for dealing with adverse drug reactions. Again, let us look at the situation in New York. There are estimated to be between 100,000 and 200,000 heroin addicts in New York City, of whom 25,000 are thought to be teenagers. Out of the city's budget of $6.6 billion in 1970, $13 million, or 0.2 percent, went for addiction service programs, and of that only $3 million is put up by the city." On the state level, the Narcotic Control Commission in 1969 had less than 15,000 addicts in treatment, despite huge capital ,outlays for confinement centers. An addict seeking help cannot obtain emergency treatment and might have to wait a year to get into a methadone or therapeutic program. What does he do in the meantime? He might die, or as The New York Times reported: 18

One addict said he stole $55 from a waitress after a doctor at Bellevue advised him to "go to the Salvation Army and get a square meal." Another addict who could not get help at Metropolitan Hospital threw a garbage can through a bar window and stole $300.

For the 25,000 juvenile addicts, the situation is even sadder. Odyssey House, run by Dr. Judianne Densen-Gerber, is the only house catering to juvenile addicts. It cares for 135 children and is dependent on donations. The city has seen fit to issue it a summons for overcrowding.'°

At the same time, law-enforcement funds increase steadily. In less than ten years the federal government has spent over $75 million on drug-law enforcement and tripled the number of enforcement personnel.2° If figures on similar trends in all fifty states were ascertainable, a true picture of the extent to which enforcement diverts scarce funds from treatment would emerge.

OBSTACLES TO CONTROL

Drug control is obstructed by two features of the present drug laws. One is the public attitude nurtured by the punitive laws: the drug user is seen as a criminal, and punishment rather than medical treatment seems the most appropriate way of dealing with him. If not a criminal, he is viewed as a "junkie," who must be kept away from respectable people and not pampered in his wicked desire for drugs. Donald Miller,21 chief counsel to the Federal Bureau of Narcotics and Dangerous Drugs, explains the bureau's objections to the use of methadone:

The Bureau does have a vital role . . . to alert society as to the possible pitfalls and to caution against mass acceptance of a theory which could adversely affect our society by increased
addiction. . . .

Will there be any deterrence when potential users are assured that there will be no ill consequences from drug experimentation; indeed, that addicts may even receive preferential treatment? What will be the result of having no social stigma against addict-proselytizers in our communities?

Thus, the response has been, on the whole, punitive. Even the civil commitment programs that have sprung up since Robinson v. California seem to have confinement rather than therapy as their chief purpose.

The second obstacle created by the law is the lack of funds for research into the use and effects of drugs. A vast body of information on the effects of marijuana exists in the minds of the millions of users, but it cannot be tapped because the drug is illegal. The legal and administrative hurdles that drug researchers must vault are many and high. Some drugs cannot be prescribed, even to research subjects; others are unobtainable. The technicalities of obtaining funds and permission are intricate and deter all but the most stalwart. One of the authors of this book spent nine months persuading federal, state, local, university, and police officials to allow him to conduct a simple marijuana experiment.

Even where funds are made available, legal restrictions on the research considerably diminish its value. There is a remarkable preponderance of studies of the effects of marijuana, LSD, cocaine, and heroin on animals; in the few involving human beings, the experimental settings are quite different from those in which marijuana use will ordinarily take place. These restrictions are rationalized on grounds of safety or to prevent the drugs from getting into the wrong hands. However, the extraordinary and severe difficulties some researchers have faced suggest to us that the funding bureaus prefer research that does not contradict official policy. Experiments showing that marijuana is a drug milder in its effects than commonly thought have been officially denounced as "dangerous" and "irresponsible"; the results have been distorted and the experiments have had to end.

COSTS TO THE LEGAL SYSTEM

Over the past ten years there has been a deterioration in the relationship between the citizen and society and the law. There are two elements in this turn of events. The first is the law-and-order controversy: the rising crime rate, the apparent disregard for the law which is becoming more and more commonplace, leads many people to believe that existing laws can no longer maintain the order necessary for personal security. The widespread violation of the drug laws has intensified this fear, and at the same time has goaded the police into certain practices contrary to the rule of law. Thus, citizens and police have become alienated from the law and from each other, the credibility and integrity of the legal system have suffered, and the problems of our complex society have become less susceptible to legal solution.

The second element in the deteriorating relationship between society and the law lies in the very complexity of the massive problems of a postindustrial society. They range from the tensions of world politics, a threatened environment, and the population explosion to new attitudes toward government, corporate responsibility, and individual liberty. Old institutions must be overhauled and new power structures evolved to meet the challenges of pervasive and continuous change. A legal system that cari impose order without strangling innovation is essential, but as the influence of the law is eroded it is gravely handicapped in this task.

Against this background we turn to the problems that a punitive approach to drug use has created for our legal system.

DIVERTING RESOURCES

Increased demands are being made on our undermanned and overworked police force. The courts dispense a revolving-door type of trial-less justice, where 95 percent of cases are disposed of by negotiated guilty pleas and where trials in the lower courts sometimes last five minutes. This rough semblance of justice is further attenuated by high caseloads for probation officers and crowded jails. In New York City the backlog of criminal cases numbered over 200,000 in 1970. Some 177,000 arrest warrants for bail-jumpers were outstanding.22 In a little over two years, drug enforcement added over 100,000 new cases to the workload of the courts. This system does not protect the public, or treat defendants fairly, and cannot rehabilitate its criminals As the pressures on the system mount, failures of enforcement and arbitrary dispositions will become the rule, and genuine law and order an elusive goal.

The criminafization of drug use has added to the staggering burdens disrupting the law. In 1968, there were 34,000 adults and 15,000 juveniles arrested in California for marijuana alone, a figure ten times greater than that of 1962.23 A study of the Los Angeles Police Department has shown that a simple marijuana arrest consumes six to eight hours of a policeman's time.24 When arrests result from stake-outs, undercover work, or raids, the drain is even greater. And even so, nothing like full enforcement of the law is achieved. Many cities and towns are creating or expanding specialized drug units. Often this entails a reallocation of men from other units or monopolizes increases in manpower. In New York City, some 200 men were transferred in March of 1970 to drug units, making the drug police there 700 strong.25 Federal drug police have tripled in number, while the Customs Bureau has recently added 300 men to deal with drugs.26 An accurate estimate %of the police time diverted by drug policy should also include time spent on theft, burglary, prostitution, and other crimes growing out of drug addiction. Complete accuracy is impossible, but it is estimated that in California in 1968 the drug laws consumed $75 million of police resources.27 The national total in 1970 is estimated to be over $1 billion.

Leaving aside the questionable nature of the benefits of such numbers, in many instances police time appears to be wastefully employed. In Houston, as in many other major cities, numerous agencies suffer from overlapping jurisdiction and little coordination: 28

Both federal and state agencies are active in drug detection. At the county level the sheriff's department functions both within the city of Houston and in the rural areas of Harris County. Within the urban complex there is, of course, the Houston Police Department as well as smaller departments operating out of small communities in and adjacent to Houston. It is conceivable that an individual under suspicion of misusing drugs could be pursued simultaneously by numerous police agencies. Thus, a person might attend a school located in the Village Police Department's jurisdiction and might live in a house located in the Houston Department's bailiwick. He would be subject to the sheriff's scrutiny as well as the State Department of Public Safety's concern and might even be under surveillance by the Federal Bureau of Narcotics and Dangerous Drugs. Five different enforcement agencies—each possibly acting independently and without knowledge of the others—would be focusing on one individual. . . This overlap is presently resolved only by informal cooperation among the agencies. There is no law establishing enforcement priorities. Neither is there any formal organizational structure that helps minimize friction among the agencies.

Most arrests involve marijuana, perhaps the least dangerous of the illegal drugs. In California 40 percent of the marijuana violators were first offenders, and 60 percent of these cases were dismissed without trial.

The drug laws also burden the postarrest stages of the criminal process. In Los Angeles in 1968, 17 percent of the felony complaints issued in one six-month period were for marijuana.29 Most of these cases never went to trial, but valuable prosecutorial time was used up. If a defendant elects a jury trial, he may have to wait up to a year; if he cannot make bail, he will remain in jail. 11n a case reported in 1970 a deaf-mute who had been mistakenly identified by an undercover agent as a drug seller was held without bail for five months.3° Courts and prosecutors must prepare and hear the case. Probation officers file reports and supervise sentences. Appellate review may be sought. Finally, a prison term may be unavoidable. With mandatory minimum penalties for many drug offenses, drug offenders crowd state and federal prisons. Throughout the 1960s at least 10 percent of federal prisoners were drug offenders serving an average of five-year sentences.

We have reached two conclusions: First, an accurate cost accounting system is needed to ascertain the full cost of enforcing the drug laws. Second, even without a precise cost analysis it is clear that elimination of use and possession offenses would free the process to deal with more serious drug offenses and nondrug crimes.

EROSION OF THE RULE OF LAW

Perhaps the most serious legal cost is the effect on the rule of law. The rule of law, the basic feature of a democratic society, imposes legal restraints and orderly procedures on the state's use of power. It ensures that official power is exercised fairly, and it protects against the abuses of unfettered discretion and arbitrary power. Without the rule of law, individual liberty is at the mercy of the police. The drug laws offer in many respects a paradigm of official power operating outside legal control.

This situation arises largely because drug offenses are on the whole "victimless" crimes. Possessing or using a drug is usually a private act. Even drug sales occur in private with other consenting person. Drug offenses seldom impinge so forcefully on others that they feel impelled to notify the police. Professor Herbert Packer31 has outlined the consequences of victimless crimes for law enforcement:

To the difficulties of apprehending a criminal when it is known that he has committed a crime are added the difficulties of knowing that a crime has been committed. In this sense, the victimless crime always presents a greater problem to the criminal process than does the crime with an ascertainable victim. But this problem may be minimized if the criminal process has at its disposal measures designed to increase the probability that the commission of such offenses will become known. If suspects may be entrapped into committing offenses, if without evidence that he has committed an offense, if wiretaps and other forms of electronic surveillance are permitted, it becomes easier to detect the commission of offenses of this sort. But if these measures are prohibited and if the prohibitions are observed in practice it becomes more difficult, and eventually there may come a point at which the capacity of the criminal process to deal with victimless offenses becomes so attenuated that a failure of enforcement occurs.

The policeman is presented with a dilemma. He is under pressure to enforce the law, yet lacks the tools to do so; he must devise techniques to provide himself with the necessary information. At this point, operational efficiency conflicts with the legal limits of police powers. For the policeman, the overriding value is the enforcement of the law. Perhaps understandably, he is less sensitive to the necessity of enforcing the law according to the Constitution, especially when that seems to impede law enforcement. One result of this situation is that a great deal of illegal activity goes on on the part of the police; another is that the legal limits to their powers are expanded. Both results are inconsistent with the rule of law, for the first disregards law, and the second removes larger areas of official action and power from legal scrutiny. In practice, therefore, essential democratic values are sacrificed on the altar of the drug laws, and this affects the power of the law to regulate our lives effectively.

SEARCH AND SEIZURE

The chief technique used by the police to detect drug offenses and obtain evidence for prosecution is to search a person or his`property. Unless the policeman has a warrant or has arrested the suspect, he has no legal right to search an individual. In the case of Mapp v. Ohio, 360 U.S. 1, the Supreme Court recognized that the only practical means of enforcing this rule was by excluding illegally seized evidence. This situation has created considerable hostility between the courts and police.

A glance at some of the landmark decisions of the Warren Court in the area of criminal procedure reveals some of the practices resorted to by police in their efforts to enforce the drug laws. They have pumped stomachs, probed rectums, and arbitrarily searched people suspected of carrying drugs. It is not clear whether the exclusionary rule has eliminated most of the illegal conduct. Jerome Skolnick,32 in an empirical study of police practices in a large norther California city, finds:

The practice of making an unlawful exploratory search of the room of a suspected criminal is, so far as I could tell on several occasions, accepted by both the Westville police and the state police. As one policeman commented: "Of course, it's not exactly legal to take a peek beforehand. It's not one of the things you usually talk about as a police technique. But if you find something, you back off and figure out how you can do it legal. And if you don't find anything, you don't have to waste a lot of time."

There is considerable evidence that the police will evade the constitutional imperative of probable cause before search by making an arrest and then lying in court about the circumstances in order to establish probable cause. Paul Chevigny,33 in his study of police abuses in New York City, describes several incidents in which police search illegally, find drugs, and then testify in court that they saw the drugs first. In one case, the police simply barged into the apartment of a "hippie" on the lower East Side and found him mid friends smoking pot. In court their testimony was that as someone was leaving the apartment, they saw the defendant holding contraband.

More frequently, the search occurs on the street. One patrolman in uniform stationed himself outside a "head" shop that sold cigarette, papers and pipes. As individuals who appeared to have purchased these implements came out, he would stop and search them, in a nearby hallway. In court the officer testified that he actually saw a marijuana cigarette being carried or passed back and forth between two persons in a hallway. He lost his case when it was pointed out that the hallway had six high steps leading to it, and could not be looked into by a policeman standing in the street.

The particular vice of these illegal searches is the dishonesty induced in the police. From the policeman's point of view it is reasonable to stop and search someone he "knows" is using drugs. Indeed, to him the drugs then uncovered prove how reasonable the search has been. Yet, since Map p, the law is different, and the policeman is caught in a bind between the law and his perception of his duty. To fit within the law, the policeman will commit perjury—a pattern of conduct one does not like to see in policemen testifying in court where the liberty of individuals is in question.

The police perjury resulting from this conflict is nowhere better evidenced than in the "dropsie" case—by now a familiar term to police, prosecutors, and judges in urban areas. In case after case the policeman claims that he was observing the defendant, who then dropped (whence the term "dropsie") or abandoned a small packet or object that contained drugs, whereupon he was arrested. In a typical dropsie case there will be no reason why an individual would openly discard an expensive drug in the presence of a stranger, especially if that stranger is wearing a uniform. In People v. Bueche, a typical New York drug case, the defendant, an addict of many years familiar with police practices, according to the police not only exhibited heroin "in broad daylight on a public street in full view of others, but would be so startled at the approach of a stranger in ordinary street clothes [the cop] that he would make his possession of contraband even more visible by throwing it down at his feet, and then stand there next to it, inviting arrest."34

An empirical study of police searches before and after Mapp corroborates the testimony of thousands of defendants that the police lie as a matter of course in "dropsie" cases. Sarah Barlow35 found, after analyzing the arrest affidavits filed in Manhattan Criminal Court in drug cases, that the percentage of cases in which abandonment was alleged by all policemen rose from about 14 percent in 1961 to 31 percent in 1962, and for specialized narcotics police, it rose from 14 to 47 percent. During this same period the number of drug misdemeanor cases dropped about 30 percent for the police in general and 47 percent for the narcotics police. The unavoidable conclusion is that while Mapp did succeed in reducing the number of unlawful searches, if the police wanted to arrest someone on drugs, they would search him illegally and manufacture a "probable cause" situation in court.

Further support of the prevalence of suspicious dropsie testimony recently came from a judge of the New York City Criminal Court who has been involved in hundreds of drug cases. Faced with the conflicting testimony of police and defendant, the judge observed: 36

Were this the first time a policeman had testified that a defendant dropped a packet of drugs to the ground, the matter would be unremarkable. The extraordinary thing is that each year in our criminal courts policemen give such testimony in hundreds, perhaps thousands, of cases—and that, in a nutshell, is the problem of "dropsy" testimony. The difficulty arises when one stands back from the particular case and looks at a series of cases. It then becomes apparent that policemen are committing perjury at least in some of them, and perhaps in nearly all of them.

A more recent study of marijuana enforcement in San Mateo County, California, uncovered questionable searches in fully one fifth of the arrests selected at random. The following are typical examples:37

In one case officers stopped to question four young men parked at night in an exclusive residential area. One officer stated that when he requested identification from one occupant, "as he was leaning to one side to remove his wallet from his pocket, I was able to' notice vegetable-botanical material underneath his foot on the floorboards." Twenty grams of marijuana were discovered when the car was searched. This was one of five cases in which officers claimed that from outside a car at night they were able to observe marijuana seeds, marijuana debris, or a single roach inside the car on the floor. In assessing the officer's explanations, it should be noted that the interior of an automobile is dimly lit, if at all, that the floor is generally covered with a dark carpeting or rubber mats, that dirt and other debris are usually present, and that seeds and particles of marijuana rarely exceed one sixteenth of an inch in any dimension.

In four instances in the sample, the case for probable cause was based in part on the officers' testimony that they detected the odor of burning marijuana. That odor is distinctive. In one of these cases, however, the officer claimed to have detected it in an open park; and in another it was claimed that the smoke came billowing out of an automobile in "great amounts" when a window on the passenger's side was lowered, even though this occurred some time after the door on the driver's side had been opened.

At times illegal searches turn into systematic patterns of harassment. Recently thirty-seven persons sued the New Jersey State Police for their alleged policy of searching, as a matter of course, long-haired persons who travel the New Jersey Turnpike, known to youths as "Bust Alley," in the hope of turning up drugs. To substantiate its charge that the "Fourth Amendment doesn't exist on the New Jersey Turnpike," the suit claims that thousands of persons have been illegally stopped for no other reason than their long hair.38 Tolerance of such practices excites resentment against the law among those searched, especially when they are innocent, and, of course, encourages the police to operate illegally.

UNDERCOVER ACTIVITIES

There has been a noticeable increase in the use of undercover agents, spies, and informants by the police in their efforts to enforce the drug laws.

The undercover work takes several forms, engages valuable police time, and causes a resentful and suspicious atmosphere. Typical was a case decided in 1970 by the Massachusetts Supreme Judicial Court, in which a state police undercover agent was introduced into a teen-age group in a small Massachusetts town upset about its supposed drug problem. He repeatedly telephoned the defendant asking him to get him some drugs. Although a user of marijuana and familiar with the local drug scene, the defendant was not a seller. After repeated solicitations, he introduced his newfound "friend" to someone who was. Stupidly, the defendant stood between the cars of the seller and the agent and helped transfer the drug and money. He was prosecuted for sale and possession of a narcotic, and sentenced to five years imprisonment.39

In Houston a study4° revealed that both police and school officials had engaged students as informers:

In addition to receiving information from parents (some of whom do spy work of their own) and students who occasionally volunteer information, the Village Police have enlisted student informants for detection of drug abuse among high school students. These students are not paid for their work, but some of them . . . have been picked up by the Village Police and have agreed to cooperate rather than have charges filed against them. The student informants keep an eye out for the location of parties, who has drugs, and when sales are to be made. They make a buy from a student and report back to the Village Police. The practice . . . is not to arrest a seller after the sale to an informant buyer so as to preserve the anonymity of the informant but rather to let the informant stay friendly with the seller. When the seller arranges another sale to another buyer, the informant repots the time and place to the police and then they move in for the arrest. . . . One administrator admitted that he has two seniors that play undercover and that he is training two sophomores to take their place. . . . These two relay information back to him and make buys from other students not only from his school but also from students from other schools in cooperation with other school administrators.

One school administrator was found to be quite active in law enforcement and seemed to enjoy the role. He had several students in the school acting as informants and had a couple more in training. One of his students was on loan to another high school for a law enforcement assignment.

Several universities have permitted or actively encouraged undercover police to pose as students to obtain information about drug activities. At Hobart, Fairleigh-Dickinson, and Cornell this has provoked a number of angry incidents.

Besides wasting police time, these practices raise several problems. First, there is little or no judicial control of police in these circumstances. The legal doctrine of entrapment offers little protection; it did not prevent the Massachusetts youth from going to jail. Second, the agent or informant will often have committed the same offense as the person arrested, yet he will not be punished. Third, student informants are exposed to violent retaliation for their role in law enforcement. Even more serious, the informant may use his position to satisfy personal grudges, or in an excess of zeal, encourage crime in the innocent. The Houston practice evoked these comments from the police:41

The police admit that using juveniles in this way could be dangerous, and say they always get parental permission. So far, no student informant has been assaulted by a deceived seller. The police report that they have had difficulty at times keeping student informants quiet about what they are doing. Sources at the high school reveal that the Village Police are not always successful, for at least one of their informants is known because of his talking too much. There have been attempted frame-ups whefe one student has gotten mad at another, planted something on him, and informed the police. More than once the mad student has been a girl just jilted by her boyfriend. Village Police feel they have always caught these instances before charges were brought against an innocent person.

Another objection is that it is unethical to use juveniles to spy on one another. It generates suspicion and hostility which mar the friendly atmosphere of university or social gatherings and contribute to the negative set and setting of drug use. There have been cases where undercover agents have killed persons in dubious circumstances and escaped punishment.42

Besides, spying further alienates students from legal authority and can provoke violent reactions. At Hobart College in May 1970 police attempted to arrest five students on drug charges. They had received their information from a police agent who had infiltrated the campus. There was a violent confrontation between 50 policemen and 500 students, and when the police were trapped inside their cars, they were forced to free the arrested students and drop the charges.43

EXPANSION OF POLICE POWERS AT THE EXPENSE OF PRIVACY

Many provisions of the drug laws make sense only as a means to enforce more basic prohibitions. For example, policemen will often justify the criminal status of illegal possession on the ground that it helps them to arrest pushers who are difficult to detect in the act of sale. The offense of being present where drugs are kept enables the police to dispense with having to prove which individual in the group was in possession. Addiction, a crime declared unconstitutional in 1962, enabled the police to prosecute addicts without, having to prove either possession or sale. Rather than helping to enforce the provisions against sale—surely the most important target for drug laws—this category of crimes primarily affects users and innocent people who happen to be in their company.

The moral ferment about drugs makes courts and legislatures willing to expand police powers. For example, entrapment is almost null as a restraint on police activity, on the ground often reiterated by appellate courts that the police need such powers to counter the narcotic menace. More recently, postal officials have made it a practice to search mail and packages for drugs."

When a drug "crisis" occurs, the usual response is to strengthen the policeman's hand. We have seen how in 1956 the Price-Daniel Act imposed long, mandatory minimum sentences for drug offenses, ostensibly to help the police catch drug sellers; in practice, however, it transferred judicial discretion over sentences to the police.

More recently, the police have been granted broad wiretapping powers in drug cases (a similar development has occurred in Sweden), and Congress has passed a provision allowing police with a search warrant to break into the home of any suspect without knocking or otherwise identifying themselves. The rationale for this is that it will prevent suspects from destroying illicit drugs before the police can enter. It is doubtful, in fact, whether this power will help the police to apprehend pushers, although it is sure to increase hostility toward the police. As Geoffrey Stokes,45 of the Addiction Services Agency of New York City, points out:

The logistical difficulties attendant to flushing a kilo of marijuana down the toilet, or of burning a similar amount of heroin, are such that the no-knock provision is simply not needed to reach the dealer, who would be likely to have substantial amounts of any illegal substance. Its inapplicability has long been recognized in New York State, which has had a no-knock provision for years. Manhattan District Attorney Frank Hogan's office reports seeking no-knock authority in only three out of 903 narcotics cases last year. . . . In fact, the no-knock provision is of use only against persons who are likely to possess a relatively small and easily disposable amour of a drug: that is to say, against typical younger activists like (and here the examples the police use of a drug charge in a political context are factual) Mark Rudd, Abbie Hoffman, Jerry Rubin, and Huey Newton. In short, the bill attempts to legitimize Stony Brooks, the kind of promiscuous midnight raid on a college dormitory which yields large headlines, but no progress against the forces which control illicit drug traffic in America.

Among current proposals for dealing with the drug problem in New York City is a plan for preventive detention of drug addicts suspected of crime. District Attorney Burton Roberts, of the Bronx, and Mario Procaccino, a 1970 Democratic candidate for mayor, would deny bail to a suspect who an arresting policeman has "probable" cause to believe an addict. If a urine test immediately after arraignment revealed heroin use, the suspect would either be committed to the State Narcotic Control Commission or. if charged with a serious crime, tried within 90 days." If the accused wished to contest the finding of addiction, a judicial hearing would be held within four weeks to determine if there is probable cause to detain him without bail as an addict. The following objections to this plan were raised by a New York Supreme Court Justice and several lawyers:47

—A policeman would have the discretion to determine who might be an addict. Policemen are not qualified to do this. Moreover, they could interpret probable cause to harass suspected criminals who might or might not be either criminals or addicts.

—The plan would come into effect only after . . . the commission of a crime. To say nothing of the tens of thousands of addicts who are never caught.

—The facilities of the State Narcotic Addiction Control Commission have come under criticism recently as being more custodial than rehabilitative.

—If addicts were to be accorded all the guarantees of law, including the right to counsel at arraignment, the problem of getting lawyers in time would be substantial.

—Since the court system is woefully overloaded now, it is doubtful that it could really dispose of all addiction hearings within four weeks and trials within 90 days.

Undoubtedly this pattern will repeat itself in further calls for increasing police powers. Such powers have a way of affecting nondrug activities, particularly political activities. Once granted to the police, they are seldom relinquished. They intensify an atmosphere of police repression and remove more police activities from legal control. While such expanded powers have little impact on the extent or effects of drug use, they do reduce individual freedom and subvert the rule of law.

POLICE CORRUPTION

One serious consequence of victimless crimes is police corruption. One can only guess at the full extent to which the drug laws cause corruption. In 1969, seventy federal drug agents working in New York were dismissed for venality. This included extortion, theft from arrested drug offenders, and accepting bribes to arrest a pusher's competitors. In past months the Knapp Commission investigating police practices in New York City, has found widespread and pervasive corruption, much of which stems from drug enforcement. Single bribes as high as $10,000 to individual policemen have been reported. One member of a special unit in Harlem reported that he received $1,500 a month from drug pushers. Some officers sell the drugs found on arrested persons. Still others give informants orders for liquor and clothes in return for heroin and cocaine. The shocking extent of the corruption is summarized in the Commission's Interim report,48 in which it agreed that:

Narcotics police engage in various types and techniques of corruption ranging from extortion, bribery, contradictory court testimony designed to affect the release of a narcotics criminal, improper associations with persons engaged in drug traffic, and finally . . involvement by police officers in the actual sale of marijuana.

A number of other illegal practices occur in the course of enforcing the drug laws. A frequent complaint is that the police plant drugs on a suspect and then arrest him. This allegedly occurs when they suspect him of being a drug offender but find no drugs on him, or when they want him arrested for personal or political reasons. A New York lawyer who has defended many drug cases reported complaints by his clients that the police often charge them with having less heroin in their possession than they actually have, and then sell the excess or plant it on someone they want to arrest."

Chicago police officials testified during the Price-Daniel hearings :5°

Lt. Healy: . . . every time our men see these addicts on the street loitering around, they bring them in. That is how we get our information on the peddlers, from the addicts.

Mr. Speer: You mean when you see an addict on the street, whether or not you suspect that he may have narcotics on him or in his possession, you arrest him and bring him in for interrogation?

Lt. Healy: We do, unless he has a very good excuse for being at that certain point.

Mr. John Gutkneeht, former professor of law, the state's attorney, indicated that this police tactic was illegal and appeared mildly troubled by the violation of civil rights involved:

Mr. Gutknecht: In view of my background as a law professor, I am very jealous of civil rights, civil rights of individuals. One of the things I determined when I got in here was that I was going to be particularly careful about that. I must say this to you, that where narcotic addicts are concerned, I haven't any complaints, though I do know the police are a little prone to pick up these men. They have the protection of an ordinance, and I must say that the problem is so serious that even if we must admit some of their civil laws or civil rights are being violated, you have to go along with a certain amount of the fringe violation, if you see what I mean. . . . I think that you will also have to agree that

in my capacity—and we both have civil rights laws to enforce—can, with our multiple jobs, get too excited if a known addict has been unlawfully arrested and then discharged, knowing that because he is a known addict the police have to take little extra measures.

Jerry 'Rubin claims that the police broke into his apartment, threw drugs on the floor, and arrested him. Allen Ginsberg has alleged that several of his friends have been asked by the police to plant drugs on him so that he may be arrested.51 One of the most widely publicized cases of suspected planting, in combination with entrapment and undercover tactics, was the arrest of Professor Leslie Fiedler and his family. This well-known author, who is an English teacher at Buffalo, was accused of maintaining premises where others smoked marijuana. Fiedler, who claims never to have used marijuana, asserted that his arrest was contrived because he sponsored a student group working for the legalization of marijuana. It appears that a 16-year-old girl, a friend of Fiedler's children, was persuaded by the police to enter his house—already wired with eavesdropping equipment—plant marijuana, and inform the police.52

These practices are rife not only because of the policeman's low pay and long hours, so often quoted in extenuation; they are an inevitable consequence of the low visibility of drug-law enforcement. The drug police operate as an autonomous unit, and are seldom seen by the public when making an arrest. Frequently they cannot be made to account for their actions, even to police superiors.

The consequences of this endemic corruption should not be underestimated; it considerably lowers the respect in which the police, and by extension all legal authority, are held. To the extent that drug laws increase the likelihood of corruption, they impose a heavy cost on the whole criminal process and lower the cohesive power of the law.

ARBITRARY ENFORCEMENT

The drug laws are not administered impartially. People guilty of identical offenses are treated differently, according to their personal characteristics and the predilections of the officials, dealing with them. This arbitrary treatment is a major source of hostility toward the police and legal authority, especially among offenders who belong to groups that, they feel, are subjected to discrimination.

The rule of law also suffers. The police base their decisions on subjective rather than legal premises, and for them too this results in a loss of respect for the law.

Perhaps the most arbitrary decision concerns whom to arrest. Zealous in their pursuit of street addicts, the drug police are more reluctant to arrest and prosecute well-to-do addicts. Lindesmith53 points out:

Judges of lower courts have sometimes commented upon the singular absence in their courts of well-to-do addicts, such as those from the medical profession. Such persons are sometimes prosecuted . . . but often they are not. Sometimes they may be given a chance, or several chances, to cure themselves of their habits before they are prosecuted or the addict's doctor may be privately assured by an agent that no action will be taken against him if he provides the addict with drugs. This form of what, in effect, is legalized addiction in the upper social strata has probably increased in prevalence as the legally prescribed penalties have become increasingly severe.

Harry Anslinger, the chief United States advocate of a punitive drug policy, describes unblushingly how he got special treatment for two addicts, one a congressman, the other

. . . a Washington society woman. I had known her personally for some years. She was a beautiful and gracious lady. She had become so badly addicted to Demerol that no doctor would prescribe for her; her demand was too great.54

Millions of people use marijuana, and the police cannot possibly detect and apprehend every violator. Arrest patterns show that five groups bear the brunt of selective enforcement: long-haired hippie types, juveniles, political activists, blacks, and Chicanos. This may be a matter of simple persecution, but a more likely explanation is the natural suspicion the police have for these groups, and the frequency with which they come into contact. Young people, for example, often have brushes with the police over curfew violations, and members of minority groups automatically arouse police suspicions. Typically, arrests occur when a policeman stops a car for a minor traffic offense and legally or illegally searches the occupants. A car full of teen-agers, hippies, or blacks is much more likely to be stopped and searched than a car full of middle-class white people. Usually middle-class whites are arrested for marijuana offenses in freak circumstances—for example, when the babysitter finds marijuana while she's looking for cookies and calls the police.55 White college students, one of the largest group of marijuana users, generally enjoy the sanctuary of a college campus. It is well known that political activists are arrested for marijuana offenses; the cases of Jerry Rubin and Leslie Fiedler are widely publicized. But less well known is the arrest of Lee Otis Johnson,56 a black organizer working in the Houston ghetto, and John Sinclair of Detroit. The circumstances of their arrest and trial, and the 30- and 10-year prison sentences received, suggest political motives.

After arrest, there are the same discrepancies and discrimination. Decisions must be made on whether to grant bail, dismiss or prosecute the charge, which charges to press, whether or not to find the party guilty, and finally on sentence. Prosecutors, judges, and other officials differ greatly in their view of the seriousness of marijuana offenses, their interpretation of the law of search and seizure, and the weight they assign to personal factors. A study57 of marijuana arrests in Los Angeles found arbitrary and often erratic treatment for the following reasons:

Since there are many more cases involving marijuana than most other serious crimes, more prosecutors have to handle the cases and tend to apply varying standards in judging whether they are fit for prosecution. Moreover, the usual crime, possession of marijuana, leads to such tenuous concepts as "joint possession," "constructive possession," and "usable amount," which seem to give an especially wide play to prosecutorial standards. Furthermore, since such a large percentage of marijuana offenders have been in no previous trouble with the law, the varying weights this factor is given by different prosecutors introduce an extra element of uncertainty into the entire process. Finally, determinations as to all of the previous issues necessarily reflect what the individual prosecutor happens to think about the propriety of the marijuana laws. Since . . . there is considerable disparity in the views of prosecutors, especially concerning the marijuana possessor, it is hardly surprising that the prosecution of marijuana offenders will depend to a large extent on which prosecutor has received the case.

In Houston, juveniles (under 16) receive special post-arrest treatment. A first arrest, if the juvenile and his parents are cooperative, usually ends there, and no further action is taken. If the juvenile is not cooperative and repentant, the authorities may turn him over to the probation department: 58

If the probation department gets him it is their practice to turn him back to his parents; it is not a punishment-oriented group. The head of probation does not believe the drug abuse problem is as serious among juveniles as publicity would indicate, and he is fearful of branding young people with a record. He has been quoted as saying "punishing 15 and 16 year olds for selling marijuana doesn't work." Thus, there is a basic difference in philosophy between juvenile enforcement and juvenile probation. The juvenile court seems to agree with probation, for while it can send a juvenile to reform school until age 21, or waive jurisdiction to a criminal court, the stiffest penalty being handed out for marijuana involvement is probation; thus, again the juvenile winds up back home.

So the 16-year-old drug offender may have three chances before being deprived of his freedom, whereas the 17-year-old may go to jail for his first offense. Young drug users have learned to play the system and calculate their chances; their respect for the law is further compromised. The police, for their part, are angered by the different treatment accorded to cases that in their eyes are equally bad.

POLICE-CITIZEN HOSTILITY

The searches, seizures, and other techniques that have been adopted to enforce an almost unenforceable law bring the police into conflict with other segments of the criminal process—in particular, the court. Cases are dismissed or reversed on technicalities where the evidence clearly shows guilt. The police feel obliged to perjure themselves and to justify tactics that are operationally efficient, but technically illegal. Perhaps understandably, the police have often seen the courts and the rules they apply as handcuffing their productivity. In some localities courts have sensed the hostility and only reluctantly applied higher-court rulings to police practices. The police respond by pushing the rules to the extreme in doubtful cases, lobbying for more powers, or disregarding the courts whenever possible. Opposition between the courts and police is a serious matter. For better or worse, the judiciary has been handed the job of protecting constitutional rights.

The police also meet hostility from citizens that intensifies the doubts and uncertainties that they may harbor about their role. In many cases this hostility comes from white, middle-class, educated people, the very groups that police ordinarily respect and aspire to join. Unlike opiate offenders, the new breed of drug user feels justified in his drug use. Often he attacks the policeman for the arbitrariness he perceives in the law. The overt resistance of drug offenders can be troubling to the policeman. His sense of performing a public service in enforcing the law is undermined. If he too doubts the wisdom of the marijuana laws, he is obliged to enforce a law in which he does not believe. In either case he experiences conflict about his role and his usefulness. In the space of a few years his public image has deteriorated from cop to fuzz to pig.

COSTS TO SOCIETY

The costs of the drug laws are seen most clearly with regard to drug policy and the legal process. But there are other costs, reflected in the loss of governmental authority and integrity, increasing social instability, and an erosion of personal freedom.

DRUGS AS A SMOKESCREEN

In the past decade there have been major crises over civil rights, urban affairs, foreign policy, and ecology: crimes of violence have increased alarmingly, and there have been four political assassinations. Yet much public time and energy have been concentrated on the problem of drug use. This not only depletes our limited resources; it also diverts attention from other problems more crucial to the health of the nation and much more dangerous for politicians to handle. Joel Fort" calls this the "smokescreening function" of the drug issue, and observes that it is

. . . particularly utilized by politicians, editors, and publishers, and administrative bureaucrats, who seek, sometimes desperately, for subjects or issues which can easily be oversimplified and distorted, talked about widely, and not antagonize powerful financial blocks. Drugs are ideal for this. The more they are talked about and used to monopolize public attention, the less the candidate or office holder needs to talk about the real criminal or social, and health problems of the society. Reality in effect is obscured by a cloud of smoke or hot air. . . . Many other phenomena in American life are, of course, used in a similar manner as smokescreens, but probably none so consistently or so effectively as a few drugs such as marijuana, heroin, and LSD.

If only drug use were eliminated, goes the current refrain, our cities, would be livable, our youth tractable, and crime and poverty would disappear overnight. The logical next step is to pass a law raising penalties for drug use or adding a new drug to the proscribed list. This passes for responsible action, and it does provide temporary respite from having to confront the real difficulties. That this approach frustrates progress, on the drug or any other front, Cannot be doubted.

Most recently, drugs have been blamed for two major problems facing the nation. The first is the question of the relation of young people to parental and other authority; the second is the scandal of the My Lai massacre.

Leslie Fiedler6° has outlined one of the processes by which older generations avoid facing the relevant questions posed by the young:

But I found an adult community more terrified than myself, more terrified even than I had then guessed, of the gap between themselves and the young; and therefore pitifully eager to find some simple explanation of it all, something with which they could deal, if not by themselves, at least with the aid of the courts and cops. "Dope" was the simple explanation, the simple word they had found (meaning by dope the currently fashionable psychedelics, especially marijuana) ; and once that was licked, the gap would be closed, the misunderstandings solved, the mutual offense mitigated. For such a Utopian solution a few arrests on charges of possession and selling, a few not-quite-kosher searches and seizures would be a small enough price to pay.

Something similar occurred in the government's response to the massacre at My Lai. Americans have been shocked and outraged by this example of the brutalizing effects of the Vietnam War, but a few government officials have tried to reduce its impact by blaming the massacre on "dope." Senator Thomas Dodd, chairman of the Senate Subcommittee on Juvenile Delinquency—the committee where much drug legislation originates—told the Senate of information he had heard61

. . from an outstanding expert that the marijuana toxic psychosis . . . may have played a part in the events at My Lai on March 16, 1968. . . . I plan to conduct hearings to get at the facts, to let our people know if our soldiers in Vietnam have suddenly become brutal stormtroopers or whether, as I consider more likely, some of them have become the victims of a drug problem that has already torn asunder the fabric of domestic American society.

That Senator Dodd can make this unproven and unwarranted statement without fear of contradition from responsible quarters is a glaring example of smokescreening. The harsh realities of the Vietnam War are hidden in the miasma of drug use.

REDUCTION IN PERSONAL FREEDOM

Another cost of the drug laws is the reduction of personal freedom, and the increase in repression that accompanies the denial of individual choice over personal affairs. This effect is the most intangible one we have considered so far, and the one most likely to be disputed as a cost to society. Yet few reasonable men would disagree that in a democratic society an unreasonable or unnecessary reduction of liberty is detrimental. This position has been stated by Judge Charles Wyzanski: 62

Every attempt of the law to detect, prosecute, and punish wrong represents an expenditure not merely of time, effort, manpower, and money, but also a concession to the forces of coercion as distinguished from persuasion. . . . In the end liberty tends to be sacrificed for the supposedly greater advantage of health, safety, and morals. To some, including myself, the sacrifice is inconsistent with our ultimate political beliefs.

The social cost of an unwarranted official intrusion, of course, varies with the circumstances of the historical moment and the area of choice concerned. At present, for example, technological and social developments place a premium on personal liberty, particularly on privacy, that was unknown twenty years ago. Today to be alone, somewhere quiet and free from government intrusion, is increasingly in demand—and is increasingly difficult to attain. Electronic surveillance, political dossiers, and computer data banks all circumscribe our freedom to pursue individual goals unhampered by state interference.

Drug use, on the other hand, involves personal choice in the most bsic and private area of one's existence—the mind and its contents. A law decreeing that the harboring of certain thoughts is a crime would justifiably arouse indignation. Indeed, if it did not founder on constitutional shoals, it would surely herald a totalitarian police state. Few people realize that criminalizing drug use amounts to a form of thought control. Psychoactive drugs are chemical agents that produce psychic changes. Whether we call these changes "disorientation," "alteration," "modification," "liberation," or "disruption," drugs remain tools for affecting mental states, including the mood and content of consciousness. With these tools, an individual gains temporary control over his consciousness. He is able, within the limits of the drug, to temper, placate, or sharpen a mood, increase or decrease his fatigue, enhance the humdrum, or escape the ugly features of his existence. He can increase concentration and learning ability and open himself to the numinous, or enjoy normally inaccessible esthetic experiences. Undoubtedly, he also can increase his anxiety, develop imagined, unpleasant physiological sensations, and diminish his ability to respond to his external environment. Whether positively or negatively, the drug in each instance produces a change in his mind, within him.

When the state makes drug use criminal, freedom suffers in several ways. First, the control of one's mind, however one may use that choice, is ultimately the prerogative of the individual. In ceding this right to the government, we relinquish control over our most basic privacy. Such a precedent is dangerous. Second, denying an individual certain drug experiences may prevent his full realization of his own freedom. Some individuals cannot adapt effectively to their circumstances, while chronic or sporadic use of a drug may turn them into functioning individuals. Some drugs induce religious or transcendental experiences which lead to a fuller, happier life. However, these chemical substances can direct consciousness from ordinary life to illusory involvements.- Drugs can make the user feel that he cares for the welfare of others, while to the observer he appears remote and self-involved. Finally, outlawing drugs brings the apparatus of the criminal law directly into our lives. It may only be a police search, a raid, or questioning, and it may be legal. But the invasion of the law into one's,own home is felt deeply and is often resented.

The problem for us throughout this book has been to get the complex double entries in the varieties of ledgers into awareness. Physicians who casually prescribe tranquilizers, energizers, and sedatives remain largely unaware of the cost to their patients in secondary drug reactions and, greater by far, the idea that they can get relief from their ordinary troubles in living with these drugs. These doctors unwittingly promulgate a fundamental alteration in social and group responsiveness to distressed life situations—"solve it with a pill." The youthful user of illegal drugs too thinks that he gets something for nothing. He attends little to the personal and group costs that are exacted by his desire to get "high" and achieve sensory experiences under present social and legal conditions and even less to what those costs will be following any legal changes.

These pressing issues do not minimize the importance of the question we wish to pose here: what is happening now in a deteriorating situation? Are the limitations on liberty that present drug laws impose essential to an overriding social purpose? In our view, not only are they not essential, but present laws do not even deal with the harm that undoubtedly flows from drug use. In fact, we suggest that the law itself imposes social as well as legal costs much graver than those of the drug use it seeks to prevent.