The world we have created as a result of the level of thinking we have done thus far creates problems that cannot be solved at the same level at which we created them.
Albert Einstein

On Oct. 2, 1982, President Ronald Reagan, in response to Congressional pressure and widespread community support, delivered a radio address to the nation in which he declared War on Drugs:

The mood towards drugs is changing in this country and the momentum is with us. We are making no excuses for drugs — hard, soft, or otherwise. Drugs are bad and we are going after them.

Twelve days later, in a speech at the Department of Justice, he pledged an "unshakable commitment ... to do what is necessary to end the drug menace."

By the close of the decade, after numerous escalations and billions in expenditures, the drug problem was perceived by the public, according to a Gallup poll undertaken at the request of drug "czar" William Bennett, as having gotten so bad as to rank as the nation's number one problem and to justify curtailment of personal freedoms.1

In response to this atmosphere of crisis, President Bush, having previously pledged to stop cocaine, "the scourge of this Hemisphere," declared a further escalation in the War on Drugs. In a televised speech in September 1989, he announced the impending dispatch of military equipment and related assistance to Colombia to support a less rhetorical war against the Cocaine Cartels of Medellin and Cali. Later diplomatic initiatives offered (additional) funds for eradication of coca and related law enforcement operations in Colombia, Peru and Bolivia.

Congress, for its part, continued to ratchet the funding for the War on Drugs to ever higher levels, exceeding ten billion per year by fiscal 1990. In addition, it raised penalties for some drug offenses higher than those for violent crimes, including the imposition of the death penalty for selected drug "kingpins" under the Continuing Criminal Enterprise statute.

Despite these aggressive escalations in the War on Drugs at home and abroad, most things — drug supplies, urban terror and public corruption — have gotten steadily worse under the crackdown regime reigning since 1982.2 Yet never once has there been serious consideration within the Government of the soundness of the premises of the War on Drugs. The only questions debated have been how and how much to expand the existing war — e.g., whether to spend 10 billion or 12 and whether to fully deploy military forces in drug law enforcement.

The reason for the single-mindedness of the crackdown mentality is simple — "drugs are bad," in the words of the President, and "we are going after them." "Drugs are bad," of course is not an empirical proposition so much as a statement of a catechism. It serves the same pejorative purpose as "demon rum" and other shibboleths used to stigmatize liquor during the years leading up to passage of National Prohibition. Certainly, no meaningful statement about the effects of drugs (or alcohol) can be made without considering fundamental facts: the particular drug, the dosage, frequency of use (habitual, occasional), the purpose of use (therapeutic, recreational), and the physical, personal and social circumstances of the user.

Furthermore, the distinction drawn in the War between legal and illegal drugs is not well founded on health considerations. The literature of drug policy is rich with the evidence of the vast gulf between law and science in the classification of drugs as controlled substances. Thomas Szasz in Ceremonial Chemistry argues quite powerfully that the differential treatment of the legal and illegal drugs arises from tradition and culture — particularly the deep-rooted psycho-social need to identify some substances as taboo — rather than any inherent properties of the drugs themselves. This writer, in Breaking the Impasse in the War on Drugs, reviewed the evidence and concluded that the minimal legal controls placed on alcohol and tobacco, on the one hand, and the total prohibition of marijuana (to take the easiest case) on the other cannot be justified by any rational assessment of the known physical or psychological effects of these drugs on the consumer or society.3 Impasse argued that conceptual errors and cultural attitudes born of ignorance and irrational fears drive the drug control system today, as it has done from its inception with passage of the Harrison Narcotics Act of 1914.

As an abstract proposition, the irrationality of the drug control system is not especially remarkable; irrationality in the political arena is not after all unexpected. What is remarkable, and the focal point of this essay, is the extent to which the irrationality or non-rationality is shared by the judicial branch, the branch institutionally committed to knowledge and reason. Yet judges at the highest levels of the judicial system have generally followed the crowd in the domain of drugs, embracing uncritically what J.S. Mill called in On Liberty "the tyranny of majority opinion."

Thus, judges who have been called upon to answer drug law policy questions — arising as issues of statutory interpretation or constitutional challenge — have with few exceptions abandoned the method of fact-based, reasoned elaboration that is the essence of thinking like a lawyer or deciding like a judge.4 In place of careful analysis, they have attempted to justify drug law decisions with conceptual confusion, misinformation, and frustration — the latter often expressed in inflamed, moralizing rhetoric.

Indeed, there is often little difference between what is said by politicians and what is written by judges. Compare, for example, the Sept. 12, 1989 televised speech by President Bush to the nation's schoolchildren

Drugs have no conscience .... They just murder people. Young and old, good and bad, innocent and guilty — it doesn't matter.5

with that of the Chief Judge of the Southern District of Florida. In denying a convicted drug defendant bail pending appeal, the opinion, rather gratuitously, condemns drug dealers as "merchants of misery, destruction and death" whose greed has wrought "hideous evil" and "unimaginable sorrow" upon the nation. Their crimes, he concluded, are "unforgivable. " 6

Even where the rhetoric is not so inflammatory, the judges have nevertheless demonstrated that they share the fears and prejudices of the larger society. For example, the Supreme Court reinforced congressional attitudes by citing as a reason for rejecting a Double Jeopardy argument "the determination of Congress to turn the screw of the criminal machinery — detection, prosecution and punishment — tighter and tighter."7

In lining up behind the War on Drugs uncritically, judicial opinions generally display indifference to facts: they do not weigh conflicts in the evidence; do not acknowledge gaps in information; do not distinguish between fact and supposition; do not cite scientific studies on the properties of drugs or the economic effects of drug enforcement; do not differentiate among illegal drugs or make relevant comparisons to legal ones; do not acknowledge the secondary costs of drug enforcement arising from the black market "crime tariff," in Herbert Packer's phrase; 8 do not fairly balance or otherwise attend to competing values of individual liberty and privacy; and generally do not display the qualities of mind that constitute the critical judgment to be expected of judges.9 Instead, the operative premise is that "drugs are bad," so bad that almost any law or law enforcement measure is validated.

Drug Imagery in the Cases

There are two primary images in the cases on drugs. The original and probably still dominant theme is addiction as enslavement by drugs.10 The imagery springs from a dark palette of words and phrases in the cases: "misery, destruction, and death"; "degradation"; "debasement"; "shameful"; "depravity"; "evil." The second major theme is drug traffic as an "insidious crime" that reinforces the subjugation of the addict, causing crime and violence and inflicting "unimaginable sorrow" on society.

The earliest drug cases reached the Supreme Court not long after drug control, historically a matter left to the police power of the States, was federalized by the Harrison Narcotics Act of 1914. The Harrison Act made it
an offense to dispense heroin, cocaine and other "narcotics" except on forms issued by the Commissioner of Internal Revenue, but it did not apply to a physician distributing drugs to a patient in the course of his professional practice. In a series of cases interpreting the Act and challenging its constitutional validity, the Supreme Court demonstrated its own "drugs-are-bad" philosophy.

In United States v. Doremus,11 the Supreme Court reversed the dismissal of an indictment against a physician for violating Section 2 of the Harrison Act. The indictment alleged that Doremus unlawfully distributed to a man named Ameris five hundred one-sixth grain tablets of heroin, not using the prescribed forms and with knowledge that Ameris was addicted to the drug and was a "dope fiend." The Court condemned the doctor for "gratifying his (Ameris') appetite for the drug as a habitual user thereof 12 without even considering the arguments for maintaining an addict on drugs under medical supervision.

The Doremus indictment was brought as part of the Federal Government's sustained campaign to put an end to the practice of addiction maintenance, a goal that it achieved by the mid-1920s. In the attack on addiction maintenance, approximately 25,000 physicians were indicted, and over 3,000 actually went to prison.13 The hostile attitude toward drug dependence underlying that campaign comes into sharper relief in the next case to reach the Court.

In United States v. Behrman,14 a doctor had prescribed take-home drugs to an addict named King as treatment for withdrawal and provided no supervision for its use. The prescription was lawful if regarded as being in the course of his professional practice. The indictment did not allege a lack of good faith on the part of the doctor, nor did the statute prohibit prescribing maintenance doses to addicts. The district court dismissed the indictment.

The Supreme Court reversed, noting the legislative purpose "to confine the distribution of these drugs to the regular and lawful course of professional practice, and that not everything called a prescription is necessarily such."15 In other words, "a distribution intended to cater to the appetite or satisfy the craving" of a drug addict would not be authorized by the law. The Court concluded that such "so-called prescriptions could only result in the gratification of a diseased appetite for these pernicious drugs" or an unlawful diversion of them to others by the addict, restrained only by his "weakened and perverted will."16

The quantities of drugs involved here, as in Doremus, permitted an inference that the prescriptions were being re-sold on the black market. King had obtained 150 grains of heroin, 360 grains of morphine, and 210 grains of cocaine, which the Court pointed out was equivalent to three thousand ordinary doses. Thus, reinstatement of the indictment might have been defended in light of the abuse of the professional privilege. (That concession should be qualified by noting that Justices Holmes, McReynolds and Brandeis dissented.17) What is remarkable is the contempt shown by the Court for the addict, as though he were something less than human — possessed of a "diseased appetite" and a "perverted will." By comparison, it is difficult to imagine the Supreme Court of the United States using similar language of condemnation in determining whether other conduct constitutes murder, rape or other crime. The hot rhetoric is reserved for drug cases.

For the next several decades, the Supreme Court made no further pronouncements on drugs. A few cases did arise in the lower federal courts, and they developed the theme of degradation and debasement. For example, in Menna v. Menna,18 a wife alleged in a divorce suit grounds of "moral turpitude" on the part of her husband for being twice convicted of Harrison Narcotics Act violations. The court agreed that moral turpitude was established by the violations, even though the Harrison Act was a revenue statute administered by the Department of the Treasury.

The court stated that "it has become a matter of general knowledge that the habitual use of opium produces crime, violence, brutality and insanity."19 And the Court even went so far as to adduce "proof" that drugs are criminogenic, citing the Narcotic Bureau's Report for 1937 that 63 percent of the drug law violators arrested in that year had previous criminal records. Now, of course, this "proof" completely dispenses with the elementary question of cause and effect: were the drug users criminals because they were using drugs, or were they using drugs because they were criminals? Further, it answers the question of the defendant's personal culpability in the divorce suit by reference to the wrongdoing of others, a form of guilt by association.20

The moral turpitude of the defendant is simply assumed. It is, after all, a matter of "common knowledge" that opium is harmful. That the appellant committed "wicked and shameful acts" is not, in the court's view, truly open to question or in need of proof:

There can be ... no question of doubt in anyone's mind that the peddler of these dangerous drugs is a menace to society. Nor can there be the slightest doubt that the crime which it is the purpose of the statute to punish is one involving moral turpitude. An act which creates human misery, corruption, and moral ruin in the lives of individuals is necessarily so base and shameful as to leave the offender not wanting in the depravity which the words "moral turpitude" impiy.21

Now this is extravagant talk for a court that need only decide whether the defendant in a divorce action gives grounds for divorce by reason of two Harrison Act convictions. A venerable canon of judicial decision making calls for deciding on the easiest or narrowest ground available. The court could easily have rested its decision on the ground that any felony conviction demonstrates moral turpitude. More narrowly, the court could have focused on whether the Harrison Act is a strict liability offense or whether it requires proof of a mens rea. Or, the court could have focused on the facts underlying the convictions — did appellant's particular criminal acts cause actual "misery, corruption and moral ruin" to some identifiable victim(s)? Clearly, the court was having none of conventional legal analysis when presented with an opportunity for fulmination and condemnation of a "base and shameless" "menace to society." It's so obvious, you
see.22

In Burke v. Kansas State Osteopathic Association, Inc.,23 the court held that Kansas law did not confer upon osteopaths, as distinct from physicians, the right to administer narcotic drugs:

All legislation respecting the use or any limitation on the use of narcotics, is based upon the established fact that narcotic drugs are dangerous. Not that they are poisons within themselves, but are worse than poisons. Their excessive use destroys willpower, ambition, self-respect, and in the end, mentality. They make men and women moral perverts. Their influence upon society is most degrading ... .24

In reaching this decision, the court quoted from articles warning about the "drug curse," "the evils that come from drugs" and the like. The "established fact" that narcotic drugs are "worse than poisons" and makes people "moral perverts" must rank among the most outrageous of anti-drug assertions in the judicial literature. Even the statement that "excessive use" destroys "mentality" goes beyond the pale of anything resembling reasoned legal discourse. The language resembles a kind of hellfire-andbrimstone sermonette pitting the righteous (virtuous lawmakers) against the wicked.

As in the Menna case, the denunciations are gratuitous; the court had ample grounds on which to base its decision in the definition of osteopathy as being "fundamentally different" in its natural orientation from the practice of medicine involving the administration of drugs. Alternatively, the court might have confined its ground of decision to a simple determination of the legislative intent underlying the Kansas law. Ironically, this case, containing some of the hottest anti-drug rhetoric in the reporter system, was decided at a time, 1940, when the black market in illicit drugs was at its nadir.

Drug-related issues resurfaced in the Supreme Court in the 1960s. The first, Robinson v. California,25 presented the constitutional validity of a California statute that made it a criminal offense for a person to be addicted to the use of narcotics. The trial court had instructed the jury that the appellant could be convicted upon a finding of his "status" or "chronic condition" as "addicted to the use of narcotics."26 In the Supreme Court's analysis, the statute punished a person not for the use of narcotics, nor for selling, buying or possession of narcotics in California, but for being an addict — for the status or condition without proof of a common law actus reus. The Court struck the statute as cruel and unusual punishment under the Eighth Amendment.

But although the decision may appear on the surface to be enlightened, the majority [plurality] hastened to add, lest it be thought soft on drugs, "We are not unmindful that the vicious evils of the narcotics traffic have occasioned the grave concern of the government."27 The "evils" were apparently thought too obvious to specify. Justice Douglas' concurrence is another matter; he does not shy away from offering a bizarre and fantastic bill of particulars on the evils of heroin:

To be a confirmed drug addict is to be one of the walking dead.... The teeth have rotted out; the appetite is lost and the stomach and intestines don't function properly. The gall bladder becomes inflamed; eyes and skin turn a bilious yellow. In some cases membranes of the nose turn a flaming red; the partition separating the nostrils is eaten away — breathing is difficult. Oxygen in the blood decreases; bronchitis and tuberculosis develop. Good traits of character disappear and bad ones emerge. Sex organs become affected. Veins collapse and livid purplish scars remain.
Boils and abscesses plague the skin; gnawing pain racks the body. Nerves snap; vicious twitching develops. Imaginary and fantastic fears blight the mind and sometimes complete insanity results. Often times, too, death comes much too early in life.... Such is the plague of being one of the walking dead." N.Y.L.J., June 8, 1960, p. 4, col. 2. 28

Justice Douglas was known for his rebellious streak and his sense of humor, and the purple passage quoted above may have been intended as a parody. If taken literally, it is absurd, the print equivalent of the 1989 TV commercial showing a fried egg as "your brain on drugs." Even if there were a clinical case to exemplify the foregoing description, it would bear the same relationship to a typical heroin user as a sterno-drinking skid row bum bears to a typical social drinker. It would equate an elegant cocktail party with scenes from Ironweed.

It's true that Douglas was writing with benign intention in striking down Robinson's conviction. Still, his absurdly livid and inaccurate account of heroin addiction hardly qualifies as an exemplar of lawyer-like analysis. Where are his sources? In fact, the physiological effects of heroin are quite benign, and often associated with longevity in an addict who has access to sterile needles and uncontaminated heroin. Dr. Arnold Trebach informs us in The Heroin Solution that "putting aside the problem of addiction, the chemical heroin seems almost a neutral or benign substance. Taken in stable, moderate doses, it does not seem to cause organic injury, as does alcoholism over time." Furthermore, Norman Zinberg's research in Drug, Set and Setting demonstrates that a great many heroin users have developed stable, non-addictive patterns of occasional use ("chipping") over long periods of time. Many users, even addicts, are employed and have stable family relationships.

Perhaps the state of knowledge about heroin was not as advanced when Justice Douglas wrote as it is today. But from the nature of the nonmedical source he cited, the New York Law Journal, a legal newspaper, it seems likely that he searched for the most grotesque account he could find. He was able to succeed in this gross distortion of medical reality on the relatively safe assumption that no one would challenge it; everyone "knew" that heroin was bad, dangerous, and destructive. After all, it was an "established fact" that narcotics are "worse than poisons." Given that social reality, there was no need for Justice Douglas, assuming that he knew better, to quote from the extensive literature of heroin addiction and treatment in the United States and Britain.29

The extremism of the "walking dead" image, like the "worse-than-poisons" rhetoric is brought into sharper relief by comparison with the rarely encountered analytical and temperate approach of the court in United States v. Moore.30 There the court rejected the defendant's argument for drug addiction as a defense to drug possession charges. The court observed that before becoming addicted, a person's heroin use is a "freely willed illegal act."3' After becoming addicted, an addict cannot demand exculpation on the ground that he cannot stop his drug taking because he "retains some ability to extricate himself from his addiction by ceasing to take drugs" depending upon his "strength of character."32

The metaphysics of free will to one side, the court's insistence on the legal responsibility of the addict is perfectly consistent with the premise of rehabilitation: the addict must take responsibility for becoming and staying drug free. That it has a basis in reality is demonstrated by the fact that there are millions of former addicts — not only of heroin but of the even more addictive drug nicotine — who have mustered up the necessary self control. This is a far distance from being one of the "walking dead" or a "moral pervert."

The concurring opinion by Judge Leventhal is one of the best informed and most intelligent opinions on drug policy ever published by a judge. The court apparently had the benefit of good Brandeis briefs, and Judge Leventhal
turned the information to good advantage, speaking in a nuanced way of the respective roles of law enforcement and medicine in responding to drug addiction.

In dissent, Judge Skelly Wright tilted toward the drug-taker-as-victim approach of Justice Douglas: "The confirmed addict is in fact a worried, troubled, harried individual. Misery, alienation and despair, rather than pleasure and ecstasy, are the key features of his existence." 33 Nevertheless, his opinion is marked by compassion rather than condemnation:

... the misery of the addict is not his alone, for as members of a common society we all share in the responsibility for the conditions which have helped to make him what he is. Indeed, no matter how low he sinks, he cannot lose his right to justice; and the lower he sinks, the greater is his claim to our concern.34

Judge Wright proceeded to argue that drug addiction should be held to negate criminal responsibility because, by definition under 21 USC 802(1), the addict is a person who has lost the power of self control over his use of narcotic drugs. He is therefore not a blameworthy actor and should not be convicted and punished.

 There are yet other opinions in this unique case. None of them necessarily captures the elusive truth(s) about drugs and drug addiction. But all of the opinions command respect as judicious and judicial. The several opinions canvass and consult the Prettyman Commission, the National Commission on Marihuana and Drug Abuse, and many other authorities on drug issues. This intelligence at work is a far cry from the rantings of the diseased appetites/worse than poisons/moral perverts school of "thought" that dominates judicial discussions of drug issues in the cases.

Turner v. United States,35 introduces a new, more modern theme into the Supreme Court's oeuvre on drugs — the evils of drug trafficking confused with and misstated as the evils of drugs. In Turner the police stopped a car in which the defendant was riding. The defendant threw a package out of the car window containing a 15 gram mixture of cocaine and sugar. Found in the car were 275 glassine bags of a heroin mixture. Two of the counts charged the defendant with receiving and transporting illegally imported heroin and cocaine. The Supreme Court reviewed the case with respect to the validity of the statutory presumption that the drugs in question were illegally imported, as charged in two counts of the indictment. The Court upheld the presumption as to the heroin but struck it down as to the cocaine since Turner might have stolen the cocaine from a domestic source, some cocaine being legally imported for surgical uses.

Justice Black, joined by Justice Douglas, dissented vigorously from the portion of the opinion upholding Turner's convictions on the other counts. The strongly worded dissent attacked the majority for trashing civil liberties, listing eight separate respects in which the decision operates "to undercut and destroy" the constitutional rights of the accused. 36 But while railing against the injustice of the majority in affirming Turner's convictions, the dissenters commit a major irony — they provide a rationale for the very crackdown they denounce: Commercial traffic in deadly mind-souland body-destroying drugs is beyond a doubt one of the greatest evils of our time. It cripples intellects, dwarfs bodies, paralyzes the progress of a substantial segment of our society, and frequently makes hopeless and sometimes violent and murderous criminals of persons of all ages who become its victims. Such consequences call for the most vigorous laws to suppress the traffic as well as the most powerful efforts to put these vigorous laws into effect. Unfortunately, the grave evils such as the narcotics traffic can too easily cause threats to our basic liberties by making attractive the adoption of constitutionally forbidden short-cuts that might suppress and blot out more quickly the unpopular and dangerous conduct.37

Precisely. But isn't the practical course of action to respond to "grave evils" — what one year later became President Nixon's "all-out war" against "Public Enemy Number One" by any means. What are mere abstractions like constitutional rights in the face of such an emergency? Doesn't expedience demand that drug criminals be put in prison for their admitted offenses without pausing to parse the niceties of statutory interpretation or search and seizure rules? Thus, in the free speech cases following World War I and the Japanese Exclusion cases following World War II, the Supreme Court explicitly accepted the premise that civil liberties could be curtailed by Congress in time of War. Today, the analogy of the War on Drugs invites all three branches of Government to carve out, little by little, a "drug exception to the Constitution'?38

For this reason, it ill behooves anyone, especially a Justice of the Supreme Court of the United States, who is concerned with the preservation of constitutional principle to commit judicial acts of hysterical overstatement in reciting the "facts" of drug use and abuse. Justice Black's active verbs — "cripples," "dwarfs," "paralyzes," "makes" — smack of factuality: those are the actual and customary effects of the drugs, his presentation seems to say. But he does not trouble to cite any authority for those claims. Rather, he relies on what everyone "knows" about drugs: drugs are bad.

But, do drugs [which ones?] really "cripple" intellects and "dwarf" bodies and turn them into "violent and murderous criminals"? Do "they" — and the use of the anthropomorphic "they" is typical of judicial confusion, if not obfuscation, about drugs — do this to everyone involved? If not, why not? Is it because of the "character" of the drug user or his social station? And what are the risks of taking drugs — the incidence and prevalence of such harms? And are the harms a result of the psychopharmacological effects of the drugs themselves or of the "violent and murderous" trade that has developed in response to market forces in order to reap the risk premium offered by black market sales? These questions are never even considered by the "enlightened" dissenters. Wouldn't they be relevant? They are no less germane to a decision of the validity of the statutory presumptions than the recitation about the drug traffic being "one of the greatest evils of our time."

The same confusion of drug and drug traffic appeared again in United States v. Mendenhall,39 one of a series of cases to reach the Court arising from the use of the airport courier profile.40 Mendenhall was stopped and questioned and told that she had a right to refuse to be searched. She consented. Two bags containing heroin were found on her person. The Court held that her consent precluded a Fourth Amendment violation.

Justice Powell's concurring opinion, joined by the Chief justice and Justice Blackmun, once again shows the power of the single, simple idea that "drugs are bad," as the President said. Only the rhetoric is comparatively subdued:

The public has a compelling interest in detecting those who would traffic in deadly drugs for personal profit. Few problems affecting the health and welfare of our population, particularly our young, cause greater concern than the escalating use of controlled substances. Much of the drug traffic is highly organized by sophisticated criminal syndicates. The profits are enormous... .41

Like Justice Black in the Turner case, Justice Powell assumes the worst about the psychopharmacology of drugs, without troubling to check against the authorities. He repeats the use of the word "deadly," for example. But this is flat wrong if the word "drugs" is taken to include marijuana, which at the time of the decision in that case was number one in sales volume and by far number one in number of users — then in the range of 24 million smokers.42 The simple truth is that there is no known lethal dose for marijuana, while it has many therapeutic applications, e.g., the relief of intra-ocular pressure in glaucoma sufferers and the relief of the nausea often suffered by chemotherapy patients. Opium likewise has a long history of beneficent uses.

If, however, we assume that Justice Powell means to refer only to heroin, the drug involved in the case, then the word "deadly" is irresponsibly misleading even though heroin has a lethal potential. A deadly weapon, for example, is one designed to inflict death or great bodily harm, such as a gun or a knife. By contrast, heroin is a therapeutic agent designed for the relief of pain. Although overdose death can occur, that is not its intended function. Moreover, the risk attending the use of heroin, medically supervised, is very small. Without medical supervision, the risk rises with contamination and ignorance (of important purity and dose control, for example). Even so, the annual death toll from heroin overdose is very low in relation to the millions of doses consumed: something over 1,000 deaths per year in the DAWN reporting system,43 out of an estimated heroin using population of 1-2 million dosing itself with varying frequencies.44 These facts were readily available to Justice Powell if he or his law clerks had troubled to do the research. So "deadly" is more of an epithet or an expression of prejudice than a statement of fact.

Perhaps even more fundamentally wrong is the confusion by the usually erudite Justice Powell of two entirely distinct issues: the harms that may arise from "the escalating use of controlled substances" and the harms that may arise from the traffic that is "highly organized by sophisticated criminal syndicates" reaping enormous profits. The one is a problem of drugs. The other is a problem of drug money. It is folly to conflate the two. Nevertheless, many courts have done as Justice Powell has done, falsely attributing the demonstrable evils of often violent black marketeering to the drugs themselves.

An outstanding example is Carmona v. Ward,45 where the court considered the argument that mandatory life sentences meted out under New York's "Rockefeller" drug laws constituted cruel and unusual punishment in violation of the Eighth Amendment. Petitioners had won in the district court on habeas corpus review. The court of appeals reversed. It applied a tripartite proportionality test: the gravity of the offense, a comparison of the punishments for other crimes in New York, and a comparison of the challenged penalty to those for the same offense in other jurisdictions.

In weighing the gravity of the offense, the court rejected the argument that petitioners' drug sales should be viewed on their own bottom, as isolated, relatively minor events. Instead the court assessed them as "symptoms of the widespread and pernicious phenomenon of drug distribution."46 The court then proceeded to elaborate on the social harms arising from drug trafficking:

1. Narcotic addicts turn to crime — prostitution, drug sales and property crimes to feed their habits;

2. Drug addiction degrades and impoverishes those whom it enslaves.

3. Addicts often commit acts of violence against police officers and other addicts because of the high stakes.

4. The profits are so lucrative that police become corrupted.

The court's conclusion:

Measured thus by the harm it inflicts upon the addict, and through him, upon society as a whole, drug dealing in its present epidemic proportions is a grave offense of high rank.47

Now, this line of argument is obviously far more sophisticated than the rhetoric of "moral perverts" and "merchants of misery, destruction and death." But it is still more a confirmation of orthodoxy then a serious job of analysis. For even if the social harms listed by the court are accepted as true, the argument evades the question of the gravity of the offense. Consider, for example, whether it would be necessary to consider the gravity of murder upon society as a whole. Doesn't the value of human life stand on its own bottom, without resort to the socioeconomic forces surrounding it? Would the court of appeals find it necessary or appropriate to speak of hit men or assassins — of Murder, Inc., for example — to justify the conclusion that murder is the gravest of crimes because of the sanctity of human life? And, would murder become more serious a crime — would the value of human life increase — if there were more of them? If not, why does the court assess the seriousness of the crime of drug selling by reference to "its present epidemic proportions"?

Something is fundamentally wrong with an analysis of the severity of an offense that depends upon tying it to other offenses in some attenuated and dimly documented chain of correlation/causation.

There is rich irony here, moreover: the court's litany of social harms arising from drug trafficking unwittingly makes the case for deregulation of drug markets. The four points — apart from the moral degradation argument — contradicted by the "strength of character" premise of the Moore case — would not exist but for the black market set up by the legal prohibitions on drug transactions. Indeed, the precise claims made by the court to justify the severity of punishment would have applied to the sale of alcohol during National Prohibition, which greatly enriched bootleggers and empowered Organized Crime. The claims would also apply if the sale of cigarettes — a drug as addictive as cocaine or heroin, according to former Surgeon General C. Everett Koop — were to be outlawed, throwing some 52 million nicotine addicts into craving and withdrawal symptoms. 48 Is it conceivable that a court would then conclude that the illegal sale of a familiar and once socially acceptable drug constitutes "a grave offense of high rank"?

Is this line of economic and historical analysis too much to expect of a court engaged in a serious job of constitutional analysis? The tradition of the Brandeis Brief argues the contrary. Moreover, the relevant information was easily accessible by 1978. The information and the analysis had been made by the National Commission on Marihuana and Drug Abuse in its 1972-73 reports, by the Consumers Union, and even by the mass media. For example, the prominent University of Chicago economist Milton Friedman had written a column in Newsweek on the drugs/crime connection years before Carmona reached the court of appeals:

Prohibition is an attempted cure that makes matters worse — for the addict and the rest of us. ... [T]he individual addict would clearly be far better off if drugs were legal. Addicts are driven to associate with criminals to get the drugs, become criminals themselves to finance the habit, and risk constant danger of death and disease. Consider next the rest of us. The harm to us from the addiction of others arises almost wholly from the fact that drugs are illegal. It is estimated that addicts commit one third to one half of all street crime in the U.S. Legalize drugs, and street crime would drop dramatically.49

That was in 1972, in response to President Nixon's declaration of war on drugs. Some years later, Professor Friedman won the Nobel Prize. He did not change his views on drug policy. In a 1989 letter to Mr. Bennett, he wrote that "[d]ecriminalizing drugs is even more urgent now than in 1972 ... ."50 "Our experience with the prohibition of drugs is a replay of our experience with the prohibition of alcoholic beverages."51

One might question whether a court could appropriately consider the severity of the offense on the assumption that the New York law was stupid or counter-productive. But irrationality, the core concept of a substantive due process attack, is implicit in the Eighth Amendment proportionality test applied by Carmona. And Judge Oakes, in dissent, did call the wisdom of the law into question by citing a report concluding that "the operation of the 1973 New York drug law has had no real deterrent effect on drug abuse or on resulting felonious property crimes." He made the further point that the Governor had appointed a revision committee. But even if the law had to be taken as a given, it was unfair to lay the effects of the massive black market in drugs at the petitioner's door on the grounds that he was a cog in a much larger machine:

"New York's drug problem is a socioeconomic phenomenon or set of phenomena attributable to a great many factors with which the appellees have had nothing whatsoever to do." That position was also taken by the dissenters when the case reached the Supreme Court.

Justice Marshall, joined by Justice Powell (inconsistently, it would appear, from his subsequent concurrence in Mendenhall) dissented from the denial of certiorari on the ground that the mandatory penalties of the Rockefeller law were disproportionately severe:

To rationalize petitioner's sentences by invoking all evils attendant on or attributable to widespread drug trafficking is simply not compatible with a fundamental premise of the criminal justice system, that individuals are accountable only for their own criminal acts.52

To justify a stringent penalty for an act on the assumption that the act may engender other crimes makes little sense when those other crimes carry less severe sanctions than the act itself. [citation omitted] In sum, by focusing on the corrosive social impact of drug trafficking in general, rather than on petitioners actual-and clearly marginal-involvement in that enterprise, the Court of Appeals substantially overstated the gravity of the instant charge.53

That same error was committed by the Fifth Circuit in Terrebone v. Blackburn,54 where the defendant was arrested and convicted of distributing 22 packets of heroin to undercover narcotics agents. He received a mandatory life sentence under Louisiana Law. Terrebone sought a writ of habeas corpus on the Eight Amendment grounds raised in Carmona. Following the same analysis as the Carmona court, the Court rejected the challenge. Note also the metaphors and other indicia of anti-drug prejudice:

It is quite true that the trade in drugs is an ugly enterprise which preys upon both the physical and psychological weaknesses of man, and that this enormous danger to society may justify severe sanctions in many or most distribution cases. It is a matter of common knowledge and it is a fact, that social conditions in this state are adversely affected by the pervading traffic in and use of drugs. This condition is a serious menace to good social order. .. .. It is no defense to this prosecution that distribution of drugs is not a violent crime and consequently punishment for this offense should not be on a par with 2nd degree murder and aggravated kidnapping. Assuming the punishments are equal, traffic in narcotics is an insidious crime which, although not necessarily violent, is surely as grave. Indeed, the effect upon society of drug traffic is pernicious and far reaching. For each transaction in drugs breeds another and in the case of heroin the degeneracy of the victim is virtually irreversible. Compared to the effect of drug traffic in society isolated violent crimes may well be considered the lesser of the two evils.55

From this uninformed and distorted perspective, it is a short step, as drug enforcement continues to call forth the social pathologies of the black market, to the frustration, outrage and "call to arms" expressed in United States v. Miranda. 56 The defendant was convicted of importing 23 tons of marijuana and conspiracy to import and sought release on bond pending appeal. The court analyzed nine criteria specified by the statute then governing bail pending appeal, determined that defendant was a danger to the community, and denied bond pending appeal. Having decided the dispositive questions adversely to the defendant, the Court did not rest but added an extended obiter dictum:

Drug trafficking represents a serious threat to the general welfare of this community. Drug importation and its eventual sale is directly involved in the furtherance of drug dependence and is conducive to the proliferation of crimes related thereto. National statistics on armed robbery, assault and murder have increased tremendously as narcotics addicts have sought ways to obtain funds to feed their habits.

The community must be protected from violations of the law which prey on the weak of mankind. A wholesale drug peddler, such as the defendant exploits this weakness and, in doing so, certainly poses a danger to the welfare of the community. If narcotics traffic is a social and health hazard then every narcotics dealer is a danger to society. The call to arms simply stated, it is time for the merchants of misery, destruction and death to be put out of business. The hideous evil wrought by these criminals through their unlawful importation and distribution of narcotics and controlled substances is unforgivable.

Engulfed by their greed, these individuals have shown no concern for the thousands of lives that they have ruined and the unimaginable sorrow that they have heaped upon the people of this community, this state and this nation.57

That was in 1977. In the years following Miranda's call to arms, the U.S. has escalated the War on Drugs to unprecedented levels. "Turning the screw" of the criminal justice system in drug enforcement now includes, inter alia, pretrial detention, mandatory and severe sentences, expanded search and seizure powers — helicopter overflights, sniffing of luggage by drug detector dogs, electronic surveillance of vehicles by concealed radio-tracking devices, warrantless searches of motor-home residences, public school students' purses, ships in the inland waterways connected to the sea, etc. — mandatory urinalysis, zero tolerance forfeitures of cars, planes and boats, the assessment of "civil fines" up to $10,000 and termination of governmental benefits (student loans and mortgage guarantees, for example) for simple possession of personal use amounts, and so on ad infinitum.

The zeal born of frustration and outrage sometimes borders on vindictiveness, as reflected in anti-drug proposals that have (thus far) failed to become law: the Arctic Gulag proposal for convicted drug offenders,58 the House Republican Task Force bill calling for confiscation of 25 percent of the adjusted gross income and net assets of anyone caught possessing illegal substances,59 the proposal to shoot down civilian aircraft entering the United States without having filed a flight plan, the boot camp for drug users proposed by Secretary Bennett, and others of this genre.

The foregoing examples demonstrate the strong emotional, non rational attitudes surrounding the drug issue. So strong are these attitudes that judges have, for the most part, accepted them uncritically. What is worse, the cycle of crackdown, escalation, failure and repression perpetuates itself. Judges and other policy makers do not even seem to be aware that their decisions and actions arise out of prejudices rather than factual inquiry and reasoned study. After all, everyone knows that drugs are bad and that something must be done.

The attainment of fresh perspectives on drugs may be impossible for society as a whole. Seven decades of relentless anti-drug propaganda have deprived the public of its power of critical thinking on this subject. The Government, more than ever, is committed to a war on drugs almost as a categorical imperative, irrespective of whether it produces positive results. Doubting politicians are for the most part cowed into silent submission. And ironically, like the stopped clock that comes right twice a day, the emergence of crack cocaine since the summer of 1986 has finally conferred some plausibility upon the outrageous and baseless claims about drugs that drug enforcement bureaucrats and allied politicians have always made. The very worst, most sensational scenarios — but not typical, it must be emphasized — seem to resemble the worse than poisons/moral perverts/walking dead metaphors so promiscuously used in the past before crack was even invented.

For these reasons, the public is probably lost to reason regarding the full range of popular black market drugs. Judges, one hopes, can be made to look at the evidence and listen to reason. But in order to break the present impasse, it is necessary to develop some critical distance on what is regarded as true, to develop some epistemological sophistication. History offers some impressive lessons about the hubris of ideology or other a priori knowledge.

Let us take two Supreme Court cases as expressions of the common knowledge of the era on matters of race relations and the relationship between the sexes, respectively. In the case of Dred Scott v. Sanford,60 Scott had been taken as a slave by his owner into Illinois, a free state. Upon returning to Missouri, Scott sued his owner in federal court to gain his freedom, claiming that his physical presence in Illinois had emancipated him. Rather than simply relying on a narrow ground of decision, such as the slave owner's property rights under Missouri law, Chief Justice Roger Taney wrote a wide-ranging opinion denying Scott the right to bring suit because he lacked citizenship. Slaves were not intended by the Constitution to become citizens, wrote Taney, because they were "a subordinate and inferior class of beings, who had been subjugated by the dominant race." Moreover, as inferior beings, they comprised a class of untouchables in the social order, "altogether unfit to associate with the white race, either in social or political relations; and so far inferior, they had no rights which the white man was bound to respect." Slavery, in short, found justification in the "fact" of white racial superiority, a "fact" that required no proof because it was part of the volkgeist.

A similarly narrow world view disguised as universal truth determined the outcome of a Supreme Court opinion considering the rights of women. In Bradwell v. State 61 the Supreme Court of Illinois refused to grant Myra Bradwell a license to practice law on the sole ground of her sex. The fact that she possessed the requisite qualifications to practice law did not matter because "God designed the sexes to occupy different spheres of action" and it was "an almost axiomatic truth" that "it belonged to men to make, apply and execute the laws." A concurring opinion went even further in rejecting any role for women in professional or business life:

The civil law, as well as nature's law, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The interests and views which belong, or should belong, to the family institution [are] repugnant to the idea of a woman adopting a distinct and independent career from that of her husband.

Given the high moral ground of late twentieth-century ideas about sexual and racial equality, we may sigh gently about the Court's wrongheadedness and take comfort in the comparative enlightenment of contemporary thinking. A decade — or will it be a century? — from now, we will almost certainly do the same about our drug laws.

Steven Wisotsky is a professor at Nova University Law Center, 3100 S.W. Ninth Ave., Fort Lauderdale, Fla. 33315. (305) 760-5700. He is one of the co-chairs of the 1990 International Conference on Drug Policy Reform.

Footnotes

* This essay is part of a longer work in progress. The copyright remains with the author.

1 A New York Times/CBS poll based on telephone interviews conducted Sept. 6-8, 1989 produced similar results. 64 percent cited drugs as the most important problem facing the nation — triple the percentage of July 1989. 61 percent favored drug testing of workers generally.

2 Congressional Research Service, Library of Congress, "Drug Abuse Prevention and Control: Budget Authority for Federal Programs, FY 1986-FY 1988" [IP334D] (Feb. 27, 1987) : Despite a doubling of Federal expenditures on interdiction over the past five years, the quantity of drugs smuggled into the United States is greater than ever... There is no clear correlation between the level of expenditures or effort devoted to interdiction and the long-term availability of illegally imported drugs in the domestic market. See also Wisotsky, "Exposing the War on Cocaine," 1983 U. Wisc. L. Rev. 1305.

3 The annual death toll from the long-term effects of cigarette smoking is approximately 360,000, according to the Report of the U.S. Surgeon General, most of them from lung cancer, emphysema, and other respiratory diseases. Alcohol causes, in a physiological sense, about 100,000 deaths per year, mostly from cirrhosis of the liver. Alcohol more loosely "causes" an additional 100,000 deaths from traumatic injury in the form of auto crashes, drowning, industrial, and the like. By contrast, marijuana presents lower risks of harm to respiratory health than tobacco; and the risk of traumatic injury from impaired motor skills in driving, for example is probably less than for alcohol. DEA Chief Administrative Law Judge Francis Young ruled in 1988 that marijuana is "far safer than many foods we commonly consume" and that its medical benefits are "clear beyond and question." The concentration of public attention on the War on Drugs tends to obscure the developments of recent history: It was little more than a decade ago that President Carter declared himself in favor of decriminalization of marijuana. He was receded or joined in that recommendation by the American Medical Association, the American Bar Association, the Consumers' Union, the National Education Association, the National Council of Churches, the American Public Health Association, and others. Even the National Commission on Marijuana and Drug Abuse recommended in 1972 that the private possession of marijuana be decriminalized.

4 See K. Llewelyn, The Common Law Tradition: Deciding Appeals (1961). See also note 14, infra.

5 E. Warren, "Bush gives Anti-drug talk to kids," Miami Herald, Sept. 13, 1989, 1A.

6 United States v. Miranda, 442 F. Supp. 786, 795 (S.D. Fl. 1977).

7 United States v. Albernaz, 450 U.S. 333, 343 (1981).

8 H. Packer, The Limits of the Criminal Sanction 177 (1969).

9 See R. Aldisert, Logic for Lawyers (1989); W. Read, Legal Thinking (1986). See also Rombauer, Legal Problem Solving (1973).

10 Governmental concern with addiction had a legitimate historical basis. The Harrison Act was motivated in substantial part by the large addict population that developed around the easy access in the U.S. to potent patent medicines. D. Musto, The American Disease: Origins of Narcotics Control (1973); Phillips and Wynne, Cocaine: The Mystique and the Reality (1980). In both the U.S. and Europe widespread "fear and loathing" of cocaine developed not long after Freud's popularization of the drug in the 1880s R. Byck, The Cocaine Papers of Sigmund Freud (1974).

11 249 U.S. 86 (1919).

12 Id. at 90.

13 R. King, "Punishing the Sick and Jailing the Healers," Yale L.J.

14 258 U.S. 280 (1921).

15 Id. at 287.

16 Id. at 289. The District Court had written in a similar vein: "The so-Called 'patient' in this case was suffering from no disease except drug addiction... it is a well known fact, of which this court has taken notice, that drug addicts as a class are persons weakened materially in their sense of responsibility and in their power of will ..." The generalization is certainly arguable; just as certainly it is not a fact so well known as to dispense with the need for proof and justify the taking of judicial notice.

17 A few years later in Linder v. United States, 268 U.S. 5 (1925), a doctor was indicted for prescribing one tablet of morphine and three tablets of cocaine to a women he knew to be addicted to these drugs in order to satisfy her craving. The Supreme Court viewed the case as a conviction for a prescription addiction and keeping [the patient] comfortable." It was not willing to find that Dr. Linder had "necessarily transcended" the limits of professional practice.

18 102 F. 2nd 617 (D.C. Cir. 1939).

19 Id. at 618.

20 The same thing is done in later cases such as Carmona v. Ward, infra note 49, and Terrebone v. Blackburn, infra note 58.

21 Id.

22 A later case similarly citing "the common knowledge of society" that addicts are indecent people is United States v. Cisneros, 191 F. Supp. 924 (D Cal. 1961): The violation of the narcotic drug laws ... is a violation of rule which is accepted by all decent people as involving public policy and morals in the United States. The evils which the illicit narcotic traffic brings in its wake are all well known and they are rightfully the subject of public abhorrence.... In may opinion it is clearly demonstrated that either class of offense involves moral turpitude. It is common knowledge that narcotics addicts must, and will in order to obtain a supply of the drug to which they are addicted, lie cheat or steal. Constant deception and subterfuge are necessary, if an addict is to remain at liberty and to enjoy the dubious boon of his addiction. 23 111 F.2d 250 (10th Cir. 1940).

24 Id. at 256.

25 370 U.S. 660 (1962)

26 Id. at 662.

27 Id. at 256.

28 Id. at 672.

29 Departmental Committee on Morphine and Heroin Addiction, Report, 1926 (The Rolleston Report) and Interdepartmental Committee, Drug Addiction, 1961/1965 (The Brain Committee Reports).

30 486 F.2d 1139 (D.C. Cir. 1973).

31 Id. at 1145.

32 Id. at 1151.

33 Id. at 1234.

34 Id. at 1234.

35 396 U.S. 398 (1969).

36 Id. at 425.

37 Id. at 426.

38 See Wisotsky, "The Emerging 'Drug Exception' to the Bill of Rights," 38 Hastings L. J. 883 (1987).

39 446 U.S. 544 (1979).

40 See also Reid v. Georgia, 448 U.S. 438 (1980) and United States v. Sokolow, 109 S.Ct. 1581 (1989).

41 Id. at 561.

42 NIDA National Household Survey for 1979.

43 DAWN is the acronym for Drug Abuse Warning System, a compilation of information from medical examiners and hospital emergency rooms in most Standard Metropolitan Statistical Areas. The combined figure for morphine/heroin deaths for the first nine months of 1987 was 918, excluding New York City. National Narcotics Consumers Intelligence Committee, "The NNICC Report 1987" (April 1988).

44 NIDA National Household Survey for 1982.

45 576 F. 2d 405 (2nd Cir. 1978). Carmona was convicted of two counts of possession of cocaine with intent to distribute, an A-I felony with a mandatory minimum 15-year sentence. She plead to 2nd degree felony and was sentenced to six years to life. Defendant Fowler was charged with an A-III felony, a four years to life sentence, after selling 20 dollars worth of cocaine to an undercover agent.

46 Id. at 411.

47 Id. at 411.

48 Report of the Surgeon General, 1988.

49 Reprinted in "An Open Letter to Bill Bennett," Wall Street Journal, Sept. 7, 1989.

50 Id.

51 Id.

52 439 U.S. 1091, 1096.

53 Id. at 1097.

54 624 F.2d 1363 (5th Cir. 1980).

55 Id. at 1369

56 442 F. Supp. 786 (1977).

57 Id. at 792.

58 H.R. 7112, 97th Cong., 2d Seas., 128 Rec. 7088 (1982).

59 "The Drug Enforcement Report," June 23, 1988, p. 2.

60 19 How. 393, 15 L. Ed. 691 (1857).

61 16 Wall. 130, 21 L.Ed 442 (1872).