Testimony of Ira Glasser
Executive Director
American Civil Liberties Union

Criminal Justice, Drug Policy and Human Resources Subcommittee
of the
House Government Reform Committee

Hon. John L. Mica, Chair

June 16, 1999

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Thank you for inviting me to testify today. In the June 9 edition of the Congressional Quarterly Daily Monitor, the subject of today's hearing is listed as covering the issues of "drug legalization, criminalization and harm reduction." Since these terms are often differently defined, let me begin by offering my definition, so the Subcommittee can be clear about my testimony.

I. Definition of terms

A. Harm reduction. There are two kinds of harms associated with the use of drugs. One set of harms may be caused by the drugs themselves, and varies widely, depending on the particular drug, its potency, its purity, its dosage, and the circumstances and frequency of its use. Distinctions must be made between the harms caused by heavy, compulsive use (e.g., alcoholism) and occasional, controlled use (e.g., a glass of wine each night with dinner). Distinctions must also be made between medical use (e.g., heavy dosages of morphine prescribed by doctors over a two-week period in a hospital setting or methadone prescribed daily on an outpatient basis as maintenance) and uncontrolled use (e.g., by addicts on the street using unregulated heroin and unclean needles). And distinctions must be made as well between relatively benign drugs (e.g., marijuana) and drugs with more extreme short-term effects (e.g., LSD) or more severe long-term effects (e.g., nicotine when delivered by smoking tobacco).

The second kind of harm associated with the use of drugs is the harm caused not by the drugs themselves but by dysfunctional laws designed to control the availability of the drug. These harms include massive incarceration, much of it racially disparate, and the violation of a wide range of constitutional rights so severe that it has led one Supreme Court justice to speak of a "drug exception" to the Constitution. Dysfunctional laws have also led to reduced availability of treatment by those who desire it (e.g., methadone maintenance), as well as a number of harms created by uncontrolled and unregulated illegal markets (e.g., untaxed and exaggerated subsidies for organized criminals; street crime caused by the settling of commercial disputes with automatic weapons; unregulated dosages and impurities; unclean needles and the spread of disease, etc.)

All laws that address the issue of drugs ought to be evaluated by assessing whether or not they reduce or enhance such harms.

B. Criminalization. This term refers to the effort to control the harmful effects of drugs by making it a crime, often with heavy penalties attached, to possess, buy or sell drugs. The purpose of criminal prohibition is to sharply reduce availability of drugs by interdicting supplies and deterring commercial transactions. Any assessment of criminalization must measure the extent to which this purpose has been achieved, and the extent to which new harms have been created and sustained.

C. Legalization. This term refers to a wide variety of efforts to control the harmful effects of drugs by regulating, instead of criminally prohibiting, their sale and use. Depending on the drug, regulations may require a medical prescription (e.g., Prozac) or may limit the settings in which a prescription may be used (e.g., morphine). Other drugs may be regulated less restrictively (e.g., alcohol, tobacco). People who advocate this approach believe that the harmful effects of drugs can be better controlled by regulation; that different regulations would be appropriate for different drugs; and that Congress would be more productive if it embarked upon this path, and began the difficult process of developing a differential system for regulating the availability of drugs.

II. General principles

The American Civil Liberties Union believes, and has believed for decades, that in general the best way to control the harmful effects of drugs is with a detailed set of regulations. We believe that the use of criminal prohibitions is profoundly wrong in principle, generally ineffective in practice and has created problems that the drugs themselves were powerless to create.

Criminal prohibition is profoundly wrong in principle because the state has no business using its police powers to punish adult individuals for what they decide to do with their own minds and bodies. On the most basic level, the state has no legitimate power to send me to prison for eating too much red meat or fat-laden ice cream or for drinking a few beers or glasses of wine each day. This is true in principle even if an excess of red meat and ice cream demonstrably leads to premature heart attacks and strokes. The police power of the state is legitimately used to prevent one citizen from attacking another, and to punish him if he does; it is illegitimately used to prevent adults from managing their own bodies and minds, or to punish them when they do.

Nor does clearly excessive use warrant criminal punishment. Obesity and compulsive eating disorders, while clearly problematic and often dysfunctional, are not a justification to put people in jail, to search them for possession of forbidden foods or to seize their property when they are caught with such foods. Even more certainly, the self-abuse of compulsive overeating by some cannot possibly justify punishing others for eating the same foods, but in moderation and without apparent ill effects.

Similarly, excessive and compulsive consumption of alcohol or tobacco does not justify imprisonment, police searches or seizures of property. And certainly the behavior of alcoholics - serious abusers of alcohol -- cannot justify criminalizing moderate, recreational drinking by otherwise stable and law-abiding citizens.

No American would dispute these assertions, and, of course, we do not in fact do such things to people with serious eating disorders. We don't even do it with alcohol and tobacco, despite the well-documented ill effects of compulsive use of those drugs. Why we do it with other substances, like, for example, marijuana, and whether there is something about marijuana that justifiably causes us to depart so radically from fundamental principles, is the key question this nation needs to begin openly and fairly debating.

III. Rethinking criminalization.

Congress should not avoid this question by marginalizing it, or by pretending that those who advocate individual freedom, harm reduction and control through appropriate regulations rather than criminal prohibition occupy a narrow band of the political spectrum. In fact, those who oppose or who are deeply skeptical of criminal prohibition include such notable conservative thinkers as Milton Friedman and Wm. F. Buckley, Jr. as well as liberals like Mayor Kurt Schmoke of Baltimore, experienced police chiefs like Patrick Murphy, Joseph McNamara and Nick Pastore, and a number of state and federal judges.

Nor is the principle here articulated a recently-invented one. To the contrary, it is America's obsession with criminalization that is relatively recent, beginning in 1914. The tradition of personal freedom and individual sovereignty has far older and deeper roots in Western thought. As far back as 1859, for example, the political philosopher John Stuart Mill, in his famous essay On Liberty, offered the following advice to free societies and their governments:

The object of this Essay is to assert one very simple principle... to govern absolutely the dealings of society with the individual in the way of compulsion and control ... That principle is, that the sole end of which mankind are warranted ... in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do so or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise or even right.

There are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him... Mankind are greater gainers by suffering each other to live as seems good to themselves, than by compelling each to live as seems good to the rest. On Liberty, at lines 335-351, 471 (1859).

There is no better example of the folly of ignoring Mill's advice than the history of America's attempts over the past 85 years to control the harmful effects of drugs by making it a crime to possess, buy or sell them. This approach began in 1914, when Congress passed the Harrison Act, and was followed by hundreds of federal and state laws, all of them to one degree or another utilizing criminal penalties to punish possession, sale and purchase of a wide variety of substances including for a period of time alcohol.

The stated purposes of such laws were to make drugs less available; to interdict supplies and to deter commercial transactions. But the laws of prohibition accomplished none of these purposes. Alcohol prohibition was abandoned as a failure over sixty years ago. But criminal prohibition of other drugs continued. Between 1914 and 1970, 55 federal laws and hundreds of state laws were passed, all of them prohibitive, all of them containing criminal penalties. Almost from the beginning, the results were disappointing and counterproductive. As early as 1926, the Illinois Medical Journal, characterizing the 1914 Harrison Act as a "well-meaning blunder" concluded that:

... instead of stopping the traffic, those who deal in dope now make double their money from the poor upon whom they prey. 49 Illinois Medical Journal 447 (1926).

Then years later, in 1936, August Vollmer, a former police chief and leading expert on American policing, wrote:

Stringent laws, spectacular police drives, vigorous prosecution, and imprisonment of addicts and peddlers have proved not only useless and enormously expensive as means of correcting this evil, but they are also unjustifiably and unbelievably cruel in their application to the unfortunate drug victims ... Drug addiction, like prostitution and like liquor, is not a police problem; it never has been and never can be solved by policemen. It is first and last a medical problem ... The Police and Modern Society (1936). At p. 117-18.

And in 1958, a comprehensive study concluded:

For the past 40 years we have been trying the mainly punitive approach: we have increased penalties, we have hounded the drug addict, and we have brought out the idea that any person who takes drugs is a most dangerous person... Our whole dealing with the problem of drug addiction for the past 40 years has been a sorry mess. Problems of Addiction and Habituation 1958). At p. 171.

By the early seventies, it was clear that the situation described by Chief Vollmer and others was unchanged: prohibition had not worked. Drugs were plentifully available on the street and a lively if illegal and often violent market was flourishing. Addicts were not being helped. Interdiction was not working. And organized crime was being fabulously enriched by the artificially inflated prices of an illegal market.

Many observers at the time concluded as Vollmer had in 1936: criminal prohibition of drugs was a mistake for the same reasons that alcohol prohibition (enacted originally at about the same time) had been a mistake. It was time to rethink criminal prohibition and go in another direction. Other, non-coercive programs had begun to show effectiveness. Methadone maintenance on a voluntary, out-patient basis, had shown promise. A study of one program showed that "the overwhelming majority of patients ..., after years as criminals on heroin, lead a law-abiding life on methadone maintenance." And after 5 years, the failure rate remained low. Many people began to believe that addiction could be treated medically and voluntarily.

But in New York, Governor Nelson Rockefeller concluded otherwise. Despite nearly 60 years of demonstrable failure, he decided that the trouble with criminal prohibition was that as punitive as it had been, it hadn't been punitive enough. The failures of criminal prohibition, Rockefeller argued, could be reversed by even tougher laws and a more punitive use of the state's police power. Thus was born the infamous Rockefeller drug laws, now nearly universally considered a tragic mistake. Even Laurence Rockefeller, the late Governor's brother, has recently stated so publicly, and speculated that his brother, if he were still alive, would today be admitting that mistake. Perhaps.

What is clear is that between 1973, when the Rockefeller laws were passed, and today, the use of the criminal sanction has increased exponentially. On the federal level alone, expenditures have gone up from $1.65 billion in 1982 to $17 billion in 1998. And billions more have been spent by the states. Incarceration has gone up from a few hundred thousand to more than 1.7 million; 85 percent of the increase in incarceration between 1985 and 1995 was due to drug convictions, according to the Bureau of Justice Statistics, the bulk of them for nonviolent crimes. Driven by stunning and unjustifiable disparities in sentencing between crack cocaine and powder cocaine, as well as other racial disparities in how drug laws are enforced, disproportionate numbers of blacks and Latinos are filling our prisons. According to federal government statistics, only 13 percent of monthly drug users are black; but 37 percent are arrested for possession, 55 percent are convicted of possession and 74 percent are imprisoned for possession. One of every three African American men between the ages of 20-29 are now under the jurisdiction of the criminal justice system. 14 percent of African American men are permanently disenfranchised.

Three-quarters of the swollen federal drug policy budget remains devoted to law enforcement, much of it to interdiction, despite the fact that no serious student of interdiction thinks it has worked or that it can work. Federal criminalization has clogged the federal court system and, according to Chief Justice William Rehnquist, is having deleterious consequences for the administration of justice. About half of all drug arrests are for marijuana, over 80 percent of them for possession. Urine testing has become a routine predicate to holding a job in 81 percent of major U.S. firms, despite studies that show that such testing is an worthless to the employer as it is degrading and intrusive to the employee. Civil asset forfeiture of property -- what one historian has called a government license to steal -- has become widespread, at both federal and state levels, leading Judiciary Committee Chairman Henry Hyde to introduce a bill designed to reform this abuse of power. And drug interdiction has become a pretext for stopping cars whose drivers are black and Latino, leading to an epidemic of racial profiling and the harassment of innocent people that amounts to a shocking reprise of old-style Jim Crow justice.

Our 85-year experiment with criminal prohibition of drugs, and the escalation of that experiment since 1980, has not solved the problems it was meant to solve and it has created other serious problems resulting from the excessive and unprincipled use of the government's police power.

To summarize:

• Criminalization has not made drugs less available. For example, a federal study showed that in 1975, 87 percent of young people said marijuana was "very easy" or "fairly easy" to obtain. In 1998 - after millions of arrests and an exponential increase in prison sentences - the figure was 89.6 percent.

   

• Although criminalization has not made drugs less available, it has assured that they would be available only under the most dangerous and violent circumstances. And most of the violence is not due to the pharmacological influence of drugs but to the illegality of the market that is created by the law. Al Capone did not shoot people because he was drunk and drug dealers do not shoot people because they are high. They settle commercial disputes with violence in the streets because prohibition permits no other option.

   

• Criminalization does not deter commercial transactions; to the contrary, it enriches criminals and attracts an endless parade of new entrepreneurs due to the prospect of stunning profit margins.

   

• Criminalization does not help addicts. The huge amount of spending on interdiction and other law enforcement - despite August Vollmer's prophetic warning over 60 years ago - detracts from our ability to provide treatment on demand to all those who want it.

   

• Criminalization creates other problems not created by the drugs themselves:

   

  • It has eroded the Fourth Amendment creating in effect what Justice Thurgood Marshall once called "a drug exception" to the Constitution.
  • It has resulted in widespread urine testing, what Justice Antonin Scalia has called "an immolation of privacy and human dignity."

     

  • It has led to an unprecedented explosion of racially skewed incarceration. Despite the fact that most drug users are white, most of those arrested and imprisoned are people of color. Drug prohibition has become an engine for the restoration of Jim Crow justice.

     

  • It has led to the spread of AIDS, a genuine public health disaster, because of prohibition on the availability and distribution of clean needles.

     

  • It has violated sound medical practice by restricting the use of methadone as a prescriptive medicine and by interfering with the management of pain, wasting syndrome and glaucoma by barring the medical use of marijuana and by resisting the scientific research that would go beyond anecdotal evidence.

     

  • It has swept away the right not to have your property taken without due process of law, though the extensive use of civil asset forfeiture, a practice one leading historian has called a government "license to steal."

     

  • It has established a pretext for racial profiling on our highways, in our airports, at our customs checkpoints and on our streets that are based not on evidence but on skin color.

Above all, criminalization has intruded the state into that zone of personal sovereignty where the state should never be allowed to go, at least not in a society that calls itself free. By failing to distinguish between users and abusers, the government has demonized all drug use without differentiation, has systematically and hysterically resisted science and has turned millions of stable and productive citizens into criminals. The Hippocratic principle that governs medical practice is: "First, do no harm." Criminal prohibition has, since 1914, done immense harm, without achieving its stated goals.

The American Civil Liberties Union urges Congress to begin again, to initiate a serious and extensive study of drugs, their benefits and their harm, and the proper role of government in mediating such harms as may exist. We believe such an inquiry, fairly conducted, will lead to the conclusion that criminalization was a mistake, and that both freedom and safety, as well as a concern for addicts, require the abandonment of criminal prohibition and the development of a differentiated and appropriate regulatory system to control the availability of drugs.

We urge you to move in that direction.

Endnote:

What exactly the short-and long-term effects of particular drugs are at particular potencies, dosages and frequencies of use is often a matter of dispute. But it is critical that such disputes be settled by impartial scientific scrutiny and not, as they often have, by ideology, politics and propaganda.

1999, The American Civil Liberties Union