Scary facts about the War on Drugs
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The following letter was written by Associate Professor of Law
Jeffrey M. Blum of the University of Buffalo School of Law, in
response to a request from a federal court judge, and is a good
summary of many of the things that are wrong with the "war on
May 21, 1990
The Hon. John L. Elfvin
United States District Court
Western District of New York
Buffalo, New York 14202
Re: United States v. Anderson, CR-89-210E
Dear Judge Elfvin:
I have received a request from your Chambers for a
submission in the nature of an amicus curiae brief addressed to
"whether today's climate of allegedly rampant importation of
contraband drugs * * * * justifies a `relaxation' of the
Constitutional rules which would otherwise control."
I am told that argument on this question is scheduled for June 4,
1990. Unfortunately my publishing deadlines and commitments at
this time of year preclude me from preparing a full brief.
However, because I appreciate the request and believe it is
critically important for members of the judiciary to be well
informed on this issue, I wish to offer three things in response:
first, the instant letter brief which will simply list proposed
findings of fact that bear centrally on the issue, second, the
enclosed packet of readings that documents some of the proposed
findings and assesses the drug war from a variety of
perspectives, and third, my personal expression of willingness to
speak free of charge regarding any or all of the proposed
findings to any gathering containing influential members of the
Western New York legal community.
The proposed findings are based upon information I have
gathered from a variety of what I believe to be reputable
sources. In most cases more than one source is involved. The
proposed findings are offered in support of the following answer
to Your Honor's question:
No, today's climate of allegedly rampant importation of
contraband drugs * * * * does not justify a `relaxation'
of the Constitutional rules which would otherwise control.
Rather, it necessitates a strengthening of constitutional
norms to safeguard reasonable exercises of personal liberty
from arbitrary and unwarranted invasion, and to prevent
uncontrolled cycles of hysteria from severely impairing our
constitutional form of government.
Professorial Amicus' Proposed Findings of Fact
1. For several years now the United States government's "war on
drugs" has been inspiring a series of decisions substantially
cutting back on established constitutional rights, particularly
in the areas of the fourth, fifth and sixth amendments to the
U.S. Constitution. See- Wisotsky, Crackdown: The Emerging Drug
Exception to the Bill of Rights, 38 HASTINGS L. J. 889 (1987).
2. The drug war has been directed against a variety of very
different illicit substances, some highly addictive and posing a
significant public health problem, and others not. Over three-
fourths of the illicit drug use in the United States involves
smoking or ingestion of marijuana. For each of the last ten
years marijuana has accounted for a majority of drug-related
arrests, seizures, property forfeitures, and expenditure of law
enforcement funds. Because of marijuana's easy detectability,
laws against it have generated an average of close to 500,000
arrests annually in the United States. See- annual household
surveys of the National Institute of Drug Abuse, and annual
reports of the U.S. Department of Justice.
3. There is not now, nor has there ever been, credible medical
evidence to justify this level of law enforcement effort against
marijuana. Rather, several presidential panels of experts and a
number of other comprehensive reputable studies have consistently
and unequivocally shown marijuana to be far less addictive, less
toxic, less hazardous to health, less disruptive of family
relationships, less impairing of workplace productivity and less
likely to trigger release of inhibitions against violent behavior
than alcohol. See- Hollister, Health Aspects of Cannabis, 38
PHARMACOLOGICAL REVIEWS 1 (1986) (included in enclosed packet).
4. Marijuana was first made illegal in the United States in the
early twentieth century largely for two reasons, neither of which
was health-related. The first publicly known large user group of
marijuana was Mexican-Americans. Marijuana laws began being
passed in Southwestern states as part of a self-conscious
harassment campaign designed to drive Mexican-Americans out of
the United States and "back" to Mexico. This harassment campaign
intensified during the 1930's when the depression was making jobs
scarce and causing Anglo-Americans to covet the jobs held by
Chicanos. For proposed findings 4 through 7, infra, see-
Riggenbach, Marijuana: Freedom is the Issue, 1980 LIBERTARIAN
REVIEW 18 (included in enclosed packet).
5. The second important reason for marijuana prohibition was
the covert protectionist activities of paper and synthetic fiber
industries in the 1930's. These interests, of which the Du Pont
Corporation was the most important representative, wanted to
eliminate possible competition from the hemp plant (marijuana is
comprised of the buds or flowers of the hemp plant), which had
recently become a serious "threat" as a result of the invention
of the hemp decorticator machine. With such a machine in
existence, competition could have become severe because hemp, in
contrast to trees, is an annual plant with no clearcutting
problem. Hemp also is believed to produce 4.1 times as much
paper pulp as trees, acre for acre.
6. Several trends in government converged to make
hemp/marijuana prohibition possible. The New Deal Court had
recently swept away earlier established doctrines of economic due
process which had limited covert protectionist uses of government
agencies. Andrew Mellon, the chief financier of the Du Ponts,
had become Secretary of the Treasury and appointed his nephew,
Harry Anslinger, to head the newly created Federal Bureau of
Narcotics. Anslinger proceeded to misclassify marijuana, which
is a mild stimulant and euphoriant, as a narcotic, and to make
its prohibition his agency's top priority. In addition, the
recent lifting of alcohol prohibition had confronted a number of
federal agents with the risk of unemployment if new forms of
prohibition could not be instituted. All these factors
contributed to passage of the Marijuana Tax Act, the initial
federal prohibitory legislation, in 1937.
7. Throughout the 1930's a lurid "reefer madness" propaganda
campaign was carried on throughout the nation, largely through
the Hearst newspaper chain. The Hearst chain, whose vertical
integration had caused them to buy substantial amounts of timber
land, had been accustomed to using lurid propaganda campaigns to
sell newspapers since the Spanish-American War in 1898. The
"reefer madness" campaign was based partly on the knowledge that
Pancho Villa's army had smoked marijuana during the Mexican
Revolution. It portrayed marijuana as a powerful drug capable of
causing Anglo teenagers to turn instantly into hot blooded,
irrational, violent people, much akin to the "Frito bandito"
stereotype of Mexican-Americans.
8. The "reefer madness" campaign rested on a large number of
anecdotal stories of violent incidents, almost all of which have
turned out to have been fictitious and traceable to a single
doctor who had worked closely with Harry Anslinger. One
indication of the stories' falsity is that during the Second
World War and Korean War Anslinger himself shifted from calling
marijuana a violence-inducing drug to calling it a menace that
had the capacity to turn large numbers of young people into
pacifists. For proposed findings 8 through 11, infra, see Herer,
THE EMPEROR WEARS NO CLOTHES (Los Angeles: HEMP Publishing, 5632
Van Nuys Blvd., Van Nuys, Calif. 91401).
9. Since marijuana began becoming popular among the white
middle class in the mid-1960's a number of specious medical
studies alleging great harm from marijuana have been widely
publicized. The most important of these, and the source of the
widespread myth that marijuana damages brain cells, involved
force feeding rhesus monkeys marijuana smoke through gas masks.
The monkeys consumed in a matter of minutes amounts of smoke far
greater than what human beings would be likely to consume in a
month. The monkeys suffered substantial brain damage that
appears to have been caused by carbon monoxide poisoning from
10. Covert economic protectionism appears to have played a
continuing important role in sustaining marijuana prohibition
during the last decade. Pharmaceutical companies, possibly
alarmed at the increasingly widespread use of marijuana as a
versatile home remedy, provided most of the funding in the late
1970's and early 1980's for a network of "parents' groups against
marijuana." By far the largest sponsor of the Partnership for
Drug-free America, which blankets the airwaves with anti-
marijuana commercials, has been the Philip Morris Company.
Philip Morris owns several brands of tobacco cigarettes and is
the parent company of Miller Beer, and possibly some other brands
of beer as well.
11. Partnership commercials, while exaggerated but to some
degree truthful about cocaine, have been uniformly uninformative
about marijuana. They have ranged from merely casting negative
stereotypes of marijuana users as lazy and shiftless to being
instances of outright (and possibly legally actionable) fraud.
One widely aired commercial compares the brainwaves of "a normal
teenager" and "a teenager under the influence of marijuana." The
latter was later admitted by Partnership officials to have been
the brain waves of a person in a deep coma.
12. Largely as a result of such government and corporate-
sponsored propaganda campaigns a majority of people have come to
support an across-the-board crackdown on illicit drug use and
sales. Due to this political climate a number of harsh statutes
have been passed during the last five years and these, combined
with various "relaxations" of constitutional restrictions on law
enforcement activities, have resulted in large numbers of young
people receiving ten, fifteen and twenty-year mandatory-minimum
sentences for transport and sale of marijuana. Thousands of
people have forfeited ownership of their farms, homes, shops and
vehicles for growing, and in some instances merely possessing,
marijuana. See generally- the Omnibus Anti-drug and Anti-crime
Acts of 1984, 1986 and 1988.
13. Because of this wholly unjustified crackdown on marijuana,
people around the country have come to view the term "Your Honor"
as connoting a person of ill will, mean spirit and low principle.
"The Government" has come to connote an organization that is both
very inefficient in its processing of information and very casual
current system of black market distribution which generates
widespread crime, escalating rates of incarceration and a
substantial hidden subsidy for organized crime. Whatever
disincentives were needed to keep large numbers of people from
choosing to become addicts (e.g., making addicts wait in line for
two hours to get their doses) could be built into the system of
distribution. Such a system worked quite well in Great Britain
until the issue became too politicized for it to continue. See
31. Psychedelic drugs pose greater hazards than marijuana, but
less than those of addictive drugs like heroin and cocaine.
While some psychedelics, such as PCP, may be inherently dangerous
and thus appropriately prohibited altogether, most can be taken
safely by most people. The problems posed by LSD, for example,
in some ways resemble those presented by scuba diving. Each is
seen as a form of exploration that opens new vistas. Hence
participants often find the activity enormously stimulating and
inspiring. Each activity poses a small but significant risk of
serious personal harm, these being death for one and aggravation
of pre-existing states of mental instability for the other.
Untrained, unsupervised use of unchecked substances or equipment
are ill-advised in both cases. Conversely, though, a government-
orchestrated campaign of persecution for either group of
explorers is likely to be viewed as barbaric by knowledgeable
persons. In each case a premium should be put on devising social
policies that minimize the hazards of the activities in question.
* * * * *
Thank you, Judge Elfvin, for the opportunity to place these
proposed findings of fact before the Court. I believe Your Honor
can discern the relationship between the information they present
and the answer proposed in response to the Court's question. If
I may be of any further assistance, please do not hesitate to
call my secretary at (716) 636-2103. I do, however, expect to be
out of town during the period of May 21, 1990 to June 10, 1990.
Jeffrey M. Blum
Associate Professor of Law
The Honorable Richard J. Arcara
The Honorable Robert L. Carter
The Honorable John J. Callahan
The Honorable M. Dolores Denman
The Honorable John H. Doerr
The Honorable Samuel L. Green
Susan Barbour, Esq.