Deja Vu: a Federal Judge Revisits the war on Drugs

The so-called “War on Drugs” is a perfect example to which one can apply the semi-humorous play on words, “we have met the enemy and it is us.”[3] Not much more is humorous about this war.

Fourteen years ago, I first made public my private views regarding this subject. While presenting a paper at Colby College in Maine, it was already clear to me that we as a society were our own worst enemy in dealing with this overpowering social prob­lem. I also suspected, although not to the extent that I perceive to­day, that nothing I was doing in support of this war, which was mostly enforcing our laws and putting people behind bars, would likely change the situation in any measurable degree. My presentation later developed into a law review article published by several academic journals.[4] After a detailed analysis of the statis­tics related to the consumption in the United States of both legal and illegal drugs, I proposed that an “objective multi-discipli­nary study” be carried out by a bipartisan commission ap­pointed by the Executive Branch and Congress, to “independently assess the facts and recommend courses of conduct” to confront the issues raised by the illegal drug problem[5]. I further suggested that in the meantime pilot programs decriminalizing some drugs, such as marihu­ana, should be considered.[6] Of course, not much has happened as far as the suggested commission or study are concerned, but some progress has been made in some states as far as decriminalizing marihuana possession for personal or medical reasons.

The Colby lecture and my article received a modicum of noto­riety, not so much because of their content, which was hardly radi­cal in its ultimate moderate proposals and which were certainly not new, but because I was then the chief judge of the U. S. Court of Appeals for the First Circuit. Undoubtedly, certain segments of the public were taken aback, perhaps disapproving that someone in my position was speaking out on what was obviously a controversial subject, and further, in which I criticized, however mildly, a govern­ment policy and course of action, which at first glance was enshrined in virtuosity. This reaction was not unexpected on my part, for I must confess, that when I chose to speak out on this mat­ter I was hoping to jump-start much needed public discussion, even at the risk of some disapproval for my views. I believed then, and still do, that the citizenry can benefit from receiving the perspec­tive of one whose duty it is to enforce the laws that provide the framework for this war.

Sufficient time has passed since my last incursion into this subject to allow me to take stock of where we stand today on this “War on Drugs”, update my viewpoint as to its success or fail­ure, and express a more definite and less timid course of action than the one I adopted in my previous article on this question. Al­though I will be principally discussing the subject as it affects the United States, it is obvious that in this shrinking planet such a myo­pic view of a problem of international dimensions can hardly be geographically contained in such a manner.[7]

The world of illegal drugs

I initiate the discussion by referencing two United Nations statistics: (1) it is estimated that 3.5 to 5.7% of the World’s adult population uses illegal drugs,[8] and (2) that this illegal industry generates $320 billion in annual reve­nues.[9] To put these figures in context, this means that approximately 250 mil­lion persons[10] use illicit drugs worldwide, and that the annual revenue gener­ated by the sale of this illegal contraband is higher than the annual public budg­ets of Colombia, the Dominican Republic, India, Switzerland, or Venezuela to mention just a few examples.[11] Perhaps it is worth remembering that even a small part of the economic power gener­ated by these unlawful enterprises allowed the Escobar drug cartel in Colombia in 1986 to offer to pay that country’s $10 billion national debt in exchange for being given a free hand to engage in its nefarious,[12] but extremely profitable activities.[13] It is estimated that the Mexican and Colombian drug cartels alone generate between $18 and $39 billion from the wholesale distribution of illicit drugs.[14]

What is the goal that we hope to achieve by pursuing the “War on Drugs”?

Analysis of the dual factors brought to light by the cited U. N. statistics, namely, (1) the huge number of persons using illegal drugs (which in turn creates the market forces that generate the large-scale unlawful commerce), and (2) the tremendous profits rewarding the risk takers/entetrepreneurs[15] that engage in this illegal trafficking,[16] holds the key to understanding and dealing with (notice I do not use the word “resolving”) the issue before us. This analysis must commence by inquiring as to the goal or goals pursued by those who promote the present strategy.

In 1998, in what I believe was an overly optimistic and unrealis­tic goal, the UN declared that its stated purpose in promot­ing and backing the “War on Drugs” at an international level, was the achievement of “a world free of drugs.” The UN pledged to “elimi­nate or significantly reduce the manufac­ture, marketing and traffick­ing of psychotropic sub­stances.” by the year 2008.[17] As we now know, and surely suspected at the time if one was at all knowl­edgeable in this field, this was a euphoric vi­sion that was quickly tem­pered by the realities of the international illegal drug trade. Although in 1998 when the UN made its aspira­tional announce­ment, the total world production of opium was approxi­mately 430 metric tons, and that of cocaine approx­i­mately 825 met­ric tons,[18] by 2008 this production had increased to 880 metric tons for opium, and 994 metric tons for cocaine.[19] Even though marihuana is pro­duced in 170 countries, the fact that it is grown in small plots and in hydro­ponic operations, made it difficult to quantify with any degree of certainty whether production increased or decreased during the 1998-2007 period.[20]

A brief survey of the drug scenario in several leading countries, whereas hardly comprehensive, is worthwhile to give some idea of the global nature and scope of this intractable problem: [21]

Afghanistan. It is the world’s largest producer of opium, even after a 22% decrease in the acreage of poppies under cultivation in 2008, which reduction was mainly caused by reason of the “other War”. In 2007, Afghanistan produced 648 metric tons of heroin. The Taliban, notwithstanding its allegedly Islamic fundamentalist composition, as well as other antigovernment groups, participates in and profits from the opiate trade, which is a key source of funding for the Taliban, at least inside Afghanistan. Widespread corruption and political instability impede counter-drug efforts.

Burma (Myanar). Next to Afghanistan, Burma is the world’s second largest producer of illicit opium. In 2008, it produced 340 metric tons, an increase of 26% over the prior year. The illicit drug trade is a major source of funding in the area controlled by the United Wa State Army, located in the northeaster semi-independent part of the country bordering on the P. R. China. Burma is a major source of heroin for S. E. Asia and Europe.

Colombia. It is the world’s leading coca leaf producer with 167,000 hec­tares under cultivation in 2007, a 6% increase over 2006 notwithstanding an aggressive aerial eradication program funded by the United States, which, in 2005 alone targeted close to 130,000 hectares. Colombian sources produce 535 metric tons of cocaine and supply nearly all of the U. S. market as well as much of the European consumption. Colombia has also become an important producer of opium with most of the heroin extracted going to the United States.

Dominican Republic. It is an important transshipment point for drugs from South American destined for the U. S. and European markets. It has replaced Puerto Rico as a transshipment point be­cause of aggressive law enforcement efforts there.[22] The Domini­can Republic is also used for the transfer of ecstasy shipments from Belgium and the Netherlands headed for the U. S. and Cana­dian markets. The country is also a major money-laundering situs for Colombian drug cartels.

India. It is the world’s largest producer of licit opium, a reminiscence of the 19^th Century Opium Wars. An undetermined quantity of legally produced opium is believed to be diverted to illicit international markets. India is also a major illicit producer of methaqualone.

Iran. Despite vigorous enforcement and interdiction on the Afghan border, is an important transshipment point for heroin to South East Asia. Iran also suffers one of the highest opiate addiction rates in the world.

Mexico. It is a major drug-producing nation and transshipment point into the United States as 90% of the cocaine imported into this country comes from South American sources. In 2007, Mexico produced 19 metric tons of heroin for importation mostly into the western U. S. and about 15,800 metric tons of marihuana, also for U. S. consumption. Mexican drug cartels are reportedly operating widely throughout the United States with varied intensity. They are the largest suppliers of cocaine, marihuana and methamphetamine to the U. S. market. Mexico is also an important money laundering, situs for the illicit drug industry.

Netherlands. It is a major source of U. S. bound ecstasy and a significant money-laundering center.

Panama. It is a major cocaine transshipment point and a preemi­nent money–launder­ing center for narcotics revenue, particu­larly within the Colón Free Zone with its concentration of international banks.

Peru. Until 1996 was the world’s largest producer of coca leaf, it is now second behind Colombia, with about 210 metric tons of cocaine produced in 2007. Although some of the cocaine ends up in the U. S. markets, increasingly it is being shipped to Brazil, Chile, Argentina, and Bolivia or transshipped to Europe and Africa.

South Africa. Is the world’s largest market for illicit methacho­line (a pharma­ceutical depressant, referred to as “ma­drax” in South East Asia and Africa), which is imported from India through various East–African countries.

Spain. Despite vigorous law enforcement efforts, it is a major trans­ship­ment point for cocaine and hashish (the resinous exudates of the cannabis or hemp plant) destined for the European market. It is also a leading money-launder­ing site for Colombian drug cartels and organized crime.

Switzerland. Despite U. S. pressure, because of its banking laws, Switzerland remains an important repository of illegal drug proceeds and the situs of layered money-laundering schemes.

United States. It is the world’s largest consumer of cocaine (shipped from Colombia through Mexico and the Caribbean). It is also a major consumer of Colombian and Mexican heroin, marihuana, ecstasy, and methamphetamine. It is an illicit producer of mari­hu­ana, depressants, stimulants, hallucinogens, and methampheta­mine, mostly for local consumption. Despite strict banking con­trols, there is a tremendous amount of money-launder­ing activity taking place by the various illicit drug organizations and orga­nized crime.

The European Commission noted this general increase in produc­tion of illicit drugs in 2008 in its Report on Global Illicit Drug Markets. Cover­ing the period from 1998-2007, the European Commission categorically stated that its study “found no evidence that the global drug problem was reduced”.[23] This conclu­sion was not of uniform applicability throughout the world or through­out this period, as in fact the drug problem generally im­proved in the rich countries while worsening in a few large, develop­ing or transi­tional coun­tries.[24] Perhaps be­cause the U. N. realized that its stated goal of a “drug free world” was unattainable, in 2009 it did an about face, and embraced drug decriminalization as an alternative to the penal model previously sup­ported.[25] In this report, the United Nations lavished praise on Portugal’s innova­tive drug strat­egy, which since 2001 had re­moved criminal sanctions for personal drug possession, emphasiz­ing treatment over incarceration.[26]

The agenda of the United States, the originator of the “War on Drugs” and the prime exponent of this strategy since then, has re­mained substantially unal­tered since its commencement in the early 1970’s. In 1988, Congress stated, “that legalization of illegal drugs on the Federal or State level, is an uncons­cionable surrender in a war in which, for the future of our country there can be no substitute for total victory.”[27] This rhetoric was followed by a proclamation stating that, “[i]t is the de­clared policy of the United States to create a Drug-Free America by 1998.”[28] In support of its prohibitionist model, the United States became a party to several treaties[29] and multi-national covenants,[30] and enacted numerous domestic statutes,[31] clearly aimed at promot­ing a drug-free society, intolerant to certain selectively designated drugs[32] that were ear­marked as subject to criminal proscription. Although this is the policy pro­moted and followed by the Federal Government[33] and most of the States, as will be presently dis­cussed, fifteen US jurisdictions have experimented with various schemes aimed at the decriminalization/medicalization of marihu­ana.[34] The legitimacy of these state laws in light of the federal govern­ment’s constitutional supremacy in this field seems to place these experiments in legal doubt, albeit the present Administra­tion’s announcement in October 2009 that federal prosecutors would no longer prosecute medical users in those states.[35] Nevertheless, these programs bear close scrutiny in light of the other issues (other than the legality of these programs) that they raise, and perhaps, solve.[36]

Have we accomplished our goal?

In my view, the one proposition that seems to be beyond ken is that if the “War on Drugs” purported to eradicate or to substantially reduce illegal drug production and consumption, this war has utterly failed to accomplish or to even come close to achieving this goal. I do not see how we can avoid the conclusion that the “War on Drugs” has not only long been lost, but that our defeat for some time has been at high human[37] and material costs. This conclusion is neither a new nor startling proposition, nor is it defeatist as claimed by some. It is rather, standing up and facing the unforgiving facts.[38]

In this respect, it is essential to be mindful that the basic underly­ing law that permeates and dictates the entire illegal drug conun­drum is the economic law of supply and demand, not the laws that I help to enforce. To this end, it is the huge American consumer pool,[39] most of whose members are never held accountable for creat­ing the demand for the product, “the fuel that feeds” the motor” generating this entire dilemma.  As has been aptly stated, “[t] he United States remains the source of the appetite that sets the industry in motion.”[40]

One, perhaps not entirely satisfactory way of measuring the success or failure of the conduct of this war in the intervening years since I last expressed myself on this issue, is to look at the available comparative statistics between the two time periods, bearing in mind, the fact that in the shadowy world of illegal drugs and their use, statistics are particularly suspect.[41] There are, however, certain hard facts which cannot be easily disputed. We start with an accounting of the material costs of the war.

What have been the costs to the American taxpayer of the “War on Drugs”?

In 1973, when the war commenced, the total federal expendi­tures on enforcement of the illegal drug laws of the United States were less than $100 million.[42] By 1994, this figure had risen to $12.184 billion annually, more than 121 times the 1973 num­ber.[43] This amount increased to $14 billion only two years later in 1996 when I wrote my original article on this subject.[44] I will not detail the step by dreary step upward of this sum since 1996 to the present. Suffice it to say that the law enforcement expendi­tures of the United States had risen to $44.1 billion yearly by 2009, with a total of approximately $1 trillion having been spent since the com­mencement of the War in 1973 to the present.[45] Furthermore, State expenditures related to illegal drug enforcement were esti­mated in a 1987 study at $5 billion annually, a figure that most cer­tainly has increased considerably since then to the present.[46] In the meantime, the US Coast Guard estimates that it is able to seize “at best 8 to 10% of drugs smuggled by sea.”[47]

The obvious question to be posed is, what results and benefits have we as a society received from this huge investment of public funds?

The human costs of the “War on Drugs”

The most critical ramifications and consequences of the “War on Drugs”, are the human costs of this course of action. After almost forty years of doggedly presenting the same order of battle and strategy to the enemy, in which we have made tremendous invest­ments in both public rhetoric and treasure, to say nothing of out-and-out law enforcement emphasis at all levels, I believe that the public has a right to expect and demand that some mayor progress be shown in solving, or at least ameliorating, what is proba­bly the single-most recurring internal social problem in the United States, with the possible exception of our economy, a not totally unrelated problem if we consider the useless drain that the “War on Drugs” has been on our national treasure.

We commence our scrutiny by stating the undeniable fact that the United States has the highest prison population in the world, with approximately 2.3 million inmates incarcerated in fed­eral and state institutions.[48] This represents more persons in prison than even the People’s Republic of China, whose popula­tion is six and a half times that of the United States.[49] Furthermore, and of rele­vance in evaluating the efficacy of the present policies regard­ing illegal drugs, it is worth taking note of the fact that the prison popula­tion in the United States rose from a total of about 200,000 state and federal prisoners in 1970, to 1,540,805 in 2008, to which must be added the 785,556 inmates confined in local detention cen­ters for a total of over 2.3 million persons under confine­ment.[50] This was at a cost of $20-30,000 per year per inmate for keeping prison­ers in federal prisons in 1994, and with $50,000 to $100,000 per prisoner for building new facilities, depending on the level of security and climate.[51] The Federal Bureau of Prisons estimated in 1994 that it cost $58.50 per day, or $21, 352 each year, to keep a federal inmate in prison.[52] State and local costs for incarceration are difficult to estab­lish with certi­tude.

If we count the number of persons under the various probation or super­vised release programs, the total number of persons under penal supervision in the United States exceeds 7 million persons.[53]In fact, in 2008, more than one in every 100 Americans resided in a prison or jail.[54] Moreover, the number of drug related crimes in the United States which resulted in imprisonment rose from 41,000 in 1980, to over 500,000 in 2008,[55] an exponential increase which although attributable in part to more vigorous and effective law enforcement efforts, also speaks legions of the failure to achieve the war’s goal of eliminat­ing or substantially reducing illegal drug activities in this country. In 2006, 53% of all federal prisoners were incarcerated for drug-related viola­tions.[56]In fact, by 2007 the number of arrests for crimes related to illegal drugs exceeded arrests for all other crimes, with arrests for illegal drugs topping 12.5% of the arrests for all crimes.[57]

The statistics for drug use, although at times encouraging, have on the whole and in the long run, been discouraging and cer­tainly confirm the conclu­sion that our present prohibitionist model has been a failure and has not achieved any substantial progress in achiev­ing its stated goal. This is particu­larly apparent when we compare the overall results in the illegal drug arena with that of alcohol and tobacco. In 1996, when I first spoke out on this subject, there were approxi­mately 40.3 million tobacco users,[58] 103 million alco­hol users,[59] and almost 12.2 million illicit drug users in the United States.[60] The present[61] esti­mates for these items are 69.7 million for tobacco users,[62] 130.6 million for alcohol,[63] and approximately 21.8 million persons use illicit drugs.[64]

Translating this information to practical terms:

(1) Tobacco has approximately 69.7 million users in the United States[65] and causes more fatalities in the United States than those caused by alcohol, HIV, automobile accidents, illicit drugs, homicides and suicides.[66] The annual death toll of tobacco-related deaths rose from 188,000 in 1965 to 434,000 in the late 1980’s,[67] to about 435,000 at present[68] This notwithstanding that the average cost of a pack of cigarettes is $5.51, of which state taxes average $1.45 per pack plus the federal cigarette tax of $1.01 per pack, all of which is paid by the consumer.[69] Of course, the costs to society are not limited to just the outright deaths, with the obvious emotional and sentimental costs to family and friends, but also involves the intangible loss to the community of a person’s multi-faceted contributions to society. A more accountable cost is the fact that in the United States close to 8.6 million persons suffer from tobacco-related illnesses, [70]with an annual direct cost to the federal and state governments of $96 billion,[71] including $30.9 billion in healthcare and disability benefits paid for the treatment of diseases and illnesses associated with this drug.[72]

(2) Alcohol is the most commonly used drug in the United States, with almost twice the number of users as those using tobacco in its various modalities, and six times more than the case of illegal drugs. In 1991, it was estimated that there were 10 million alcoholics in the United States, with about 73 million adults suffering from this condition.[73] That year there were an estimated 45,000 alcohol-related traffic fatalities[74] in the United States,[75] a figure that is only part of the total number of alcohol-linked deaths, which reached over 100,000 that year.[76]

The total annual cost of alcohol abuse in the United States for 1998 alone, including direct governmental spending and private spending, as well as lost productivity, was estimated at over $184.6 billion.[77] In 1998, public and private entities spent $9.8 billion on health care and disability costs related to alcohol abuse.[78] An additional monetary and human cost to American society related to alcohol abuse is the fact that two fifths of all crimes leading to state prison sentences are committed under the influence of alcohol (and, of course, in many cases also combined with the use of illegal drugs).

In 2008, slightly more than half of Americans aged 12 or older reported using alcohol, which is 130.6 million persons, or 51.9% of our population.[79] Today, the alcohol-related deaths are calculated at about 75,000,[80] with the life expectancy of alcohol abusers being reduced by an average of 30 years.[81] In fact, alcoholism is the third major cause of death in the United States, after tobacco-related causes and illnesses related to bad eating habits.[82] Traffic accident fatalities in which alcohol plays a factor reaches approximately 38, 000 annually.[83] The federal government alone spends $45.5 billion on health care and disability costs associated with alcohol abuse.[84]

(3) Illegal drugs[85] were used by 11.7 million Americans 1996, a decrease from 24.8 million in 1979.[86] In 1996, there were approximately 5,000 deaths directly attributed to the use of illegal drugs by reason of overdoses. A significant decline in illicit drug use was noted throughout the 1980’s, with illegal drug use for all persons over 12 going down from 13.7% in that age group, to 5.6% by 1993.[87] In fact, there was a general decrease in the use of all illegal drugs of about 59.1% during that period[88].

This situation has turned upwards since the 1990’s.  It was reported in 2009 that 21.8 million Americans over 12 years of age were using illegal drugs, which represents 8.7% of the U.S. population in that age group.[89] This is almost twice the percentage of illegal drug usage rate that is estimated by the UN surveys as the world’s population of illegal drug users.[90]The 2008 ADAM II Report (Arrestee Drug Abuse Monitoring Program of the Office of National Drug Control Policy), indicated that as many as 87% of all arrestees for all crimes, tested positive for illegal drug use.[91] In the year 2000, approximately 17,000 Americans died of drug-induced causes, over 90% of which were from overdoses, a figure that rose to 39,000 by 2006.[92]

Marihuana is the illegal drug of preference, with approximately 16.7 million Americans users at present.[93] The potency of marihuana has increased in recent years, with marihuana grown and imported from Canada reportedly being the most potent in the underground market.[94] Marihuana is also claimed to be the biggest cash crop in the United States, being grown in every state and territory of the nation.[95] The consumption of cocaine by Americans remained stable between 1997 and 2006 at about 2.4 million persons, or 1% of the population over 12, and then decreased in 2008-2009 to 1.6 million or 0.7% of that age group.[96] The same flat user curve was reported for this period and age group, at 0.1% of the population, in the case of heroin.[97] In 2008, 1.9 million persons aged 12 and older were current users of heroin, comprising 0.7 % of the population.[98]

One major change in the illegal drug scenario since I last wrote on the subject has been the appearance of the so-called “designer drugs” such as methamphetamine (met).[99] They are referred to as “designer drugs”[100] because they can be produced through a series of fairly simple chemical procedures in home labs or in more sophisticated mass production clandestine facilities.[101] Even though met has been around for many years, and its popularity has waxed and waned over this period, it seems to be on the rise among several population subgroups.[102] The current increase (since the early 1990’s) of met use began in the western United States. However, by the mid-2000’s, its use had become of nationwide concern, with clandestine lab seizures increasing in almost all states during the 2000-2005 period.[103] SAMHSA estimated that from 1993 through 2003, the rate of admissions for treatment of methamphetamine or amphetamine abuse increased from 13 to 56 admissions per 100,000 for people aged 12 or older, which is a rough indicator of the general increase of drug use in the population at large.[104] In 2004, SAMHSA further estimated that 600,000 persons (or 0.2% of the US population) had used met in the prior month.[105] Also in that year, an estimated 12 million persons aged 12 and older (4.9% of this age group) had used met at least once in their lifetime, and 1.4 million 12 and older (0.6% of the age group) had used this illegal drug during the year previous to the study.[106] The 2009 NSDUH reported an increase to 731,000, or 0.3% of the US population.[107] Although there is no typical met user, the trend is that many are young (the average age at first use was 18.9 in 2002, 20.4 in 2003 and 22.1 in 2004), because it is cheaper and longer lasting than cocaine, with the highest rate of use during 2006 being among young adults aged 18 to 25, followed by youth aged 12 to 17, with the lowest use for those over 26.

FIG. 1 THE ILLEGAL DRUG LANDSCAPE IN THE U.S.

SAMHSA’s latest National Survey on Drug Use and Health for 2009, released on September 16, 2010, indicating that illicit drug use in the United States increased from 8% of the population over age 12 in 2008, to 8.7% in 2009, a change driven in large part by increases in marijuana use.[108] There is particular relevance to the finding that 21.2% of young adults (those 18-25), experimented with illegal drugs in 2009, an increase from 19.6% in 2008.[109]

What have been the institutional costs of the “War on Drugs”?

As it happens with all wars, the first casualties of this war have been objectivity, truth, and ultimately, the law itself. As stated long ago by Cicero, Inter arma enim silent leges (“In time of war the laws are silent.”). Such has been the case with this conflict. The rule of law, as relates to our civil and constitutional rights,[110] has been mangled at the hands of an Executive branch that has pushed enforcement to the limits on what amounts to a theory that the ends justify the means, a Congress that has stretched the borders of its legislative powers under Article I of the Constitution[111] in an attempt to do what it believes is politically expedient, and a judiciary which has generally been compliant and has stretched even those limits to the breaking point, failing to contain the other branches within the fence that is established by the Constitution. As sardonically stated by Justice Stevens in a case involving warrantless searches, “no impartial observer could criticize [the] Court for hindering the “War on Drugs”,[112] rather, the Court had become a”loyal foot soldier in the Executive’s fight against crime.”[113]

Although there is no legal basis for carving out a “drug exception”[114] to the application of the Constitution, and its existence has been rejected at the highest levels[115], de facto and sub silencio it is honored by the actions of all three branches of government.[116] Law enforcement activities, government policies, drug-related legislation and court decisions have all subtly, and sometimes not so subtly, coalesced to diminish and undermine the philosophy and text of the Bill of Rights.

The embattled Fourth Amendment[117]is probably the leading exam­ple of a “War on Drugs” casualty.[118] As has been erstwhile noted in an apropos reference to George Orwell’s, 1984, a date that we have passed in more than one sense, the “War on Drugs” has led to “[a] gradual but perceptive rise in Big Brotherism against the public at large in the form of eavesdropping, surveillance, monitor­ing, informing, and other intrusive enforcement methods.”[119] Among the inroads that have been sanctioned are those that have permitted intrusions into our homes by the use of aerial surveil­lance,[120] a practice that has led to the practical abandonment in other drug-related contexts of the privacy test announced in Katz v. United States.[121] These relaxations of the restrictions of the Fourth Amendment have allowed the expansion of police authority to carry out warrantless searches for drugs on individuals and automo­biles under circumstances beyond the original intention of Terry’s rationale,[122] which was based on police officer safety, not as a subterfuge, for a search for criminal evidence without meeting the requirements of the Fourth Amendment. The creation of the so-called “good faith” exception to the Fourth Amendment require­ment of probable cause established in United States v. León,[123] which in practice we see stretched beyond “good faith,” is another example of the courts’ permissive attitude towards the government in drug cases. Equally troubling is the upholding of the validity of a warrant issued on the basis of a partially uncorroborated anony­mous tip,[124] leading to cases in which it was allowed to corroborate the anonymous tip by the post facto discovery of illegal evi­dence.[125]

The U.S, Court of Appeals for the Sixth Circuit stated it well in a drug-related case involving the Fourth Amendment:

Presently, our nation is plagued with the destructive effects of the ille­gal importation and distribution of drugs. At this critical time, our Consti­tution remains a lodestar for the protections that shall en­dure the most pernicious affronts to our society. The warrant re­quirements of the fourth amendment govern zealous law enforce­ment. The drug cri­sis does not licence the aggrandizement of govern­mental power in lieu of civil liberties. Despite the devasta­tion wrought by drug traffick­ing in communities nationwide, we can­not suspend the pre­cious rights guaranteed by the Constitution in an effort to fight the “War on Drugs”.[126]

The use of “drug-courier” profiling, a technique tacitly sanc­tioned by the Supreme Court in United States v. Sokolow,[127] and which is often based on racial characteristics, is a common police practice that has further led to the impingement of citizen rights under the Constitution.[128] In Soklow the Supreme Court majority decision, which effectively white washed the dubious actions of the police, led Justice Marshall to state in his dissent that the Court had shown its “willingness, when drug crimes or anti-drug policies are at issue, to give short shrift to constitutional rights.”[129]

Credible complaints have been filed in New York and New Jersey regarding the police targeting of African-American and Hispanics with the use of stop and frisk tactics that are not justified except by the use of preconceived drug-courier profiles. Some of these traits include being of color, driving a fancy car, or being in a particular neighborhood, characteristics which could very well fit a large percentage of the population in minority neighborhoods. This police technique has led to considerable harassment and to civil rights violations of minorities. Statistical evidence suggests, for example, that in the New Jersey Turnpike, African-Americans are stopped by the state police at a rate that is considerably higher than it is for Caucasians.[130] This police bias is widespread, with similar claims being made throughout the country in such geographically disperse locations as Washington,[131] Los Angeles[132]and Boston,[133] to say nothing of the jurisdictions bordering Mexico. Of course, the use and abuse of the drug-courier profiles affects not only citizens of color, butthe citizenship in general.[134]

As we continue down the Bill of Rights, we come upon legislation and court decisions that directly impact the Fifth[135] and Sixth Amendments’ due process and right to counsel provisions.[136] The cases show a definite trend in the lowering of the bar in allowing the government to establish guilt by proof beyond a reasonable doubt in drug-related cases with unusual laxity, in many cases by the piling of inference upon inference. Cf. United States v. Azubike, 564 F.3d 59 (Azubike II)(1st Cir. 2009) and United States v. Mangual-Corchado, 139 F.3d 34 (1st Cir. 1998), as well as in overlooking what would otherwise be considered outrageous government conduct in the prosecution of drug-related charges. See, United States v. Alvarez Machin, 504 US 653 (1992) (the abduction of a Mexican citizen in Mexico by D.E.A. agents for the purposes of bringing him to US territory for prosecution for the murder of a D.E.A. agent in Mexico, does not violate the Constitution or laws of the United States). In Calero-Toledo v. Pearson Yachts, 416 US 663 (1974), no lesser defender of civil rights than Justice Brennan allowed the confiscation of Pearson Yacht’s chartered vessel pursuant to Puerto Rico’s controlled substance statute, notwithstanding that Pearson was not only innocent of any wrong doing, but had in fact included a clause in the charter agreement prohibiting the presence of drugs aboard the boat. The Fifth Amendment’s guarantee against deprivation of property without due process was held to be no bar to confiscating the innocent property owner’s vessel.

When we come to the Sixth Amendment, the enactment of the Com­prehensive Forfeiture Act of 1984,[137] and the rulings of the Supreme Court in the cases of Caplin & Drysdale v. United States,[138] and United States v. Monsanto,[139] sustaining the validity of this statute as applied to attorneys’ fees of defendants charged in drug cases, represent a truly alarming degradation of the right to counsel of one accused of a crime.[140] This statute and these two cases combine to tip the scales of justice against criminal defend­ants in drug cases clearly in favor of the government, and seri­ously, affect the fair play that we take for granted exists in Ameri­can courts both against the accused and those that would represent them in those courts. Thus, the government is allowed to engage in the pre-trial freezing of assets of drug defendants as well as in the post-trial seizure of defendant’s property, thereby preventing the acussed of posting bail and using personal assets to provide an ade­quate defense.

It is hard to argue against the contention that the forfeiture stat­ute undermines the presumption of innocence and the Sixth Amend­ment right to counsel, for this statute allows the sequestra­tion of private property solely on the basis of suspicion (even if called “probable cause”) or the issuance of an indictment.  Before trial, a defendant is deprived of access to the funds and property necessary for bail, living expenses, and of course, the seizure of assets severely impinges his/her ability to defend him/herself from the merits of the accusations against him/her. The accused can liter­ally be ejected from his/her home with nothing more than the clothes on their back, not even a toothbrush! This type of draco­nian legislation seems excessive in a democratic country, even if marginally declared to be constitutional.

Along these grounds, some of the most egregious actions of the government are exemplified by its actions against defense lawyers, in which the govern­ment has received the support of the courts. The government has thus sought attorney’s fees information from a lawyer regarding representation of a client in drug cases, with the court rejecting an argument that this information was privileged and violated the client’s right to counsel.[141] The courts have also allowed the deposition of counsel by the government requiring the production of documents in his/her possession for the purpose of determining the amount, form, and source of payments made to counsel in connection that lawyer’s le­gal representation of a client in a drug case.[142]

The inherent conflict of interests created by this oppresive stat­ute, and by the courts’ support of the government’s actions, pro­motes even further abuse. Justice Blackmun cogently stated this in his dissent in Caplin & Drysdale:

Perhaps [the] most troubling [aspect of the case] is the fact that forfei­ture statutes place the Government in the position to exercise an in­tolerable degree of power over any private attorney who takes on the task of representing a defendant in a forfeiture case. The decision whether to seek a restraining order [on the property of defendant] rests with the prosecution, as does the decision whether to waive forfei­ture upon a plea of guilty or a conviction at trial. The Government will be ever tempted to use the forfeiture weapon against a de­fense attorney who is particularly talented or aggressive on the cli­ent’s be­half-the attorney who is better than what, in the Govern­ment’s view, the defendant deserves. The specter of the Government’s se­lectively ex­cluding only the most talented defense counsel is a very seri­ous threat to the equality of forces necessary for the adversarial sys­tem to per­form at its best. An attorney, whose fees are potentially sub­ject to for­feiture, will be forced to operate in an environment in which the Gov­ernment is not only the defendant’s adversary but also his own.[143]

Refuting the government’s contention that this law was not enacted to raise revenue for the government, Justice Blackmun further pointed to the additional potential for abuse by the prosecution:

The mentality of police officials and district attorneys suggests other­wise. Many such officers, particularly at the local level, are fund­ing an increasing amount of their operations from the proceeds of drug seizures and constantly bragging to the public that various pro­grams are not funded from tax dollars. Such programs of course cre­ate an enormous incentive for police and prosecutors to seek forfei­tures in questionable circumstances or even to manufacture crimes that will lead to the forfeiture of valuable property.[144]

Race and the “War on Drugs”

One of the most problematic, even if, probably unintended, consequences of the “War on Drugs”, has been its disparate impact on minorities in this country.[145] A statistic that speaks legions in support of this point is the fact that in 2008, although African-Americans and Hispanics constituted only 12.7% and 11.1%, respectively, of the general population in the United States, they made up 48.2% and 18.6 %, of those imprisoned in this country.[146] These results are undoubtedly intertwined with drug-related law enforcement, which in turn is greatly influenced by public perceptions and response to the drug problem.[147]

Although, as previously intimated,[148]this is in part due to biased law enforcement, the skewed outcome is not totally attributable to out and out prejudice. In fact, supporters of the “War on Drugs” argue that, if anything, drug law enforcement protects minority communities from addiction, harassment, and violence by the predatory tactics of drug lords and their gangs, an allegation that has some validity. Be that as it may, however, good intentions are irrelevant because the irrefutable facts establish the overwhelming negative impact of the “War on Drugs” on minorities. The adage, “the road to hell is paved with good intentions” is clearly applicable to this situation.

Moreover, such an outcome, irrespective of the lack of discrimina­tory intent, is a violation of our international commit­ments under the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), which the United States ratified in 1994[149]and is therefore the Law of Our Land.[150] Under ICERD, prohibited discrimination occurs where there is an unjustifia­ble disparate impact on a racial or ethnic group, regard­less of whether there is any intent to discriminate against that group. Furthermore, where official policies or practices are racially discriminatory, the State party to ICERD must act affirmatively to prevent or end the situation. There is little evidence that the United States has acted to meet these obligations.

In the public’s mind, race shapes the public perception of the drug problem, ergo, its response to the drug problem, and in turn, the actions of the law enforcement community and the courts to meet the public’s concerns, irrespective of their factual basis.[151]The clearest example of this chain of thought and reaction is the situation with cocaine and crack cocaine.[152]

The federal drug war initiatives significantly increasing the penalties for drug offenses[153] (resulting in the huge incarceration increase in America, previously alluded too), reflected the popular perception that “getting tough” on crime with harsh punishments was the way to “win” the “War on Drugs”. The use of cocaine in America, primarily in its powder form, had substantially increased in the United States in the 1970’s and early 1980’s, particularly among white middle-class Americans. However, smokable crack cocaine appeared in the mid-1980’s, which the public, ergo, law enforcement entities, associated with black Americans.[154] These biases were grounded on two major erroneous underpinnings.

First of all, despite the fact that crack cocaine became the prime target of law enforcement efforts[155] this was a misdirection of priorities, for powder cocaine has always been a far more prevalent illicit drug among American drug users. For example, the 1993 federal National Household Survey on Drug Abuse (NHSDA) found that although 11.3% of the US population had used cocaine in their lifetime, only 1.8% had used crack cocaine.[156]The 2008 national survey observed that while an estimated 8,554,000 persons, 12 years and older, had used crack cocaine at least once in their lifetime, as many as 35,298,000 in this category had used powder cocaine.[157]Second, and more on point with the issue of racial bias, is the fact that the number of whites that use “crack” far exceeds those of color, with it being reported that 62% of users are white, 26% black, and 9% Hispanics.[158]In fact, in the year 2006, 5,553,000 whites reported using crack in their lifetime, compared to 1,537, 000 blacks.[159]

Another related misconception deals with the racial composition of the drug user population. The statistics clearly show a higher rate of illegal drug use by white youths than of black youths. The proportion of white youths who reported using powder cocaine the year prior to the survey (5.4) was five times higher than that of blacks (1.0); and for crack cocaine, the white proportion (2.2) was nearly double that of blacks (1.2).  For marihuana (37.9 for whites), it was also significantly higher than for blacks (26.3).[160]

Notwithstanding these hard facts, politicians and the sensational­ist media focused on the effects of crack in the inner-city communi­ties, particularly public housing projects in which there are traditionally large proportions of African-American residents. [161] These areas became the principal focus of law enforcement efforts, thus resulting in a large proportion of blacks being the tar­get of arrests, convictions, and imprisonment for drug offenses as compared to the total population of crack cocaine users.[162]

The Congressional response to these misconceptions was to provide addi­tional ammunition for sending more people to jail, and for longer periods. The Controlled Substances Import and Export Act Penalties Enhancement Act of 1986[163] and the Anti-Drug Abuse Act of 1988,[164]imposed even higher penal­ties for possession and sale of “crack” cocaine than existed up to then. “Crack” be­came the only drug in which a five-year mandatory sentence was imposed for simple possession. Possession of only 5 grams of “crack” garnered a sentence equivalent to that which the accused had possession of 500 grams of powder cocaine.[165] On a similar note, it took 5,000 grams (5 kilos) of powder cocaine to equal the sentence imposed for only 50 grams of crack, a 10-year mandatory sentence.[166]Because, as previously outlined, blacks are ar­rested in disproportionate numbers to whites, and convicted on “crack” charges as compared to white drug users, and “crack” cocaine sentences are on average 43.5% longer than those imposed for equivalent amounts of powder cocaine,[167] the population of incarcerated Afri­can-Americans outdistances that of whites by 48.2% (blacks) to 33.2% (white). This is so notwithstanding the fact that they are a fairly small minority in the gen­eral population as compared to whites, with only 12.9% (blacks)[168]of the popula­tion as compared to 77.1% (white).[169]Moreover, the rate at which blacks were incarcerated by the states in 2007 was ten times greater (256.3 per 100,000 black adults versus 25.3 per white adult), than for whites.[170]That year, African-Americans constituted 33.2 % of those entering federal prisons for drug offenses.[171]

A sequel to the previous dismal statistics is the fact that after much harm was caused, by the present drug scheme, mostly to minority drug users, the Sentencing Commission in 2007 elimi­nated the 100:1 ratio in powder to crack cocaine, except in the manda­tory minimum cases, and recommended reform in this area to Congress. It took three years for Congress to act on this recommenda­tion. It finally enacted the Fair Sentencing Act of 2010,[172]signed into law by President Obama on August 3, 2010. Pursuant to this statute, the 5-year mandatory minimum sentence for simple possession is eliminated and the amounts that trigger the five and ten year minimums for crack and cocaine are increased to 28 grams of crack and 280 grams of crack and cocaine, respectively. In the meantime, the Supreme Court’s Booker[173] and Kimbrough[174] decisions signaled an official softening of the stance on sentencing, rendering the once-manda­tory Sentencing Commis­sion’s Guide­lines merely advisory, and allowing federal trial judges to exercise the discre­tion contem­plated by the Constitution to impose sentences for crack and cocaine be­low the range recommended by the Guidelines.

To be or not to be

We can continue to cite expert opinions, statistics and cases ad infinitum, but sooner or later we have to take a stand on what we, as a nation, will do about this intractable muti-faceted social, penal, medical and cultural problem. One thing I do know is that I have spent the last thirty-six years of my life incarcerating people for violating the illicit drug laws of the United States, yet I see nothing that would lead me to remotely conclude that anything that I, or for that matter, the entire “War on Drugs” machinery of the United States, has done in this interim, has had any perceptible import in curbing Americans’ insatiable appetite for drugs, ^[175] illegal or otherwise.

Putting people in jail is not a pleasant endeavor, as it is not meant to be even when dealing with people that are “not nice.” But I have done it without hesita­tion, at first, because it was my duty as a federal judge to enforce our laws, and further, because I thought I was contributing to making our nation a better place. Since those halcyon days, however, although I have continued to do my duty, and have continued to incarcerate people in considerable numbers for violation of our drug laws, I do so because I have taken an oath to enforce the laws in question irrespective of my personal views about them, not because I believe that what I am doing is making our country one iota a better place. In fact, I am now certain that is not the case, but rather that it is creating a considera­ble amount of private and public havoc to our society.

First of all, the massive incarceration of our population for drug law viola­tions has not stemmed the tide of drug use in this country. Just to remind you, in 1991-1993, approximately 13.9 million Americans (5.8% of our population over 12 years of age) , were using illicit drugs, a figure that increased to 20.1 million (8.3%) by 2006. This increase took place in the face of an expenditure of almost one trillion dollars as part of our government’s goal of having a “drug-free America” by 2008, and after the incarceration of more than 500,000 men and women for drug-related offenses during the 2006 period alone.

Our present approach, “The ‘War on Drugs’,” makes no sense. Undoubtedly, the facts demonstrate that it is a bankrupt way of dealing with the drug problem. As stated by David Dimston, “[t]hat the “War on Drugs” has been a complete failure is not even a question anymore.”[176]What we have ma­naged to do with this “War on Drugs” is exactly what we did with Prohibition in the 1920’s: we have created a powerful criminal sub-culture with economic power of incredible proportions, allowing it to subvert our economic, social and politi­cal systems; while failing to control, much less “prohibit,” the use and abuse of the proscribed drug(s). The Mafia then, and the drug cartels and the Mafia now, have been allowed to infiltrate our entire social structure, even unto our smallest towns,[177] engaging in their extremely profitable nefarious business, without any effective governmental control, and tax-free to boot. As far back as 1989, the Office of National Drug Control Strategy Policy stated:

[H]ere in the United States, in every state, in our cities, in our suburbs, in our rural communities …drugs are available to almost everyone who wants them.[178]

Yet we continue to blindly throw our tax dollars down this black hole called the “War on Drugs”.

Legalization,[179] “the least bad solution”

Like most complex social issues, there is no absolute or perfect answer or solution to the problem. The course of conduct to be followed depends on an objective balancing of many competing interests and factors, with the answer being the least harmful of the several alternatives that may be available. Such is the case with the drug conundrum.

The only realistic alternative to the present policy is to experi­ment with the legalization of at least some of these substances, mariju­ana to begin with. What­ever the moral arguments against legalization, arguments that have recogniza­ble merit, they are in my opinion, overcome by the social and eco­nomic costs that the irrefutable facts have demonstrated the present policy has imposed upon our nation.

The most important component of the moral argument against legalization of drugs seems to me to be the potential harm that a drug may cause the public. In 2007, a report was issued in Great Britain entitled, “Development of a rational scale to assess the harm of drugs of potential misuse.”[180] This study was prepared by the government’s Advisory Council on the Misuse of Drugs at the request of the House of Commons’ Select Committee on Science and Technol­ogy. It was conducted by a committee chaired by Dr. David Nutt, a professor of psychopharmacology at London’s Impe­rial College, together with Dr. Leslie. A. King, of the Forensic Sci­ence Service, William Salisbury, MA, of the Police Foundation, and Prof. Colin Blakemore FRS, of the Medical Re­search Council and the Department of Physiology, Anatomy and Genetics at Oxford University.

Drugs were ranked by two separate groups of experts in order of potential harm by reason of misuse, and evaluated against a nine-category matrix of harm caused, within the general parameters of physical harm, dependence, and social harm.[181]Twenty drugs including the five legal ones (alcohol, tobacco, khat, solvents, andalkyl nitrates), were included in the study,[182] aswell as the usual illegal ones.

The results of the study are not startling but confirm the general knowledge and experience of anyone with some degree of objective expertise in this field.[183]Ranked first and second in terms of harmfulness, were heroin and cocaine with alcohol fifth and tobacco ninth, both of which were ranked as substantially more damaging than marijuana, which was ranked eleventh on the list.[184]To anyone at all familiar with this subject, and as substantiated by the statistics and data in the present article which we need not reproduce, there is nothing new about these conclusions except that they come from knowledgeable experts in their fields of expertise: (1) we know that both heroin and cocaine can be highly addictive, (2) although the annual deaths attributed to heroin and cocaine, caused principally by overdoes are 39,000, as compared to 400,000 deaths caused by tobacco and 75,000 by alcohol, (3) there are no known reported deaths attributed to marijuana overdose. There are, of course, several other reports and studies that confirm the conclusions of the British Advisory report.[185]

At best, it seems anomalous that legalizing the use of marijuana is so persistently rejected, considering that the controlled use of alcohol and tobacco is already an accepted practice in the United States, notwithstanding their highly deleterious health and social costs. If we accept a harm minimization approach, which I believe is the sensible way to proceed, in which we take into account the dangers of each drug, both legal and illegal, in order to determine the correct drug policy for America to follow, it makes little sense to prohibit the use of marijuana when its prejudicial effects on our health are minimal when compared to those unquestionably caused by alcohol and tobacco.

There are various additional factors that support the legalization of marijuana use at present. Marijuana is already semi-legal in 15 US jurisdictions under the label of medicalization, [186]that as previ­ously stated, the Federal government is allowing.[187]There is thus some experience within the United States with decriminalizing marijuana possession, without any substantiated social drawbacks or increases in its use, although this is not a totally reliable observa­tion considering that general use of marijuana is still ille­gal. It is also likely that if there is full legalization of marijuana usage, there will be an increase in its general usage, as happened with alcohol consumption after Prohibition was repealed.[188]This will happen partly due to the fact that people who have not used marijuana because of its illegality will not be so inhibited, and thus there will be a tendency for more people to use it. Furthermore, because once marijuana can be freely cultivated, particularly in the United States, production costs will decrease and supply will in­crease, and thus, there will be a reduction of the retail cost of the product, with a consequential increase in its accessibility to the public, particularly the younger groups.[189]This isan obvious downside to legalization, which will have to be addressed in a similar fashion as has been done with alcohol and tobacco.

As is well known, the legalization or discriminalization of drugs, generally, for personal consumption is already an irreversible trend worldwide.[190]

A comparison of the statistics for marijuana use between the United States, where the prohibitionist model is still generally the law, and the Netherlands, where the decriminalization of personal marijuana use has been in effect since its Opium Act of 1976, is instructive and self–explanatory^.[191]

Consumption	Year	US	Netherlands
Marijuana used during lifetime (12 yrs. or older)	2001	36.9%	17.0%
Marijuana used during past month (12 yrs. or older)	2001	5.4%	3.0%
Rate of incarceration per 100,000 inhabitants	2002	701	100
Rate of homicide per 100,000 inhabitants	Average for 1992-2001	5.56	1.51

Apart from the obvious health benefits to its population resulting from its enlightened drug policies, the Dutch approach is more cost-effective and places its resources where they do the most good: education, prevention and rehabilitation.[192]The Netherlands invests relatively more money on these public health items than the United States, which has twelve times more population and spends a relatively higher part of its drug-related budget on drug-enforcement. The above-chart spells out the results of these divergent strategies.

The three most important benefits to society of a progressive change in our drug strategy, apart from allowing for a scientific, gradual approach to the possibility of general legalization of drug usage in the United States, would be the fact that legalization would permit the government to engage in quality control for the consumer and would allow the government to fund most, if not all, of the drug-related expenses by taxation of producers and consumers, as in the case of the alcohol and tobacco industries.[193] Assuming that drugs would be taxed at a similar rate as alchoholic beverages and tobacco products, it is estimated that tax revenues on the legal production and sale of drugs would annually generate $30.36 billion, were all drugs legalized, and $5.67 if only marijuana was legalized. In addition to this, the public treasuries would receive further amounts from the payment of income taxes generated, which amounts I am presently unable to accurately calculate.

Perhaps the most important benefit, in terms of the mayhem that our present strategy is causing, is that legalization will eliminate the criminal element from the production and distribution of marijuana and its attendant underground acquisition of wealth with its accompanying violence. As far back as 1991, Nobel Laureate Milton Friedman, an advocate of drug legalization, estimated that in the United States alone, as many as 10,000 homicides a year, unrelated to overdosing issues, were plausibly attributed to the drug market wars between the cartels.[194] This, of course, does not even begin to account for the blood baths in Colombia and Mexico for which, at a minimum, we are morally responsible in causing with our massive consumption of illegal drugs.

A fourth point, although difficult to establish with exactitude, are the savings that would result in public funds by legalizing marijuana consumption. This is a valid consideration when submitting this issue to an appropriate balancing test, particularly at a crucial time in our history when our national deficit is sky rocketing beyond control. A recent study by the Cato Institute documents an annual reduction in government spending of about $41.3 billion fom the legalization of all presently illegal drugs, and of approximately $8.7 billion if only marijuana is legalized. Not only will the direct costs of law enforcement and incarcerations be substantially reduced,[195]but also those resources can be shifted to where they are needed, not only in focusing on the drug problem as the public health issue that it is, but also in freeing our law enforcement community to engage in the prevention and apprehension of “normal” criminal activities. Additionally, our over-loaded court systems would be relieved of their enormous drug-related caseloads and allowed to go back to handling a more socially productive caseload of criminal and civil cases. The total annual budgetary impact on federal, state and local government from the legalization of drugs would be approximately $88 billion and $17.4 billion if only marijuana is legalized.[196]

The Government’s response to the undeniable failure of the “War on Drugs” has been stonewalling[197] and more slogans, and of course, the spending of more taxpayer’s money on a mainly useless endeavor. Although there seemed to be ground for optimism for a fresh approach being adopted when the new White House Drug Czar, Gil Karlikwske, signaled his “openness to rethinking the government’s approach to fighting drug use,”[198] there are signs that this may not be a path supported at the highest levels of the Administration.

This is yet another wasted opportunity for there are signs that a change in our present policy is wanted by the public;[199]National support for the legalization of marijuana use has jumped to the highest level in 40 years, with a Gallup poll reporting an increase of from 31% in 2000 to 44% in 2009.[200]In its November, 2010 issue, National Geographic magazine cites a Pew Research Center survey to the effect that three out of four Americans favor legalizing medical marijuana, and confirms the findings of Gallup surveys to the effect that 44% of Americans favor legalization of marijuana. In a recent reversal the American Medical Association has called for review of marijuana as a Schedule I hard drug alongside LSD and PCP.

As stated in The Economist, “[b]y any sensible measure, this 100-year struggle [since the International Opium Commission was established in 1909] has been illiberal, murderous and pointless…Legalization is the least bad policy.”[201] “Least bad” does not, of course, mean good.[202]It means that among the various alternatives available, it will cause the least harm to the greatest number of the people, which is after all, how democracy is supposed to work.

Legalizing marijuana, as a first step, will not solve the drug abuse problems, but “after a century of manifest failures [with the prohibitive model] argues for trying it.”[203]

[1] See closing remarks in Juan R. Torruella, One Judge’s Attempt at a Rational Discussion of the So-Called “War on Drugs”, 6 B. U. Pub. Int. L. J. 1(1996); 14 Yale J. on Reg. 235 (1997); 66 Rev. Jur. U. P. R. 1 (1996).

[2]Judge, U. S. Court of Appeals for the First Circuit. The author wishes to acknowledge the support and encouragment of the Academia Puertorriquena de Jurisprudencia y Legislacion in this undertaking, as well as the help of Margarita Mercado, Dr. Ana Cristina Gomez and Guillermo Rebollo Gil in updating and editing this article.

[3] The original quote, “[w]e have met the enemy and they are ours,” is a message attributed to Commodore Perry after the Battle of Lake Erie during the War of 1812.

[4] See supra note 1.

[5] Torruella, 66 REV. Jur. U. P. R. at 38-39.

[6] To my knowledge the closest undertaking in this regard, has been the “National Criminal Justice Commission Act of 2010”, proposed by Senator Jim Webb on March 26, 2009. S. 714 111^th Cong (as reported to the Senate, May 6th, 2010). The bill would:

“[C]reate a blue-ribbon commission charged with undertaking an 18-month, top-to bottom review of the entire criminal justice system. Its task [would] be to propose concrete, wide ranging reforms designed to responsibly reduce the overall incarceration rate; improve federal and local responses to international and domestic gang violence; restructure our approach to drug policy; improve the treatment of mental illness; improve prison administration; and establish a system for reintegrating ex-offenders.”

Summary, Press Release, March 2009, (emphasis in the original). A companion bill was passed by the House of Representatives on July 27, 2010. Press Release, Jim Webb, U.S. Senator for Virginia, “Webb’s National Criminal Justice Commission Act Wins Approval in House of Representatives” (July 28, 2010).  Senator Webb’s cogent remarks upon the introduction of this bill in the Senate can be found at http://webb.senate.gov/issuesandlegislation/Senator-Webbs-floor-speech-introducing-the-criminal-justice-legislation.cfm.

[7]See generally, European Commission, a report on Global Illicit Drug Markets 1998-2007 24 (Peter Reuter and Franz Trautman eds.) (See Table 2, United Nations and United States estimates of cocaine and opium production 1998-2007) [hereinafter European Commission, Report 1998-2007]. See also, “Failed States and Failed Policies: How to Stop the Drug Wars,” The Economist, March 5, 2009, http://www.economist.com/node/13237193.

[8] United Nations Office on Drugs and Crime, World Drug Report 12; 123 (2010).

[9]United Nations Office on Drugs and Crime, World Drug REPORT 170 (2007) [hereinafter 2007 World Drug Report].

[10] The world population is estimated at 6.86 billion persons. International Program Center, U. S. Census Bureau, at http://www.census.gov/main/www/popclock.html.

[11]Central Intelligency Agency World Factbook Country Pro­files: Budget (2010), http://cia.gov/library/publications/the-worldfactbook/fields/w256.html?countryName-world-fact book/fields/2056.html?countryName. [Hereinafter World Factbook].

[12] See Adam Dunn, Reporter pursues Escobar story in ‘Killing Pablo’, CNN, May 31, 2001, http://articles.cnn.com/201-05-31/entertainment/killing.pablo_1_killing-pablo-colombian-government-pablo-escobar?s=PM:SHOWBIZ.

[13] The profit margin in the markup of the raw materials from production to retail sale ($650/kilogram for cocaine leaf in Colombia to $120,000 for 100 mg. for pure retail cocaine powder in Chicago; and $500/ kilogram for opium in Afghanistan to $135,000 for 100 mg., of pure retail heroin powder in London [circa 2000]) is probably only surpassed by items such as gold, uranium and diamonds. See European Commission, Report 1998-2007, supra note 8, 23 Table 1 (Prices of cocaine and heroine through the distribution system ca. 2000 (per pure kilogram equivalent).  However, it is worth noting that most of the domestic distribution revenues go to the lowest levels of the system to compensate for the higher risks of penal sanctions and violence from competing organizations, although those at the higher echelons make the great individual fortunes generated by the illegal drug trade. Id.

[14]National Drug Intelligence Center, National Drug Threat Assessment 49 (2009).

[15]See Feds net more than $3.5 million in cash smuggling operation, Puerto Rico Daily Sun, Nov. 7, 2009, at 6.

[16]See notes 13 and 14.

[17]United Nations Non-Governmental Liason Service, NGLS Roundup, Countering the World Drug Problem Together, July 1998, at http://www.un-ngls.org/orf/documents/text/roundup/27drugs.tx.

[18]European Commission, Report 1998-2007, supra note 8, at 26, (See Table 2).

[19]Id. The C. I. A. World FactBook estimated 865 metric tons for cocaine and 1,000 metric tons for heroin in 2007.  See note 12.

[20] European Commission, Report 1998-2007, supra note  7, at 13.

[21]The following information was obtained from the CIA World Factbook. See, WORLD Factbook, supra note 11. The CIA’s listing is hardly comprehensive. A brief perusal of the Factbook reveals that practically all countries are somehow involved in some facet of the illegal drug trade, be it producing, acting as a transit point, or money laundering the illicit gains, or any combination of these activities.

[22]See Lorraine Blasor, Drug Czar Chief: Cocaine transit via P.R. down, threat reduced, The San Juan Star, May 27, 1998 (Drug Czar Bary McCaffey, said “the $92 million the federal government has pumped into Puerto Rico to fight drug smuggling, plus an additional $8 million for the Drug Trafficking High Intensity Zone office here, is ‘beginning to pay off’.”).

[23]European Commission Report, supra note 8, at 57.

[24] Id.

[25]United Nations Office on Drugs and Crime, World Drug Report 164 (2009).

[26]Id. at 168; See also, UN Backs Decriminalization in World Drug Report, http://www.huffingtonpost.com/2009/06/24/un-backs-drug-dccr http:///www.huffingtonpost.com/209/06/24/un-backs-drug decriminali_n_220013.html.

[27]Anti-Drug Abuse Act of 1988, 21 U. S. C. §1501 (1994).

[28] Id. §1502 note.

[29] See e. g.,Single Convention on Narcotic Drugs, 1961, as amended by the 1972 Protocol Amending the Single Convention on Narcotic Drugs, March 25, 1972, March 30, 1961, 18 U.S.T. 1407, 520 U.N.T.S. 204; Convention on Psychotropic Substances, 1971, Feb. 21, 1971, 32 U.S.T. 543, 1019 U.N.T.S. 175; United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, December 20, 1988, 1582 U.N.T.S. 165.

[30]By 1998, the United States was a party to 19 maritime drug interdiction agreements. The White House, International Crime Control Strategy (1988), http://www.fas.org/irp/offdocs/iccsv.html. See also George K. Walker, Self-defense, The Law of Armed Conflict and Port Security, 5 S.C. J. Int’l L. & Bus. 347, (2009). (The United States has negotiated over 20 bilateral treaties dealing with drug traffic interdiction. These variously allow boarding, pursuit, entry to investigate, overflight and orders to land aircraft, seaward of the territorial sea of a state party, with western hemisphere countries and States with Western Hemisphere dependencies.)

[31]See e. g., Comprehensive Drug Abuse and Control Act, Public Law No. 91-513 84 Stat. 1236 (1970) (codified in 21 U. S. C.§§801-971).

[32]Alcohol and tobacco were, of course, controlled but not proscribed except for minors.

[33]As a point of historical fact, under the Marijuana Tax Act of 1937, Pub .L. No. 238, 50 Stat.551, ch.553, transfers of marijuana by physicians and dentists to their patients were legal if the doctor or dentist had paid a tax on the marijuana of $1 a year. Id. §2(a). Transfers by a marijuana dealer directly to a patient were also legal if done pursuant to a prescrip­tion by a doctor or dentist who was registered under the Act. Id. §6(b). For a cogent history of drug legislation in the United States, seeMargarita Mercado Echegaray, Drug Prohibition in America: Federal Drug Policy and Its Consequences, 75 Rev. Jur. U.P.R. 1216 (2006).

[34]Alaska (Medical Uses of Marijuana for Persons Suffering from Debilitating Medical Conditions Act, A.S. §§17.37.010-17.37.080 (2005)), Arizona (Drug Medicalization, Prevention and Control Act, A.R.S.§§13-3412(A)(8)-13-3412.01 (2005)), California ( Compassionate Use Act, Cal. Health & Safety Code §11362.5 (2005)), Colorado (Const. Col.  art. XVIII, §14; CSRA §18-18-406.3 (2006)), Hawaii ( Medical Use of Marijuana Act, HRS §329-121-329-128 (2005)),Maine (Maine Medical Marijuana Act, 22MRSA §2383-B(5)(2005)), Massachusetts, Massachusetts Medical Marijuana Act; Michigan, Michigan Medical Marijuana Act, Mich. Comp. Laws §§33.26421-333.26430 (2008); Montana (Montana Medical Marihuana Act, MCA §§50-46-101-50-46-210(2005)), Nevada (Medical Use of Marijuana Act, NRS §§453A.010-453A.810(2005); New Jersey, New Jersey Compassionate Use Medical Marijuana Act, N.J. Stat. Ann. §24:61-1-Pub. L. (2010);New Mexico, Lynn and Erin Compassionate Use Act, N.M. Stat. Ann. §§26-2B-1-26-2B-7; Oregonain  ( Oregon Medical Marijuana Act, O.R.S. §§ 475.300-475.346 (2005)), Rhode Island, The Edward O. Hawkins and Thomas C. Slater Medical Marijuana Act, 2005 R.I. Pub. Laws Ch. 05-442, Vermont, Marijuana Use by Persons with Severe Illness Act, 18 VSA §§ 4472-4474d(2005)), and Washington (Washington Medical Use of Marijuana Act, RCWA§§69.51A.005-69.51A.092(2005), as well as the District of Columbia (Legalization of Marijuana for Medical Treatment Initiative Amendment Act of 2010, D.C. Bill 18-622.

[35]United States Department of Justice, Memorandum for Selected United State Attorneys on Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana, October 19, 2009, http://blogs.usdoj.gov/blog/archives/192.

[36]See Zachary Malinowoski, Growing pains: R.I. marijuana growers, patients double in a year, The Providence Journal, Sept. 17, 2010 at http://www.projo.com/news/content/RI_MARIJUANA_09-17-10_IHJNRAM_V53.2536cc.; Christopher J. Girard, Thousands attend marijuana rally, Boston Sunday Globe, Sept.19, 2010, http://www.boston.com/news/local/massachusetts/articles/2010/09/19/thousands_attend_marijuana_rally/.

[37]The Associated Press, “Mexico: 28,000 killed in drug violence since 2008,” Puerto Rico Daily Sun, Aug. 4, 2010, at 7; E. Eduardo Castillo, Family of hero of drug war in Mexico slain, The Boston Globe, Dec. 23, 2009, at A3 (“Cartel’s message is loud and clear to troops involved.”). In large part, this blood bath in Mexico has been the result of the success of the Drug Enforcement Administration’s successes in squeezing off the Caribbean drug conduit into the United States, and by default, rerouting it from South America into the United States through Mexico. See Keving Hartnett, From Small Corners to Big Carterls, the Drug War’s Unintended Consequences, The Pennsylvania Gazeitte, Nov/Dec 2009, at 9.

[38]See Robert W. Sweet, The “War on Drugs” is Lost, Nat’l Rev., Feb. 12, 1996. The author, a distinguish U.S. District judge in the Southern District of New York, was one of the pioneer voices in denouncing the floundering of our drug policies. See also Kurt Schmoke, The “War on Drugs” Is Lost, Nat’l Rev. Feb. 12, 1996; Nichols D. Kristop, Drugs Won the War, New York Times, June 13, 2009. See also, Steven B. Duke & Albert G. Gross, America’s Longest War: Rethinking Our Tragic Crusade Against Drugs (1993).

[39]Although my present observation is directed at the U.S. scenario alone, this is obviously a tunnel vision of the problem, for we also have a very substantial European market, as well as elsewhere throughout the World. See generally European Commission, Report 1998-2007, supra note 7, at 11-12.

[40] Hartnett, supra note 37. In 2008, 16% of Americans had used cocaine, a rate four times higher than any country in the world. Id. Furthermore, apart from New Zealand, whose inhabitant’s match Americans puff for puff of marijuana at a 42% rate, no other country comes close to us in marihuana usage, not even the liberal Dutch at 20%, or the Italians, where fewer than one in ten has ever used it. Id. See also SAMHSA News Release, National Survey reveals increase in substance use from 2008-2009, Sept. 16 2010, at http://www.samhsa.gov/newsroom/advisaries/1009152021.aspx.

I am again reminded of the riposté of the lawyer in El Salvador, which I refer to in my earlier article on this subject, when he said to me on occasion of my lecturing in his country during the mid-1980’s, and in answer to my statement that the United States was providing his country with all kinds of material help in fighting the “War on Drugs”:

Excuse me your Honor that is not the help that we are in need of. What we need is for your country to stop consuming these drugs. If your people were not buying drugs, we would not be growing and selling them. We would rather sell you coffee, or oranges, or bananas, if you would only stop buying and consuming drugs.

Torruella, supra note 1, at 5.

[41]European Commision, Report 1998-2007, supra note 7, at 13-14.

[42]Bureau of Census, U.S. Dept of Commerce, Statistical Ab­stract of the United States, 1995, (115^th ed. 1995) [hereinafter-Statistical Abstract]; Steven B. Duke, Drug Prohibition: An Unna­tural Disaster, 27 Conn. L.  Rev. 571, 574 (1995).

[43]Drugs & Crime Data Center & Clearinghouse, Fact Sheet: Drug Data Summary 5 (June 1995).

[44] Id. See also Schmoke, supra note 39 at 40- 41.

[45]See Andre Gaud, War on Drug Rages On, News-Press Now.com, http://www.newspressnow.com/news/2010/aug/08/war-drugs/. A recent study released by the National Center on Addiction and Substance Abuse at Columbia University found that federal, state and local governments spent $467 billion in 2005 on sub­stance abuse and addiction. The National Center on Addiction and Substance Abuse at Columbia University, Shoveling Up II: The Impact of Substance Abuse on Federal, State and Local Budgets 1 (2005) [hereinafter, Shoveling Up II].

[46]Ethean A. Nadelman, Drug Prohibition in the United States: Costs Consequences, and Alternatives, 245 Sci. 939, 940 (1989). Recent estimates show that federal, state and local governments spend $44.1 billion annually enforcing drug prohibitions.  Nicholas D. Kristof, Drugs won the War, The New York Times, June 13, 2009. A recent study by the Cato Institute places this figure at $25.7 billion. See Jeffrey A. Miron and Katherine Waldock, The Budgetary Impact of Ending Drug Prohibbition, Cato Institute, Wash.,D.C. (2010), at 5 (hereinafter “The Budgetary Impact”). In 2005, state governments spent $135.8 billion on substance abuse and addiction. Shoveling Up II, supra note 42 at 2.  It is worth mentioning that between 1981 and 1986 state and local drug arrests grew by 59%,  see Bureau of Justice Statistics, U.S. Dept. of Justice, Drug and Crime Facts, 8 (1991) (hereinafter “Facts”), and thereafter increased an additional 23%  from 1986 to 1991.

[47] H.R. Rep. No. 96-323 at 4 (1974).

[48] The Sentencing Project: Research and Advocacy for Reform, Facts About Prisons and Prison­ers, at http://www.sentencingproyect.org/doc/publications/publications-inc_factsAboutPrisons_Jul2010.pdf [hereinafter Facts About Pris­ons and Prisoners].

[49] The New York, Public Library Desk Reference Book 887; 900 (4th ed. 2002). China’s population is 1,261 billion); United States’ population, 275.5 million.

[50]Facts About Prisons and Prisoners, supra note 48. In 1980, only 7% of those admitted to state prisons were convicted of drug-related offenses, while by 1990 this figure had increased to 32%. Bureau of Statistics, Prisoners in 1992 (1993) at 10.

[51]Michael Torney, Race and the “War on Drugs”, 1994 U.Chi. Legal F. 25, 26, 27.

[52]Federal Bureau of Prisons, U.S. Dept. of Justice, a Judicial Guide to the Federal Bureau of Prisons 5 (1995) [hereinafter “Judicial Guide”].

[53] Id.

[54]The PEW Center on the States, ONE in 100: Behind Bars in America 2008 3 (2008).

[55]Marc Mauer & Ryan S. King, The Sentencing Project, A 25-Year Quag­mire: The “War on Drugs” and Its Impact on American Society 2 (2007), availa­ble at http://www.sentencingproject.org/doc /publications/dp_25yearquagmire.pdf.

[56]U.S.Department of Justice, Bureau of Justice Statistics Bulletin, Prisoners in 2006 (2007).

[57]Federal Bureau of Investigations, Crime in the United States 2004, Uniform Crime reports, persons arrested, http://www.fbi.gov/ucr/cius_04/persons_arrested/index.html.

[58] Joan Beck, Smokers, Chill out, Think of Your Poor Hearts, News Trib., April 18, 1994, at A-6.

[59] U. S. Drug Abuse Level Unchanged, Report Says, 109 Pub. Health Rep. 839 (1994), available at LEXIS, New Library, ASAPII File.

[60]Drug & Crime Data Center & Clearinghouse, Fact Sheet: Drug use Trends 1 (1996).

[61] The best available data is the 2009 National Survey on Drug Use and Health.   See , U. S. Department of Health and Human Services, Substance abuse and mental health services administration, office of applied studies, results from the 2009 National Survey on Druge use and Health: Volume 1, Summary of National Findings (2009) [hereinafter 2009 National Survey on Drug Use and Health].

[62] Id. at 4. This figure is for Americans 12 years or older, which is 27.7% of the population. Id. Cigarette smoking among young adults 18 to 25 decreased significantly between 2002 to 2009, but was still the highest of all age groups. Id. There was also a moderate decline in cigarette smoking during that period among youths aged 12 to 17. Id.

[63] Id. at 3. This figure is for persons over the age of 12, and is the equivalent of over half of the U. S. population over 12 years old.

[64] Id. at 1. This figure is for persons over the age of 12. Approximately 22.2 million Americans over the age of 12 reported having had a dependency on drugs or abuse in their use, which represents about 8.9% of the U. S. population, which is almost twice the reported figure of 5% for the world as a whole. Id. at 2.

[65] Id. at 4.

[66]Ali H. Mokdad, et al. Actual Causes of Death in the United States, 2000, J. Am. Med. ASS’n No. 1238-45 (2004).

[67]Smoking-Attributable Mortality and Years of Potential Life Lost_United States. 1999, 40 Mortality Wkly. Rep. 62 (1991), available at LEXIS, News Library, ASAPII, File. To these should be added about 40,000 nonsmokers who died of inhalation from passive smoke. Death Toll from Smoking Worsening, N.Y. Times, Feb.1, 1991, at A14.

[68] Mokdad, supra note 66. To this must be added an estimated 50,000 nonsmoking adults who died from second hand smoke. American Lung Association, Health effects, http://www.lungusa.org/stop-smoking/about-smoking/health-effects/.

[69] State Cigarette Excise Tax Rates & Rankings, http://www.tobaccofreekinds.org/research/factsheets/pdf/0097.pdf

[70] American Cancer Society, Study: 8.6 Million Americans Sick with Tobacco-related Illnesses: few Quitters Get the Help Needed to Succeed, http://www5.cancer.org/docroot/NWS/content/NWS_2_1x_Study_86_Million_Ameri­cans_Sick_With_Tobaccorelated_Illnesses.asppNWS_21X_sTUDY_86_Million_Americans_Sick_With_Tobaccore­lated_Illness.asp

[71] Eric Lindblom, Campaign for Tobacco-Free Kids, Toll of Tobacco in the United States of America, http://www.tobaccofreekids.org/research/factsheets/pdf/0072.pdf.

[72] Id.

[73]James A. Inciardi, Against Legalization of Drugs, in Arnold S. Trebach & James A., Legalize It? Debating American Drug Policy, 139, 160 (1994).

[74]In a 2008 study, the National Highway Traffic Safety Administration (NHSTA) estimates that 8% of all drivers in the United States, or 17 million people, have driven at least once over the course of a year, even though they though they were drunk.  See Associated Press, U.S. estimates millions drive drunk, The Boston Globe, Aug. 26, 2010, at A1.

[75]Inciardi, supra note at 160. Puerto Rico is among the ten highest U.S. jurisdictions in traffic fatalities due to the consumption of alcohol. Justice: Youth alcohol consump­tion costs P.R. hundreds of millions a year, Puerto Rico Daily Sun, October 28, 2009, at 6 (youth alcohol consumption is costing the local economy between $250million and $1 billion a year). Of the 430 people who died in traffic accidents in P.R. in 2007, 40% of those killed were 29 years old or younger. Id.

[76] Substance Abuse and Mental Health Services Administration, U.S. De­partment of Health and Human Services, National Expenditures for Men­tal Health Services and Substance Abuse Treatment 1991-2001, Ch. 5 (2001), http://www.samhsa.gov/spendingestimates/chapter5.aspx [hereinafter SAM­SHA, National Expenditures].

[77]Inciardi, supra note 73, at 160.

[78]SAMSHA, National Expenditures, supra note 76. In 1994, the federal government alone spent $12 billion on health care and disability related to alcohol abuse. Bureau of Census, U.S. Dep’t of Commerce, Statistical Abstract of the United States, 1995, (115th ed. 1995) [hereinafter Statistical Abstract]. Of a total of $66 billion spent an­nually by the federal government on health care and disability costs associated with alcohol, tobacco, and illegal drug use, 18% ($11.8 billion) were destined for the alco­hol programs. 16% ($10.56 billion) for drug abuse agendas and 66% ($ 43.56 billion) for tobacco related care and disability programs. Id. A study by the National Center on Addiction and Substance Abuse at Columbia University found that in 2005 govern­ment spending related to smoking, alcohol abuse and illegal drugs reached $468 bil­lion, accounting for one-tenth of combined federal, state and local expenditures for all purposes, of which expenditures only 2% went to prevention, treatment and addiction. Eril Eckholm, Governments’ Drug-Abuse Costs hit $468 Billion, Study Says, New York Times, May 28, 2009, at 1 http://www.nytimes.com/2009/05/

[79] See 2009 National Survey on Drug Use and Health, supra note, 61 at 3.

[80] Centers for Disease Control and Prevention, Alcohol-Attributable Deaths and Years of Potential Life Lost, United States, 2001 (2004), http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5337a2.htm.

[81] Id.

[82] Id.  See   also, Mokdad, supra note 66.

[83]Alcohol Alert, 2008 Drunk Driving Statistics, http://www.alcoholalert.com/drunk-driving-statistics.html.

[84] The George Washington University Medical Center, The Alcohol Cost Calculator, Treatment of Alcohol Medical Consequences/related Insurance Administration Costs, December 2007, http://www.alcoholcostcalculator.org/business/about/?page=note.

[85]This term includes marihuana, cocaine, heroin, amphetamine, hallucinogens, inhalants and nonmedical use of sedatives, tranquilizers, stimulants or analgesics.

[86]Office of National Drug Control Strategy, Executive Office of the President, The National Drug Control Strategy: 1996, at 77, (Figure. 5-1).

[87] Drug & Crime Data Center & Clearinghouse, supra note 61, at 1 (Table 11) (past thirty days use); Id. at 2 (Figure 2),  5 (Figure 1).

[88] Id. 1 (Table 11) (past thirty-day use). Marihuana use went from 18.5% in 1974 for those in ages 12-17, to 10.1% by 1993, after a peak of 20 % during the 1977-82 period. Id. at 2 (Figure 2), 2 (Figure 5). For ages 18-25, this figure decreased from 34.2% in 1974 to 22.9 % in 1993, with peak years of 40% in the 1979-82 period. Id. In the over 26 age group there was an increase from 3.8% in 1974 to 6.3% in 1993, with increases in 1982 and 1985 up to 10%. Id. Cocaine usage declined from 2.7% for the 12-17 age groups in 1974 to 0/8% in 1993, after a peak in the 1979-82 period of over 4%. Id. at 2 (Figure 1), 5 (Figure 1).  For ages 18-25 there was an overall decline of from 8.1% in 1974 to 5.0% in 1993 to a peak of close to 20% in the 1979-82 period. Id. The over 26-age group generally increased from 0.6% in 1974 to 1.9 % in 1993. Reaching a peak of around 4% in the 1982-85 period. Id. Heroin usage generally declined in its usage by all age groups in the period from 1974 to 1993, with the 12 to 17 year group going from 1.0% in 1974 to only .2% in 1993, Id., at 142 (Table 2), those in the 18-25 years bracket going from 4.5% to 0.7% in the same period, and those 26 years and older going from 0.5% to a base too small to be statistically significant. Id.

[89]See 2009 National Survey on Drug Use and Health supra note, 61 at 13.  By comparison, Puerto Rico has approximately 60,000 persons who are addicted to illegal drugs, which is approximately 2.34% of its population. ASSMCA: “Trastornos de Sustancias y Uso de Servicios: Encuesta de Hogares, 2008. It is estimated that they consume approxi­mately $3 million worth of illegal drugs each day, Id. Puerto Rico has the fourth highest rate in both drug arrests and incarceration in the world.   See World Bank, 2000.

[90] Id. at 73.

[91] Press Release, Office of National Drug Control Policy, New Study Reveals Scope of Drug and Crime Connection: As Many as 87% of Peo­ple Arrested for Any Crime Test Positive for Drug Use, http://www.ondcp.gov/news/press09/052809.html; Marijuana was the most commonly detected drug, with cocaine second and heroin a distant third. Id.

[92] Mokdad, supra note 66. That year there were 435,000 deaths due to tobacco, 400,000 deaths attributable to poor diet and inactivity, and 85,000 fatalities due to alcohol. According to investigators for the Center for Prevention and Control of Dis­ease, in 2006 the deaths attributed to the consumption of drugs reached 39,000 per­sons in the United States. Phillip Smith, Overdose and Other Drug-related Deaths Now Closing In on Car Wrecks as Leading Accidental Killer in US, StoptheDrug­War.org, September 30, 2009, http://stopthedrugwar.org/speakeasy/2009/sep/30/overdose_and_other_drugrelated_d.   They also claim that the mortality rate for analgesic opiates, such as methadon, seda­tives, and medicines taken to ease pain, such as Vicodin, caused seven times more fatalities in 2006 than in 1999. Margaret Warner, Li Hui Chen, M.S., Ph.D. & Diane M. Makic, Dr. P.H., Increase in fatal Poisonings Involving Opioid Analgesics in the United States, 1999-2006 (2009), http://www.cdc.gov/nchs/data/databriefs/db22.pdf.

[93] 2009 National Survey on Drug Use and Health supra note 61 at 16. A recent phenomena was revealed by a government survey which shows an increase in the marihuana users in the age group 50-59 of from 5.1% in 2002 to almost 10% in 2007. Steve Hendrix, Baby Boomers find growing acceptance of marijuana use, Boston Sunday Globe, November 22, 2009, at A9. See also, Jennifer Mann, Baby boomers going to pot, Patriot Ledger,August 23, 2010, at 1.

[94] According to Mahmoud El Sohly of the University of Mississippi’s Potency Project, the average THC content of marihuana samples has gone from an average of 4% in 1983, to 4.8% in 2003, to 7.3% in 2007, to 10.1% in 2007. See, CNNhealth.com, at http://www.cnn.com/2009/HEALTGH/05/14/marijuana.potency/index.html (last visited 5/14/2009).

[95]See Katherine Bishop, New Front in Marijuana War: Business Records, The New York Times, May 24, 1991, at 44.

[96] 2009 National Survey on Drug Use and Health supra note 61.

[97] Id.

[98] Id.

[99] This is a central nervous system stimulant, categorized by the U.S. Food and Drug Administration as a Schedule II amphetamine, which means is has a high potential for abuse and for psychological or physical dependence. Methamphetamine Use and Risk for HIV/Aids. Center for Disease Control and Prevention, January 2007, at http://www.cdc.gov/hiv/resources/factsheets/meth.htm.  Met, as it is popu­larly known, is smoked, injected, snorted, swallowed, or injected into the anus. Id.

[100]Also included are LSD, and Ecstacy(MDMA). A pound of methampheta­mine worth $20-30,000 can easily be produced with $500 worth of chemicals, laboratory glassware and minimal knowledge of chemistry. Howard Abadinsky, Drugs: An Introduction 127 (2004).  See also, Smoke shop rebufs police request to pull hallucino­genic incense, Patriot Ledger, Sept. 11-12, 2010, at 1.

[101] Id. Although most of the met consumed in the U.S. is manufactured outside the United States, roughly one third of U.S. consumption is from domestic sources. See Interagebncy Working Group on Syn­thetic Drugs, “Interim Report 2 (2005), available at http://www.nejr.gov/ondcppubs/public-ations/pdf/intrim-rpt.pdf.

[102] See Office of National Drug Control Policy, Fact Sheet, 2008 ADAM II Report, WhiteHouseDrugPolicy. gov, at 4

[103] See supra note, 101, at 2.

[104] Id.

[105] Id.

[106] Id.

[107] Id.

[108] 2009 National Survey on Drug Use and Health supra note, 62 at 1.

[109] Id. at 2.

[110]See generally, Paul Finkelman, The Second Casualty of War: Civil Liberties and the “War on Drugs”, 66 S. Cal L. Rev. 1389 (May, 1993); Randy E. Barnett, Bas Trip: Drug Prohibition and The Weaknesses of Public Policy,”103 Yale L .J 2593 (June, 1994)(Book review of “America’s Longest War: Rethinking Our Tragic Crusade Against Drugs” by Steven B. Duke & Albert Gross); Randy E. Barnett, The Harmful Side Effects of Drug Prohibition“, 2009 Utah L.Rev. 11 (2009); Robert W. Sweet, Will Money Talk: The Case For Comprehensive Cost-Benefit Analysis of the “War on Drugs”, 20 Stan. L. & Pol’y Rev. 229 (2009); Jaime Fellner, Race Drugs, and Law Enforcement In The United States, 20 Stan. L. & Pol’y Rev. 257 (2009); Gabriel J. Chin, Race, The “War on Drugs”, and The Collateral Consequences Of Criminal Conviction,” 6 J. Gender Race & Just. 253 (Fall 2004).

[111] See Eugene Kontorovich, Beyond the Article I Horizon: Congress’s Enumerated Powers and Universal Jurisdiction Over Drug Crimes, 93 Minn. L. Rev. 1191 (2009).

[112] California v. Acevedo, 111 S.Ct. 1982, 2002 (1991) (Stevens, dissenting)

[113] Id. In Gonzalez v. Raich, 545 U.S. 1 (2005), the provisions of the Controlled Substances Act criminalizing the intrastate growing, possession, and use of marijuana for medical purposes was upheld against a challenge under the Interstate Commerce clause.

[114] A term first used by Judge James Lawrence King in United States v. Miranda, 442 F.Supp.786, 795 (S.D. Fla. 1977).

[115] “The impairment of individual liberties cannot be the means of making a point, that symbolism, even symbolism for so worthy a cause as abolition of unlawful drugs, cannot validate an otherwise unreasonable search.” National Treasury Employees Union v. Von Raah, 489 U.S. 687 (1989) (Scalia, J., dissenting); “[T] here is no drug exception to the Constitution, any more than there is a communism exception or an exception for other real or imagined sources of domestic unrest.” Skinner v. Ry. Labor Execs. Ass’n, 489 U.S. 602, 641 (1989) (Marshall, J., dissenting).

[116]See Steven Wisotsky, Crackdown: The Emerging “Drug Exception” to the Bill of Rights, 38 Hastings L. J. 889, (1987).

[117] “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”  U.S. Const. amend IV.

[118] Silas J. Wasserstrom, The Incredibly Shrinking Fourth Amendment, 21 Am.Crim. L. Rev. 257 (1984); see also, Stephen Saltzburg, Another Victim of Illegal Narcotics: The Fourth Amendment, 48 U. Pitt. L. Rev. 1 (1986). See United States v. Pineda-Moreno, 2010 WL 3169573 (C.A. 9-2010- Ore.)(Kazenski, C.J. dissenting from denial of en banc) (unwarranted entry into curtilage to attach GPS device to car); see also, Dugold McConnell, Court agents secretly put GPS tracker on cars, CNN Justice, Aug. 27, 2010 http://www.com/2010/CRIME/08/23oregon.gps.surveillance/iden.ntml?hpt=71

[119]Steve Wisotsky, Breaking the Impasse in the “War on Drugs”, 118 (1986).  See also Justice Brennan’s dissent in Riley, 488 U.S. at 466 (Brennan, J. dissenting).

[120] California v. Ciraolo, 474 U.S. 207 (1986) (the information used as basis for search warrant received through overflight not a search despite the fact that the marihuana observed was growing inside the curtilage, which was surrounded by six foot and a ten foot high fences which blocked the view from the street); Florida v. Riley, 488 U.S. 445 (1989) ( same, in helicopter overflight with use of telephoto lense in camera to photograph through open skylight in greenhouse).

[121] Katz v. United States, 389 U.S.347 (1947).  See Harmelin v. Michigan, 111 S. Ct. 2680 (1991) (search expanded beyond weapons to drugs, for which defendant, a first time offender, was sentenced to life in prison).

[122]Terry v. Ohio, 393 U.S. 1 (1968) (a brief stop for questioning and a pat-down for weapons on a public street, based on a reasonable fear of imminent violence, is permitted without a warrant). Cf. United States v, Fornia-Castillo, 408 F. 3d 52, 64 (1^st Cir. 2005.) (interrogation of defendant by police with drawn weapons and while Defendant was handcuffed does not convert Terry stop into a de facto arrest and is not coercive).

[123] United States v. León, 468 U.S. 897 (1984).

[124] See  Illinois v. Gates, 462 U.S. 213, 230 (1983).

[125] United States v. Johnson, 64 F. 3d 1120, 1125 (8^th Cir. 1995).

[126] United States v. Radka, 904 F. 2d 357, 361 (6^th Cir. 1990). (emphasis supplied).

[127] United States v. Sokolow, 490 U.S. 1 (1989).

[128]See Sheryl McCarthy, Off Target Targets of Drug War, N.Y. Newsday, Oct. 22, 1990, at 6.

[129] Sokolow, 490 U.S. at 17 (Marshall, J., dissenting).

[130]Joseph F. Sullivan, New Jersey Police Are Accused of Minority Arrests Campaign, N.Y. Times, Feb. 19, 1990, at B3.; Frances Ann Burns, Officials Drop Off Panel on Alleged Harassment of Black Drivers, United Press Int’l., Jan16, 1990, available at Lexis, Nexis Library, UPI File.

[131] Susan Beck, et. al. The Cocaine War in America’s Fruitbowl, Am. Law., Mar. 1990, at 82,83.(Hispanics in Spokane targeted);

[132] Victor Merina, Joe Morgan’s Suit Protests Drug Profile, L.A. Times, Aug. 7, 1990, at B1.

[133] See McCarthy, supra note 128.

[134] See Florida v. Johnson, 561 So. 2d 1139 (Fla. 1990); United States v. Miller, 821 F.2d 546, 550 (11^th Cir. 1987) (“common sense suggests” that innocent travelers will be harassed by profiles); United States v. Smith, 799 F. 2d 704 (11^th Cir. 1986); United States v. Montilla, 733 F.Supp. 579, 581, 583 (W. D. N.Y. 1990) (decision to stop the two defendants “was based upon” their “nervous reactions, the use of the express bus from New York City [to Buffalo], and their pace through the terminal”, and the fact that the two defendants, a man and a woman, were carrying dufflebags, talking to each other in a “confidential tone” and they “turned abruptly away” from one of the arresting agents.).

[135] The Fifth Amendment provides, in relevant part, that no person shall be “be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” U.S. Const. amend V.

[136] The Sixth Amendment provides, in relevant part: “In all criminal prosecutions, the accused shall enjoy the right…to have the Assistance of Counsel for his defence.” U.S. Const. amend VI.

[137] See 18 U.S.C. §1963(c) (1982); 21 U.S.C. §853 (c) (Supp.IV 1985), and 21 U.S.C. §853 (Supp.V 1988), which are all part of the Comprehensive Crime Control Act of 1984, Pub. L. 98 473, 98 Stat. 1837, 2170.

[138] Caplin & Drysdale v. United States, 491 U.S. 637 (1989).

[139] United States v. Monsanto, 491 U.S. 600 (1989).

[140] See Kevin B. Zeese, Supreme Court Upholds Forfeiture of Legal Fees, 2 Drug L. Rep 109 (1989); Melinda Hardy, Sixth Amendment-Applicability of Right to Counsel of Choice to Forfeiture of Attorney Fees, 80 J. Crim. L. & Criminology 1154 (1990); Roderick D. Vereen, Attorneys’s Rights to Fees Under the Comprehensive Forfeiture Act of 1984: The ‘Bona Fide Purchaser, 16 S.U.L.Rev. 407 (1989); John Dombrink et. al, Fighting For Fees-Drug Trafficking and the Forfeiture of Attorney’s Fees, 18 J. Drug Issues 421 (1988); Danton Asher Berube, Drug Proceeds Forfeiture and the Right to Counsel of Choice, 43 Vand. L. Rev. 1377 (1990); Joe Margulies, Resource Deprivation and the Right to Counsel, 80 J.Cim. L. & Criminology 673 (1989).

[141] In re Grand Jury Subpoena, 906 F.2d 1485, 1498 (10^th Cir. 1990).

[142] United States v. Saccoccia, 898 F.Supp 53, 63 (R.I. 1995).

[143] Caplin & Drysdale, 491 U.S. at 650-51 (Blackmun, J., dissenting).

[144] Id. at 640 n.6 (1989) (Blackmun, J., dissenting).

[145] These are problems that raise equal protection issues under both the Fifth (federal government) and Fourteenth (state action) Amendments. David Sklansky, Cocaine, Race, and Equal Protection, 47 Stan. L. Rev 1283 (1995). However, the courts have not been receptive to equal protection challenges because the typical drug-related statute is race neutral on its face, and disparate impact, challenges based on discriminatory intent are difficult to prove in this area. See e.g. United States v. Watts, 553 F.3d 603 (8^th Cir. 2009); United States v. Ayala, 290 Fed. App. 366, 367-89 (1^st Cir. 2008); cf., McCleskey v. Kemp, 481 U.S. 279, 298 (1987) (“A facially neutral statute receives heightened scrutiny only if it was enacted or maintained…because of an anticipated racially discriminatory effect.”). In 2006, 48.2 % of the prison populations were blacks, versus 12.7 % of blacks in the general population.

[146] U. S. Census Bureau, Statistical Abstract of the United States, tbl. 6 (2008).

[147]See generally, Jaime Fellner, Race, Drugs, and Law Enforcement in the United States, 20 Stan.L. & Pol’y Rev. 247 (2009); see also, Katherine Beckett, Kris Nyrop, & Lori Pfingst, Race, Drugs, and Policing : Understanding Disparities in Drug Delivery Arrests, 44 Criminology1, 105 (2006); Katherine Beckett, Race and Drug Law Enforcement in Seattle, Defender Ass’n’s Racial Disparity Project, (2004),” available at http://www.defender.org/files/Race%20and%20Drug%20Law%20Enforcement%20in%Seattle%20%282004%29.pdf. For example the later study, conducted in Seattle, revealed that although 70 % of its population is white, 64.8% of those arrested for drug-related crimes were black, a result that is driven by the fact that the police’s emphasis is on crack cocaine enforcement, which predominates in the black community. Id. at 110. It was estimated that only one third of the city’s drug transactions involved crack cocaine, as compared to powder cocaine, estimated at 22%. However, transactions involving powder cocaine accounted for only 3.83% arrests, methamphetamine with 10.7% of the transactions and only 1.1% arrests, and heroin at 33% of the illegal drug sales but 16.4 % arrests record, most of these involving white offenders, while 79 % of those arrested for crack cocaine were black. Id. at 118.

[148] Id. at 20-21.

[149] International Convention on Elimination of All Forms of Racial Discrimination (ICERD), G.A. Res.20/21o6 Annex, U.N. GAOR Supp. No. at 47, U.N. Doc. A/6014 (Dec. 21, 1965), 660 U.N.T.S. 195, ratified by the United States November 20, 1994

[150] U.S. Const. art. VI, cl. 2 (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”)

[151] Kenneth B. Nunn, Crime and the Pool of Surplus Criminality, Or Why the ‘War on Drugs’ Was a ‘War on Blacks,’ 6 J. Gender, Race & Justice 381,390 (2002) (“In the minds of the criminal justice system’s managers, planners, and workers, drugs are frequently associated with African-American citizens and their communities. The criminal justice system shapes its policies and practices according to this percep­tion.”)

[152]All forms of cocaine (e.g., powder, freebase, crack) are powerful stimulants. Powder cocaine is the most commonly used form, and is usually snorted, injected, or ingested. Crack cocaine, is made by dissolving powder cocaine in a solution of sodium bicarbo­nate and water, is smoked. Crack cocaine is potentially more addictive to the typical user, and produces quicker onset of , shorter-lasting, more intense effects than snort­ing powder cocaine, making it more likely that the user will administer the drug more frequently and develop an addiction. U.S. Sent’g Comm’n. Report to the Congress: Cocaine and Federal Sentencing Policy 19 (2002) [hereinafter Sent. Comm.Rep. (2002)], available at http://www.ussc.gov/r_congress/02crack/2002crackrpt.pdf http://www.ussc.gov/r_congress/02crockrpt.pdf.. Crack can be sold in single dose “rocks”, which makes it more accessible to lower income people, while powder co­caine is sold in larger, more expensive quantities and is thus more commonly used among middle classes and professionals. In 2006, 44.4% of all federal cases involved cocaine (crack and powder).

[153]And establishing the sentencing straight jacket known as the “Sentencing Guidelines” pursuant to the Sentencing Reform Act of 1984, Pub.L. No. 98-473, tit. II, ch. II, 98 Stat.1987 (effective Nov. 1, 1987). See José Cabranes, To Fear Judging No More: Recommendations for the Federal Sentencing Commission, 11 Fed. Sent. R. 187 (1999); and Fear of Judging: Sentencing Guidelines in the Federal Courts (1998).

[154] Marc Mauer, The Sentencing Project: Race to INCARCERATE (1995).

[155] In 2006, 44.4% of all federal drug cases involved cocaine. 2006 Sourcebook, at Fig. K

[156]Nat’l Inst. on Drug Abuse Among Racial/Ethnic Minorities 13-14 (1995), available at: http://archives.durgabuse.gov/pdf/minorities03.pdf.

[157]SAMHSA, 2006 National Drug Survey on Use and Abuse on Drug and Health: National Findings, Table G.1 (2007) [hereinafter 2006 National Survey] available at http://www.oas.samhsa.gov/NSDUH/2k6NSDUH/AppG.htm.

[158] Sent. Comm. Rep. (2002) at 35.

[159] 2006 National Survey, at Tables. 1.34 A &  B.

[160] Howard N. Snyder & Melissa Sickmund, Juvenile Offenders and Victims: 2006 National Report (2006). (U.S. Dept. of Justice, Office of Juvenile Justice & Delinquency Prevention).

[161] 51.5 % of blacks in the United States live in metropolitan areas, as compared to 21.1 % for whites. U.S. Census, The Black Population in the United States: March 2002, 2 Figure 2 (2003), available at http://www.census.gov/prod/2003pubs/p20-541.pdf. Cites, of course, have more law enforcement resources per capita, and higher arrests rates, which increases the likelihood of arrests for drug offending behavior. In 2007, 77% of drug arrests occurred in cities.   See FBI, Crime in the United States 2007, Arrest by Race, Tables 43 and 47 (2008), available at http://www.fbi.gov/ucr/cius2007/data/table_43.htmland _47.html.  This emphasis on urban drug enforcement is reflected in the fact that although urban blacks represent only 6% of the national population, they constituted 29.8% of all those arrested for drugs in the United States in 2007.

[162] See Beckett, Drug Enforcement in Seattle, supra note 148.

[163] Pub. L. No. 99-570, 21 U.S.C. § 960 (1996).

[164] Pub. L. No. 100-690, §§ 1002-9310, 102 Stat. 4312 (1988).

[165] U.S. Sent. Comm., 2006 Sourcebook of Federal Sentencing Statistics, (2006 Sourcebook) Figure  J (2006), available at

http://www.ussc.gov/ANNRPT/2006/figj.pdf.

[166] 21 U.S.C. § 841(b)(1)(A).

[167] U.S. Sent. Comm., 2006 Sourcebook of Federal Sentencing Statistics, (2006 Sourcebook) Figure J (2006), available at http://www.ussc.gov/ANNRPT/2006/figj.pdf.

[168]U.S.Census Bureau, The Black Population: 2000 (August 2001), http://www.census.gov/prod/2001pubs/c2kbr01-5.pdf.

[169]U.S.Census Bureau, The White Population: 2000, (August 2001), http://www.census.gov/prod/2001pubs/c2kbr01-4.pdf.

[170] See Human Rights Watch, Targeting Blacks,”at 16

[171]See Bureau of Justice Statistics, Federal Statistics Program, at http://fjrc.urban.org.

[172] Pub.L. No. 111-220, 124 Stat. 2372 (2010).

[173] United States v. Booker, 543 U.S. 220 (2000).

[174] United States v. Kimborough, 128 S.Ct. 558 (2007).

[175]Matthew Lee, Acepta el vicio “insaciable’ de E.E.U.U, El Nuevo Día, March 26, 2009, at 48 (Secretary of State Hillary Clinton, states in Mexico,”Our [e.g.U.S.’s] insatiable demand for illegal drugs feeds drug trafficking…Clearly, what we have been doing does not work…”).

[176] Gary Fields, Whitehouse Czar Calls for End to ““War on Drugs””, August 24, 2009, http://online.wsj.com/article/58124225891527617397.html.  David Dimston is a well-known Texas marketing executive

[177] Constance Linder, Abington  arrest nets $1m in marijuana, Boston Globe, Aug. 18 2010, at B5. The population of Abington, Massachusetts is approximately16, 582 (2002).

[178] Office of the National Drug Control Strategy Policy, Nat’l. Drug Control Strategy (1989) at 2.

[179] It is important to understand the differences between the terms “legalization”, medicalization” and decriminalization”. By “legalization” is meant removing all criminal sanctions from the production, sale, distribution or possesion of a drug. By “medicalization” is meant the authorized production, sale and use by individuals upon prescription by medical practitioners, Under a “decriminalization” regime possession of a drug for personal use is allowed, either formally by law or informally in that possession for personal use is not prosecuted by the authorities.

[180] See 369 The Lancet 1047 (2007). I would not be so pretentious as to think that my suggestions from 1996 somehow crossed the Gulf Stream, but I am happy to   See   that more knowledgeable persons reached a similar approach as I did, even if 3,000 miles distant. I cannot say my views have experienced equivalent success in this country.

[181] Id. at 1051.

[182] Id.

[183] In fact, the conclusions regarding marijuana by this 2007 study are not greatly different from the seven-volume (3,281 page) report of Indian Hemp Commission of 1894,  also commissioned the British Parliament, in which the physical, mental and moral effects of marijuana were inventoried with the conclusions being that: (1) mod­erate use of cannabis drugs had no appreciable effects on the body, (2) moderate use of cannabis had no adverse effects on the brain, and (3) moderate use of cannabis had no adverse effects on morality.  See Report of the Indian Hemp Drugs Commission, 1893-1894), 7 vols. Government Central Printing Office, Simla, India (1894). A summary of this report by Dr. H. Mikuriya, can be found in an article entitled, Physi­cal, Mental, and Moral Effects of Marijuana: The Indian Hemp Drugs Commission Report, http://www.druglibrary.org/schaffer/library/effects.htm.

[184] Id. See also, Mark Pothier, You Can’t Handle The Truth, Boston Sunday Globe, Dec. 13. 2009, at K1-2.

[185] See Phillip J. Hilts, Is Nicotine Addictive? It Depends on Whose Criteria You Use, The N.Y. Times, Aug. 2, 1994, aat C3, available at http://querywww.nytimes.com/gst/fullpage.html?res=9FOOE6DA1531F931A355BCOA962858260&sq=1994/08/02/science/is+nicoyine+-nicotine-addictive. (-it-depends-on-whose-criteria-you-use.html.(comparing the addictive qualities of nicotine, heroin, cocaine, alcohol, caffeine, and marijuana, in terms of dependence, withdrawal, tolerance, reinforcement, dependence and intoxication, while alcohol, nicotine, heroin are at a higher end than marijuana).

[186] See  Id. at N.30.

[187]Cf., Jesse McKineley, Push to Legalize Marijuana Gains Ground in California, The New York Times, October 28, 2009, http://www.nytimes.com/2009/10/28/us/28pot.html?ref=global-home&pagewanted=print (in 1996 California was the first state to legalize marijuana for medical purposes);  José Varela, Medicalización, la alternativa, El Nuevo Día, October 21, 2010, at 67.  See also supra note 177.

[188] Alcohol consumption during Prohibition was .9 gals. per capita as compared to 2.58 gals. by 1986.  See Arnold Trebach & James A. Inciardi, Legalize It? Debating American Drug Policy  109-10 (1993).

[189] See   Associated Press, Study shows cannabis popular with teens, Boston Globe, (Dec.15, 2009) (http://www.boston.com/news/nation/articles/2009/12/15/study_shows_cannabis popular_with_teens/ (A study by the University of Michigan’s National Institute for Drug Abuse of 47,097 12th grade students showed that 20.6% said they used marijuana in the past month, as compared to 19.4% in 2008 in 2008 and 18.3% in 2007.).

[190] See Susana Ferreira, Europe Eyes Portugal’s Decade of Legalization, Wall Street Journal, July 20, 2010, at A13 (“In July 2000, Portugal moved beyond previous liberalization regimes in places like the Netherlands by passing a law that transformed drug possession from a matter for the courts to one of public and community health. Trafficking remained a criminal offense, but the government did away with arrests, courts and jail time for people carrying a personal supply of anything from marihuana to cocaine to heroin.”   See also, Brian Vestag, 5 Years After: Portugal’s Drug Decriminali­zation Policy Shows Positive Results, Scientific American, April 7, 2009, http://www.scientificamerican.com/article.cfm?id=portugal-drug-decriminalization (overdose deaths dropped from 400 annually in 2000 to 290 in 2006, and HIV incidence dropped from 1400 to 400 annually during that same period),  at annually during that same period);  Mala Szalavitz, Drugs in Portugal: Did Decriminaliza­tion Work?, Time, April 26, 2009, at 2, http://www.time.com/time/printout/0,8816,1893946,00.html. (Portugal has the lowest rate of lifetime marijuana use in the European Union  in people over 15 years of age, at 10%, as compared to U.S. at 39.8% for those over 12).  See also, Glenn Greenwald, Drug Decriminalization in Portugal 1, (2009) (Cato Institute), Wasn., D. C. (1009) at 1  (“The date show that, judged by virtually every metric, the Portuguese decriminalization framework has been a resounding success.); The Associated Press, “Mexico Legalizes Drug Possession, The New York Times, Aug. 21, 2009 (Mexico decriminalizespossession of  small amounts of marijuana, cocaine, heroin, LSD, and methamphetamine), http://www.nytimes.com/2009/08/21/world/americasd/21/mexico.  See also, Stephen Kinzer, German Court Allows Possession of Small Amounts of Marijuana, The New York Times, May 3, 1994, at A12 (The German courts have held unconstitutional on equal protection and privacy grounds, for the government to allow the use of some intoxicants such as alcohol, while criminalizing others, such as marijuana and ha­shish.); Christian Moraff,  Latin American Legalization Push,The American Pros­pect, (July 6, 2009), http://www.prospect.org/cs/articles?article=latina_legalization_push. The multi­discipli­nary Latin American Commission on Drugs and Democracy (co-chaired by former Presidents Fernando Enrique Cordero of Brazil, Cesar Gaviria of Colombia and Ernesto Zedillo of Mexico), called the drug war a “failure” and issued a groundbreak­ing report urging other governments in the region_ including the United States_ to rethink prohibition policy.”)  But see Pedro Mendoza Latin Leaders question move to legalize marijuana, Puerto Rico Daily Sun, October 27, 2010, at p-7, available at Latin America, [email protected] .

[191]See Drug Facts, The Netherlands and the United States: A Comparison, available at, http://www.drugwarfacts.org/thenethe.htm.

[192] See Henk Rigter, What drug policies cost. Drug policy spending in the Netherlands in 2003. 101-3 ADDICTION, at 323-329 (2006).

[193] In 1994, $144.4 billion were collected in alcohol taxes and approximately $8.4 billion for tobacco taxes. Testimony of John W. Magaw, Director of the Bureau of Alcohol, Tobacco and Firearms, before the U.S. Senate Subcommittee on Treasury, Postal Service and General Government Appropriations, (March,23, 1995). The Alcohol and Tobacco Tax and Trade Bureau collected nearly $15 billion in tax revenue from alcohol, tobacco and ammunition sales. In 2007, alcohol and tobacco tax revenues accounted for 98% of taxes collected.   See http://www.ustreas.gov/offices/management/budget/budgetinbrief/fy2009/ttb.pdf at 41-42.  See Miron & Waldock, supra note 47, at 8 (see Table 8). The Cato Institute estimates this figure at $17.1 billion for 2010. See Miron & Waldock supra, note 47, at 7.

[194]See Milton Friedman, The War We Are Losing in Searching for Alternatives: Drug Control Policy in the United States 67 (Melvin B.Krause & Edward P.Lazears eds., 1991).

[195] Arrests for simple possession of marijuana, is the fourth largest grounds for arrest in the United States. See Lester Grinspoon & James B. Bakalar, The “War on Drugs”_: A Peace Proposal, 330 New Eng. J. Med.  357, 357 n. 2 (1994). See Miron & Waldock, supra note 47 at  1.  State and local police spend approximately $2.15 billion annually on arrests for simple possession of marijuana, and statejudiciaries about $1.66 billion annually in the prosecution of these charges. See Miron & Waldock, supra note 47 at  1.

[196] See Miron & Waldock, supra, note 46  at  12.

[197] As masterfully argued by Professor David M. Helfeld in his article Narcotics, Puerto Rico, Public Policy: In Search of Truth and Wisdom, 75 Rev.Jur.U.P.R. 1029 (2006), there has been a misuse of Federal power the debate over the legalization of drugs, particularly regarding marijuana and its use for medical purposes. Id. at 1059-1067.  The Drug Enforcement Administration (DEA) thus issued a report in 2006 entitled Exposing the Myth of Smoked Medical Marijuana” (http://www.usdoj.gov/dea/ongoing/marijuana.html), lambasting the idea that mariju­ana could be used for medicinal purposes. The DEA report was followed a few weeks later by one issued by the National Institute for Drug Abuse, (NIDA), which is part of the Department of Health and Human Services, providing more detailed data and supporting sources on the harms caused by smoking marijuana. See “NIDA, In­foFacts: Mariju­ana, http://www.drugabuse.gov/InfpFacts/marijuana.html. On the same day that the NIDA report was issued, the director of the Office National Drug Control Policy (ONDCP) issued a release entitled New Study: Blad­der Cancer Tied to Marijuana Use. See http://www. Pushing back.com/archives/032406. This conclusion was based on an extrapola­tion of the fact that cigarette smoking is a major risk factor for bladder cancer.) As if this sequence of articles were not enough, the Food and Drug Administration (FDA) followed three weeks laterwith a statement entitled, Inter­Agency Advisory Regarding Claims That Smoked Mariju­ana is a Medicine, see http://www.fda.gov/bbs/topics/News2006/NEW01362.html. These re­ports and assevera­tions border on scientific obscurantism, by totally ignor­ing, if not outright suppressing, the abundant credible scientific evidence worldwide, which is contrary to these reports and statements. For criticisms of the FDA’s statement,   See The Politics of Pot, Edito­rial, The N.Y. Times, April 22, 2006. For a list of contrary scientific reports and opinions, see Helfeld, supra note 198 at 1064 n.’s 68-70, 1065. This govern­mental propaganda is, to say the least ironic, consider­ing that under the Mariju­ana Tax Act of 1937. See supra note 34, doctors and dentists were allowed to pre­scribe marijuana for medicinal purposes provided they paid a $1 annual tax.

[198]See Gary Fields, White House Czar Calls for End to ‘“War on Drugs”, http://online.wsj.com/article/SB124225891527617397.html.

[199] See Eric Etheridge, The War on the “War on Drugs”,The New York Times, April 2, 2009, http://opinionator.blogs.nytimes.com/2009/04/02/the-war-on-the-war-on-drugs/?pagemode= (summarizing the change in public and official views on legalization and commenting on support for Senator Webb’s proposed bill); Keila Lopez Alicea, Iglesia Metodista defiende la medicalizacion, El Nuevo Día, Dic. 29, 2009, http://www.elnuevodia.com/iglesiametodistadefiendolamedicalizacion_65366.html:  Alba Y. Muñoz Gracia, Busca Medicar Drogas en la Isla, El Nuevo Día, Oct. 21, 2009, at 58.

[200] Steven Hendrix, Baby boomers find growing acceptance of marijuana use, Boston Sunday Globe, at A9, available at http://www.boston.com/news/nation/washington/articles/2009/1122/baby_boomers_find_growing_acceptance_of_marijuana_use. See Alex Dominguez, Reefer Referral, National Geographic, November 2010.

[201]The Economist, How to stop the drug wars, March 9^th 2009, http://www.economist.com/printedition.PrinterFriendlt.efm?story_id=13237193. See Nicholas D. Kristof, End the War on Pot, The New York Times, October 27, 2010, available at http://www.nytimes.com/2010/10/28/opinion/28kristof.html?ref=global8pagewanted=print (“Our nearly century-long experiment in booring marijuana has failed abysmally, as prohibition did…) See also, George Soro: Why I support legal marijuana, The Wall Street Journal, October 26, 2010, http://online,wsj.com/article/SB10001424052702300303467004575574450703567656.html?.

[202] Id.

[203] Id.