One Judge’s Attempt at a Rational Discussion…

I. INTRODUCTION

I was recently reading a book by the well-known Mexican author Carlos Fuentes, also former ambassador to the United States and the United Nations, who on commenting upon Columbus’ “dis-Orientation” in mistaking his discovery for that of the islands off Asia, observed that: “[E]ver since, the American continent has existed between dream and reality, in a divorce between the good society that we desire and the imperfect society in which we really live.”l I believe this comment is apropos the subject of this essay.2

Our Nation has been engaged in a “war on drugs” since at least the mid-1970’s. As with other wars, there is confusion over purpose as well as disagreement over tactics, for in war we tend, in the heat of battle, to lose sight of rationality and the continued need to search for the truth. The time has come when we must stand back from the trenches to determine where we are, what we have accomplished, and where we want to go.

The discussion of this topic essentially involves considering the views of two divergent camps: (1) those who urge that the present laws not be relaxed and even that, in some cases, they be made more stringent, and (2) those who promote, in varying degrees, the decriminalization of the distribution and/or use of at least some presently illegal drugs.

Of course, part of the “problem” is defining what is the “problem.” To some there appear to be several reasons why government should reduce the availability of drugs. Yet not all within this group embrace all those reasons, although some do. Some believe drugs are bad for those who consume them, and that a proper role of government is to protect people from themselves. From this perspective, restricting drug use is analogous to protecting the public from unsafe food or, with a different focus, to the prohibition of pornography, even if used privately. There are others who justify the war on drugs not simply because of what drugs do to users per se, but because of what users do to others. Those who adhere to this view believe in the prohibition of drug use because drug users commit criminal acts to get drugs, or cause harm to others while under the influence of drugs, or because of the consumption of public resources to treat people who use drugs. Of course, whether any of these conditions are in fact “problems” depends in part on one’s ideas of how people should live their personal lives and on how society should function. Whether these are “problems” also depends on whether, from an empirical perspective, drug use has the consequences that its critics claim. Furthermore, even once we conclude that there is a “problem,” and we identify its nature, we must determine whether it is a problem worth dealing with and, if so, what is the best course of action to deal with it. This in itself is the subject of much debate. The point is that we have to be conscious of the fact that there is general disagreement not only regarding the ends that we pursue, but also as to the means by which we should conduct this so-called “war on drugs.”

Still, I must confess that I have chosen this topic with some trepidation. The most obvious reason for this hesitancy is, of course, the fact that as a public official, particularly one charged with deciding issues and cases related to drug offenses, I must do nothing which compromises, or even gives the appearance of compromising, the impartial adjudication of disputes arising under the laws that have been enacted by Congress.3

Although judges must be cautious in speaking out on matters of public policy, on the other hand, judges have an obligation to speak out when their work gives them a perspective on a particular issue that others do not have. In the matter of drugs, legislators and executive branch officials see the issue from an overall policy perspective, but influenced, and properly so, by public opinion and public fears. Professors and other researchers see drug issues from the vantage points of their various disciplines, and those involved in various advocacy groups see the issue from their particular points of view.

Lawyers and judges who participate in drug litigation, however, see the drug issue on a case-by-case basis, and when they see enough of those individual cases, they should begin to see a mosaic. But while lawyers see cases from the standpoint of the prosecutor or the criminal defendant, judges see them from both sides. I think all these perspectives are important in helping us analyze the problem, but I fear that up to now the analysis has not been sufficiently informed by the judicial perspective.

There is sufficient intellectual room to allow for what I would hope would be a rational discussion of the diverse questions raised by this subject. These are issues in which judges have remained almost universally silent,4 notwithstanding that judges are in a unique position to significantly contribute, by virtue of their experience and observations while on the job, to focus on these complex social problems. This collective judicial experience is sorely needed in advancing improvements in the law, the legal system, and the administration of justice.5 After twenty-one years on the bench, ten of which were spent in a very active and intensive trial court, I have sufficiently lost my judicial innocence, at least to the extent of allowing me to comment frankly on this admittedly controversial subject. Furthermore, because my record as a sentencing judge hardly classifies me as being “soft” on crime and particularly on drug related crime, I believe I can write from a position which is non-apologetic. It goes without saying, of course, that the views I am about to express are just that, my views at the present. They in no way represent those of the court I sit on, or its members, or the federal judiciary in general, and, of course, I reserve the right to change them. Notwithstanding my remarks, let me assure that I take my oath of office seriously and that I will continue to fully comply with it, irrespective of .the personal views I may express here. The essence of the judicial role is to apply the law regardless of one’s personal view of the law or how one might try to change it if one sat, not in the courtroom, but in a legislative chamber.

The fact of the matter is that my personal views on this subject have changed over my years on the bench, and they have changed dramatically. This has happened gradually, but if I were to pick a point in time when this process started, I could tell you it was towards the end of my district court tenure. More specifically, it was as a result of a trip that I took to EI Salvador in the mid-1980’s, sponsored by the State Department, to speak to the Salvadorean judiciary and bar regarding the American legal system. After the incident which I will presently describe, I realized that I had already unconsciously started to become dissatisfied with the drug laws and their administration, and with the obvious lack of tangible progress in containing what seemed to be a losing battle in the war against drugs. This gradual change in point of view came about in part because I intuitively felt that the strong sentences that I and other colleagues were handing out, as well as the massive government efforts of which I was aware, seemed to have little or no impact on the increasing flow of drugs into this country. I also detected a change in the nature of the defendants and groups that were appearing before me. While at first they appeared to be at best a bunch of disorganized amateurs, they gradually came to be well-organized professional criminals. I remember the defendant that was tried before me, who had been caught with $10 million in manager’s checks in his left shoe, and who owned a “coffee” farm in Colombia that was almost as big as Puerto Rico. The banker who testified said under oath that he saw nothing unusual in being presented with mountains of shopping bags full of $20 to $100 bills which the defendant brought on a regular basis, and which took three bank employees from 9 a.m. to 2 a.m. to count. This, and similar incidents, made me think that something was rotten in Denmark, and that the system was endemically faulted.

In any event, toward the end of my tour in EI Salvador, which I should mention, was right in the middle of the civil war in that country, I was speaking to a bar group in one of the smaller cities. Somehow the discussion got around to issues related to drug enforcement. I expounded, I suspect somewhat long-windedly, my views to the effect that the United States needed the cooperation of Latin America in stopping the drug traffic by stricter enforcement, by stopping corruption, by eradicating the illegal crops, etc. The audience was very polite, in fact one or two of those present may have actually clapped when I finished. A hand was then raised in the back of the room. The speaker identified himself as a lawyer, who said to me very deferentially: “Honorable Judge, we very much appreciate your presence and the advice you have given us, but don’t you think the United States could help us in solving this problem?” I answered that as I understood the situation we were already sending considerable sums in aid, and that we had a lot of resources committed to the interdiction of drugs from Latin America and the prosecution of violators. To which he responded: “Excuse me your Honor, that is not the help 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.” At first glance this seemed a rather trite, and perhaps insignificant interchange, but it hit me like a sledgehammer between the eyes, and brought home what I had already suspected, that there might be something fundamentally wrong with our traditional approach to the drug problem in the United States.

This leads to a second reason for hesitating in choosing this topic. As complicated as this issue appears to be based on what one reads in the newspapers or what I see and sense from the briefs that lawyers present to me, as well as the cases I heard when I was a trial judge, once I began to delve into the reams of government reports, scholarly journals, and interest group advocacy, these issues reveal themselves to be truly mind-boggling. Worst yet, after it is all done you are left with a persistent feeling that there may be no single answer, and certainly that there is no quick and easy solution. It is thus a particularly frustrating subject for me because I am generally pretty much resultoriented.

Drug enforcement policy; involves the consideration of issues as diverse as international and national politics, law enforcement, sociology, economics, organizational dynamics, and penology, to mention only the most salient. In addition to these, there are complex scientific, pharmacological and health questions. And, of course, there are the moral quandaries raised by the various policy choices or alternatives.

One last caveat. Do not in any way misinterpret anything that I may express here as an endorsement of any type of drug use, legal or illegal. Nothing could be further from my personal beliefs. Mine is but an attempt at rational discussion of what I understand to be essentially a health and social problem, rather than a criminal one.

What I will try to do is to layout some basic, generally accepted facts, analyze what I think they mean, list the pros and cons that are claimed by the various exponents of the different view points,7 and express some very tentative conclusions.

II. THE MAGNITUDE OF THE PROBLEM

We must start by getting some handle on the figures that delineate the issues. Because my remarks are directed almost exclusively at issues raised by the drug trade with, and in, the United States, right off we are faced with a distortion, to what extent I do not know, caused by the inability to accurately factor in many of the transnational influences that have indirect, but important, impact upon the solution of any national drug problem. What I mean by that is best illustrated as follows. For example, how is more, or less, enforcement in, or by, the United States affected by the failure to follow suit by the rest of the international community? Or, how will legalization in one jurisdiction be affected by the failure to carry out such action elsewhere? Will the drug trade, and/or addiction, move transnationally, as it is affected by these factors? These questions are obviously far from exhaustive, but are sufficient to illustrate what is rather obvious: We are dealing with a subject that will not yield to mathematically certain solutions. In fact, the inability to account for the effects of transnational influences is part of a larger problem that one encounters when trying to understand a phenomenon as complex as drug use. I am referring to the presence of competing explanations for most of the trends I will describe to you. I am not the person, and this is not the forum, for the kind of complex multi-variate analyses that would be necessary to isolate all the many factors that might be associated with, say, an apparent increase in the use of one drug or an apparent decrease in the use of another. Again, all I can do is present the facts I have found, comment on what I think. they mean, and invite your consideration. Thus, for present purposes I think it best to just recognize the existence of these conditions, and then move on.

For our purposes I will only cover marihuana, cocaine and heroin, of the illegal psychoactive drugs,8 and tobacco and alcohol of those that are legal. I have included tobacco and alcohol within the scope of this already complicated scenario because comparison between the societal treatment given to legal and illegal drugs, and the outcome of this treatment, is in my view an important consideration in forming an opinion as to which course of action should be taken. As close as possible, the period covered will be that commencing in 1973, which is more or less the official commencement of the so-called war on illegal drugs, and on through 1994, which is the latest year for which complete statistics are available. I will, nevertheless, admit to having engaged in some extrapolation, and there are many times when I end up comparing apples with oranges, because that is the best I can do.

A. Trends in the Use of Psychoactive Drugs in the United States

Let me start by stating the overall problem in terms of the general numbers. It is estimated that there are 46.3 million tobacco users,9 103 million alcohol userslO and almost 12.2 million illicit drug users in the United States.ll These groups are, of course, not mutually exclusive as there are undoubtedly many drug users who can be found within the ranks of more than one of these groupings, and in any combination thereof.

1. Tobacco

In 1970, the per capita consumption of tobacco for those over 18 years of age was ten pounds per year. 12 This figure had dropped to five pounds per year by 1992,13 a decrease of 50% in tobacco use during this period. The percentage of cigarette smokers 18 years of age and older had dropped from 42.3% in 1965 to 25.4% in 1990.14

2. Alcoholic Beverages

The average annual household expenditure for alcoholic beverages decreased from $289 in 1987 to $268 in 1993, after a peak period between 1990-92 of $293-301.15 This shows a decrease in overall alcoholic consumption of 7.3% between 1987 and 1993. Perhaps more revealing are the age group historical trends. In the 12-17 years old age group 54% used alcohol in 1974, compared to 41.3% in 1993, thus showing a decrease in use among teenagers.16 In the 18-25 age category 81.6% used alcohol in 1974, increasing to 87.1% in 1993.17 The 26 years old and over age group remained stable at about 90% throughout the period. 18

3. Use of Illicit Drugs

There were significant declines in the use of illicit drugs through the 1980’S.19 This went from almost 13.7% for all persons over the age 12 in 1979, to 5.6% for that sallie group in 1993,20 a general decrease of about 59.1% in the use of illegal drugs during this period.

a. Cocaine

In 1974, 2.7% of those 12-17 years old reported using cocaine, which declined to 0.8% by 1993, after peaking at over 4% for the 1979-82 period.21 In the 18-25 age group there was an overall decline from 8.1% in 1974 to 5.0% in 1993, with a peak of close to 20% in the 1979-82 period.22 The over 26 age group has generally increased from 0.6% in 1976 to 1.9% in 1993, reaching a peak of around 4% in the 1982-85 period.23

b. Marihuana

In 1974, 18.5% of persons aged 12-17 used marihuana, which dropped to 10.1% by 1993, after a peak of over 20% during the 1977-82 period.24 For ages 18-25 this figure also decreased, from 34.2% in 1974 to 22.9% in 1993, with peak years of over 40% in the 1979-82 period.25 Again, there has been an increase in the 26 and older group from 3.8% in 1974 to 6.3% in 1993, with the peak hovering around 10% in 1982 and 1985.26

c. Heroin

All age groups show a general decline in the use of this drug. The 12 to 17 years old age group went from 1.0% in 1974 to only two-tenths of a percent in 1993.27 Those in the 18 to 25 years old bracket went from 4.5% to 0.7% in the same period, and those in the 26 years old and over age group declined from half a percent to a base that was too small to be statistically reliable from 1974 on.28

B. Some Costs of Drug Use in the United States

1. 1. Illegal Drugs In 1973, the total amount spent to enforce the drug laws of the United States was less than $100 million.29 In 1994, this figure had grown to about $12.184 billion annually, more than 121 times that of 1973.30 Parenthetically, violent crime rates nearly doubled during about the same period, from 417.4 per 100,000 population in 1973 to 757.5 in 1992.31 Drug distribution offenses represented roughly 40% of all federal prosecutions and 42% of all federal prison admissions in 1991.32 Federal prison authorities report that about a third of federal inmates have moderate to severe substance abuse problems.33 It is estimated that the average annual cost of holding one prisoner ranges from $20,000-$30,000 per year.34 The cost of building new prisons, depending on climate and security level, range from $50,000 to $200,000 per prisoner.35State and local government expenditures for drug enforcement are substantial but more difficult to determine with precision. A 1987 study estimated that $5 billion were spent for drug enforcement investigations at a local level in 1986, a figure which, if accurate, has obviously increased substantially since then.36 Between 1981 and 1986, state and local drug arrests grew 59%,37 and thereafter increased an additional 23% from 1986 to 1991.38 In 1980, only 7% of those admitted to state prisons were convicted of drug related offenses, while by 1990 this figure had risen to 32%.39About 5,000 people die annually from causes directly attributed to the use of illicit drugs.40 The annual cost of illegal drug abuse in the United States has been estimated at $167 billion.41 In 1995, the federal government spent about $77 billion on drug and alcohol abuse and smoking-related illnesses.42 In 1994, it spent $1.597 billion on drug abuse campaigns.43
2. Legal Drugsa. Tobacco

The annual death toll from smoking-related diseases was estimated at 188,000 in 1965, a figure which more than doubled to about 434,000 by the late 1980’S.44 These figures do not include the almost 40,000 nonsmokers who die each year from ailments associated with the inhalation of passive smoke.45 The annual cost of tobacco use to American society has been estimated at $147 billion.46 In 1995, the federal government spent approximately $43.56 billion on health care and disability benefits for treatment of diseases and illnesses associated with tobacco use.47

During the 1989-93 period, u.s. cigarette advertising and promotional expenditures went from $3.617 billion to $6.034 billion per year.48 During 1995, and throughout most of this period, the government spent an estimated $120 million a year on its antismoking efforts, mostly on medical research.49

Year	Expenditure
1989	$3,617
1990	$3,992
1991	$4,650
1992	$5,231
1993	$6,034

TABLE 1. U.S. Cigarette Advertising and Promotional Expenditures 1989-93. 50

b. Alcohol

In 1991, it was estimated that there were about 10 million alcoholics in the United States, and that a total of 73 million adults had been touched by this condition. 51 Also by 1991, yearly alcohol-related traffic fatalities in the United States were estimated at 45,000.52 Moreover, “thousands of women who drink during pregnancy bear children with irreversible alcohol-related defects.”53 It is estimated that there are a total of 100,000 alcohol- related deaths each year in the United States. 54 The total annual cost of alcohol abuse in the United States for 1990, including direct governmental and private spending as well as indirect costs such as lost productivity, was estimated at $136.31 billion.55 In 1994, about $12 billion were spent by the federal government on health care and disability. 56 Two-fifths of all crime leading to state prison sentences is committed under the influence of alcohol. 57

Overall media advertising of alcoholic beverages (adjusted for inflation) decreased from a high of $1.5 billion in 1986 to $808 million in 1993.58 More than $200 million were spent by the beer industry alone in the last decade on programs to curb alcohol abuse. 59 The salient facts from the above statistics can be summarized as follows: 1. Between 1973 and 1993 there was a general decrease of about 59.1% in the use of illegal drugs in the United States. 2. During the same period there was a 12,184% increase in government spending in enforcing laws related to illegal drugs. 3. Violent crime increased by 100% during this period. 4. There was a decrease in the use of alcoholic beverages of 7.3% and that of tobacco of 50% during this period. 5. In 1993, the annual amounts spent in promoting alcohol consumption was $808 million, and for tobacco $6 billion. In that same year, about $20 million were spent in anti-abuse campaigns against alcohol, and $120 million in anti-smoking efforts. The anti-drug campaign by the federal government was $1.597 billion in 1994. 6. The combined annual cost to society of alcohol and tobacco abuse ($338 billion) is twofold the total cost of drug abuse ($167 billion).

Drug	Users (in millions)	Rate of Users to U.S. Population	Annual Societal Cost (in billions)	Direct Deaths (on thousands)	Percentage of Direct Deaths by Users
Tobacco	46.3a	1:5	$147.00d	434g	1%
Alcohol	103.0b	2:5	$136.31c	100b	0.1%
Illicit Drugs	12.2c	1:25	$167.00f	5i	0.04%

a 1994 – d 1994 g – 1988 (users: does not include passive smokers) b 1993 – e 1991 h – I990  (does not include traffic fatalities) c 1994 – f 1994  i – 1991 TABLE 2. Drug Use Comparison

Drug	Users	Rate of Users	Annual
Tobacco	$6.034	$0.12	-50.0%
Alcohol	$0.808	$0.02	-7.3%
Illicit Drugs	n/a	$1.597	-59.1%

a 1993 b 1993 c Based on average of $200 million over the past decade. See supra txt accompanying note 59. d 1994 e 1970-92 f 1987·93 g 1979-93 TABLE 3. Comparison of Advertising Campaigns Promoting Use vs. Anti-Abuse (in billion dollars) – 1993

Drug	Federal Government Spending (in millions)	Users (in millions)	Amount Spent/Users	Annual Deaths (in thousands)
Tobacco	$43,680.00a	76.3	$943.41	434e
Alcohol	$11,900.00b	103.0d	$115.53	100f
Illicit	$24,341.00c	12.2	$1,995.16	5g

d 1993 e 1988 f 1990 g 1991 a This amount is determined as follows: $ 43,560 (million) for heath a rehabilitation + $ 120 (million) anti-abuse campaign    $ 43,680 (million) b Thia amount is reached as follows: $ 11,880 (million) for heath a rehabilitation + $ 120 (million) anti-abuse campaign    $ 11,900 (million) c This amount is reach as follows: $12,184 (million) for drug enforcement $1,597 (million) anti-abuse campaign + $ 10,560 (million) for health and rehabilitation    $24,341 (million) TABLE IV. Federal Government Spending/Drug User – Ratio 1994

What conclusion do these statistics suggest regarding illegal drugs? Has the war on drugs been a success? Is the present strategy cost-effective? Does the present treatment of legal drugs tell us anything that might be of help in terms of strategy to deal with the use of illegal drugs?

As Kleiman and Saiger propose:

The challenge of drug policy is to find least-cost solutions to the problems created by the age-old fact that some human beings take more of various mind-altering substances than is good for them or their neighbors, and by the modern fact that the amount and variety of available psychoactives is rapidly increasing.60

Implicit in both the status quo and legalization views, as well as the many combinations in between, are cost / benefit calculations in which each side argues that the costs outweigh the benefits.

A superficial overview of the facts and statistics that I have quoted leads me to conclude that the tremendous investments made by the government in law enforcement efforts in the war on drugs have resulted in rather modest gains when compared to the relatively insignificant educational investments made by the government to discourage tobacco and alcohol use, and the reductions in use resulting therefrom. That would lead me to conclude that when it comes to reducing drug use the government gets more bang for the dollar from education than from enforcement. A second preliminary conclusion that I reach is that there appears to be some correlation -correlation, not necessarily causation -between increases in violent crime and more vigorous enforcement of prohibition. Lastly, I conclude that although there appear to be societal costs for tobacco and alcohol use of more than two times that of using illicit drugs, government spending related to the use of illegal drugs is twice that spent for tobacco and alcohol abuse. A parallel analogy is that although there are ten times more tobacco and alcohol users than users of illegal drugs, government spending on users of illegal drugs is twice the amount spent on tobacco and alcohol users.

III. MAINTAIN THE PRESENT POLICY OR ADOPT A NEW ONE? WEIGHING THE ARGUMENTS

One who takes up this topic walks into more than the mass of empirical data about usage, cost, and trends that I have just summarized. There is also a crossfire of arguments for maintaining the present policy and for adopting a fundamentally different policy. Those arguments not only see the empirical data differently; they also see different moral and legal dimensions to the debate over drug policy.

The current policy calls for attacking both the supply and the demand sides of the illegal drug equation. This policy has various, more specific elements: continued international enforcement, border interdiction, domestic efforts to reduce the available supply, attacks on the economic base of traffickers by criminalizing money laundering and by seizures, and various educational and rehabilitation programs. Not all proponents of the current policy favor all elements, or give each element equal weight.

There is similar disagreement among those who favor a fundamental shift in current policy, those, in other words, who advocate “legalization” or “decriminalization.” These terms, although technically meaning different things, have, in the heat of the debate, been used almost interchangeably. Some advocates of legalization want all psychoactive substances to be available to any willing buyer. Most, however, would limit legal availability to adults, and apply the new policy to only some of the current illicit substances. “Legalization” is also used to describe the idea that addicts with established drug habits should have legal access through clinics. This is generally within what is meant by “decriminalization.” Most advocates of “decriminalization” would keep distribution illegal, at least by private persons, but would end arrests of consumers.

Massachusetts attorney Richard Evans, a reform activist, places the alternatives to prohibition into three groups: decriminalization, limitation, and regulation and taxation.61 As Trebach explains:

Under decriminalization, drugs would remain illegal but the offense of possession would be treated like a traffic violation, with relatively little loss of liberty for the transgressor. Limitation models would make drugs legally available but with clearly defined limits as to which institutions and professions could distribute the drugs. Included here, for example, would be the distribution of drugs to addicts through doctors, an approach I labeled “medicalization” many years ago. Regulation and taxation models would involve a wide array of looser controls, similar to those currently applied to alcohol. 62

Despite these conflicting themes within the two basic positions, it is possible to delineate some basic questions. I see five:

A. Is the current policy capable of limiting drug use in a realistic way?

B. Which alternative imposes greater costs on society, permitting or prohibiting the use of drugs?

C. Does the current policy adequately promote education and treatment as well as law enforcement, and is there an adequate balance between these three courses of action?

D. What can we learn from the various attempts at drug legalization?

E. Is the current policy basically fair in its application? I want to summarize the contrasting answers to these five basic areas and tell you how I come out, at least tentatively.

A. Is the Current Policy Capable of Limiting Drug Use in a Realistic Way?

Proponents of the current policy argue that the very fact that dangerous drugs are illegal is one of the most powerful deterrents to their use.S3 They point to the reduction of 59.1% in overall drug use from 1979 to 1993 as proof.64 A comparison between the number of people that use illegal drugs with those that use alcohol and tobacco illustrates this point.

Opponents of the current policy may concede that it has reduced drug use, just as Prohibition reduced alcohol consumption, but they argue that the “war on drugs” initiative is cost ineffective when compared to the results achieved. An increase of 12,184% in the enforcement budget between 1973 and 1993 to achieve a 59.1% decrease in illegal drug use would appear to be highly cost ineffective, particularly when the modest amounts spent by the government in tobacco use education have apparently contributed to a 50% drop in the use of tobacco for that same period.

They further argue that, viewed from a broader perspective, the economic forces of supply and demand make it virtually impossible to control the drug trade in any realistic sense.

As to supply, law enforcement officials readily acknowledge that they intercept only a small percentage of drug shipments from abroad.65 Attorney General Janet Reno said in 1993 that she had “always being struck” by a statement made by federal officials to a Dade County, Florida grand jury in 1983. At a time when stepped-up federal efforts had managed to interdict only about 25% of the drugs entering the southeastern United States, they said that 75% of the drugs entering would have to be cut off before interdiction was effective, a figure which they described as “economically prohibitive.”66

The problem is even worse. Even assuming that effective interdiction could be achieved as well as successful crop eradication in source countries, the resulting squeeze in the supply of drugs available to the U.S. consumer would be counterproductive. It would merely cause the price of illegal drugs to rise. As a result, addicts would have to commit more crimes to acquire the needed cash to pay for drugs at a higher price,67 and more criminals would have an incentive to enter the drug trade because the opportunity for higher profits would be greater.68 On this last point, it is estimated that “[a]bout $500 worth of heroin or cocaine in a source country brings in as much as $100,000 on the streets of an American city.”69 What other product permits for such a markup (20,000%), tax-free? Yet, it is the black market created by prohibition that allows it.70

As to demand: It is pretty obvious to most observers that users of illegal drugs are de facto and morally the principal cause of our drug dilemma. In the United States alone there are one million regular cocaine users71 and five million who regularly use marihuana.72 As the Salvadorean lawyer said to me: “If you weren’t using it, we wouldn’t be growing it and selling it to you.” The need to emphasize demand reduction is recognized by many leading experts,73 although I have yet to see any proposal that takes into account the hard facts of real politics. The only places that I am aware of in which there is real, no-nonsense demand side enforcement against users are Malaysia and Singapore, 74 as well as some Muslim countries. There, the possession of any amount of illegal drugs is a hanging offense. I do not favor such draconian measures, and regardless of my preferences, I do not see the political climate for such demand side enforcement, and for that reason I do not see much possibility for stemming the demand for illegal drugs in the United States by the use of prohibition tactics. Thus, the tremendously lucrative black market, estimated at $150 billion a year in the United States alone,75 is likely to continue unabated. Incidentally, it is reported that marihuana is the number one cash crop in the United States.76

It was precisely the political attitude against enforcing the drug prohibition laws against young people of nearly all ages and all social classes that brought about the decriminalization of marihuana in eleven states during the 1970’s.77 An attorney involved in lobbying attempts to reduce the penalties for simple possession explained to the Utah State Senate: “These are your kids, after all.”78 Another stated that “the courts would be reluctant to convict in marihuana possession cases since the marihuana problem was hitting middle-class families and Mormon youth.”79 Although such tolerance is typically not exhibited towards minority users, particularly when “harder” drugs are involved, the fact is that we cannot prosecute and put all users in jail, even if we wanted to.80 Already more than one in forty American males between the ages of 14 and 34 are locked Up.81

One possible corollary to be gleaned from this scenario is that drug use, legal and illegal, is principally a health problem which is best dealt with not by driving it underground with prohibition tactics, but by having it out in the open to allow for treatment and education.82 Peter Reuter concludes that drops in marihuana use by high-school age users, particularly in the 1980’s, are related more to changed perception of the health dangers of such use than to enforcement efforts.83 It is difficult to understand why illegal drug addiction should be treated differently from alcoholism or nicotine addiction: All are basically public health problems.84

B. Which Alternative Imposes Greater Costs on Society: Permitting the Use of Drugs or Prohibiting Their Use?

Proponents of the current policy argue that the harm caused by drugs is not restricted to the users. I believe they deal effectively with the so-called “libertarian” point of view that is espoused by at least a minority of respectable persons from diverse walks of life85 -people who say that criminal sanctions cannot, and should not, prohibit personal conduct which does no harm to others. It is not the business of government, they say, to protect people from themselves. An individual should be free to engage in the private use of drugs because the right to ingest substances is part of the right to self-determination.

For starters, I note that this alleged right to selfdetermination rests on a constitutional foundation yet undeclared. More important, however, drug use does cause harm to others. Proponents of the current policy point to such secondary effects as crime, accidents, and public nuisances. All those things have innocent victims quite apart from the users. Drug use also imposes various costs on society -the costs of lost productivity, and prenatal injuries.86 The annual external costs inflicted on infants by mothers abusing cocaine and heroin alone was estimated at $23 billion in 1990.87

Moreover, public opinion is overwhelming against legalization, 88 and such action would not only be unpopular but would send the wrong message, particularly to the younger age groups.

Opponents of the current policy do not dispute these costs. They dispute that prohibition is the best way to reduce them. Legalization, they say, would eliminate the criminal entrepreneur and enterprise endemic to the illegal drug black market as well as most of the negative downstream effects related thereto.

Before comparing dollar costs, it is important to consider their argument that prohibition exacts its own toll on the very concept of a free society. One does not have to embrace the libertarian argument to see a moral contradiction in our current approach to drugs. Interestingly enough, Nobel prize economist Milton Friedman said that “the economics problem [of drug use] is strictly tertiary. It’s a moral problem . . . . What scares me is the notion of continuing on the path we’re on now, which will destroy our free society.”89 Opponents of the current policy note that very few people would today seriously argue in favor of the criminalization of tobacco or alcohol use. Nevertheless, opponents compare the 5,000 deaths directly attributed to the use of illicit drugs with over 570,000 annually directly caused by alcohol and tobacco use. In fact “[a]lcohol is the drug most associated with many forms of violence, including domestic violence.”90 And the direct and indirect antisocial consequences of tobacco abuse are scientifically undisputable. What, we are asked, is the morality of prohibiting drug use but not the alcohol or tobacco use?91

Whatever the moral argument, however, we also need to consider the social and economic costs of the current policy and ask whether the costs of an alternative policy would be as great. Opponents make these arguments.

First, they say, prohibition “inflates the price of drugs, inviting new criminals to enter the trade; reduces the number of police officers available to deal with violent crime; fosters adulterated, even poisonous, drugs; and contributes significantly to the transmission of HIY.”92

Moreover, the black market underground economy created by prohibition allows a huge pool of economic power to be controlled and influenced by criminal elements. Competition for these funds is directly responsible for most of the so-called “drug-related violence.” Prohibition provides a case history. The murder rate not only rose with the start of Prohibition, and remained high during its existence, but in fact declined for eleven consecutive years after it ended.93 Similarly, the rate of assaults with firearms rose during Prohibition but declined for ten consecutive years after repeal.94 Whatever violence is associated with the multi-billion dollar alcohol industry today as regardsthe production, distribution, and sale of alcoholic beverages, it is undeniably insignificant when compared to the violence that accompanied these activities during Prohibition.95

The competitive or “turf” related drug violence is intrinsically related to prohibition and therefore it is logical to conclude that it would virtually disappear with the elimination of the drug black market.96 Economic compulsive crime, that is, crime that addicts do to finance an expensive habit, should also decline dramatically with the repeal of prohibition.97 That leaves socalled psychopharmacological crime, that is, crime induced primarily by the impact of the drug upon the body and emotions of the user. A study of this last group revealed that in only 7.5% of homicides involving any drugs was a psychopharmacological label justified, and even in these cases, the most common element was alcohol. 98

More people die every year as a result of the war against drugs than from what we call, generically, overdosing. Milton Friedman, an advocate of legalization, has estimated that as many as 10,000 homicides a year are plausibly attributed to the drug war.99

Because the sums of money generated by the illegal drug trade are so large, prohibition has placed tremendous economic power in the hands of organized crime. This economic power is the result of both the large amounts of drug generated money and the fact that there is an unregulated market of illegal products. This power allows the corruption not only of law enforcement officers, but also of all levels of public officials, and related politicians. lOo The most salient example of this subversion is presently being witnessed in Colombia with its alleged election funds scandal, in which it is claimed that President Sam per’s election campaign was partially financed by the Cali drug cartel. 101

The current policy, say its opponents, creates general contempt for the law with more serious and permanent societal costs. Both federal and state laws prohibiting drug use are frequently violated with impunity by many citizens. According to the Office of National Drug Control Policy: “[H]ere in the United States, in every state – in our cities, in our suburbs, in our rural communities . . . drugs are available to almost anyone who wants them.”102 They could well have added to their list, “even in our jails,” for it is an acknowledged fact that even in the allegedly secure environment of our prisons, illegal drug use is rampant.

Finally, opponents point to the resources that would be freedup if we abandoned our current policy. In the area of crime prevention alone, 400,000 policemen as well as multi-billion dollars in federal and state law enforcement and penal expenditures would be available for treatment, education and “regular” criminal police work.103 Additionally, our court systems would be freed up to handle not only the non-drug criminal docket but the societally important civil docket as well.

Tax revenues from alcohol and tobacco amount to $152.8 billion yearly.104 I believe it is a fair assumption that the legalization of the drugs presently proscribed would allow their taxation in substantial amounts. Certainly, the revenues from their taxation would be higher than at present. The precedent for reaping public funds from the wages of sin is certainly well-established. Additionally, the presently tax-free income profits derived fromthe sale of illegal drugs, would come into the mainstream of income taxation.

C. Does the Current Policy Adequately Promote Education and Treatment As Well As Law Enforcement? Is There An Adequate Balance Between These Three Courses of Action?

There is almost unanimous agreement among independent observers that “the apportionment of anti-drug funding is lopsided.” 105 Historically, about three-fourths of available funds have been earmarked for supply reduction (enforcement, interdiction and foreign assistance initiatives), with only onefourth of the money being assigned to demand reduction (prevention and treatment).

Yet treatment is seven times more cost effective than prohibition. One dollar spent on treatment of an addict reduces the probability of continued addiction seven times more than one dollar spent on incarceration. Unfortunately, treatment for addicts is presently not available for almost half of those who would benefit. “Yet,” in the words of William Buckley, “we are willing to build more and more jails in which to isolate drug users even though at one-seventh the cost of building and maintaining jail space, and of pursuing, detaining and prosecuting the drug user, we could subsidize effective medical care and psychological treatment.”106

Proponents of the current policy argue that the pharmacological effects of drug use generally support prohibiting their use. E. Leong Way, a renowned scientist and professor of pharmacology, toxicology and pharmaceutical chemistry at the University of California San Francisco, provides a hierarchy of drugs according to their addictiveness and harm, placing cocaine and alcohol at the top, and marihuana and tobacco at the bottom.107 Avram Goldstein claims alcohol and tobacco are the greatest health problems, and that legalizing other substances will only create further problems. lOB Dramatic examples of drug-related harm caused by cocaine and opiate use include toxic reactions, drugoverdose deaths and the spread of AIDS among needle-sharing addicts. Cocaine, which is an extremely potent central-nervous system stimulant, has the physical effects of increasing temperature, heart rate, and blood pressure, all of which can cause serious bodily injury, including death. Heroin, is of course, highly addictive with all the concomitant problems that flow from such a condition.

Even as to marihuana, which many regard as having few if any serious health effects, there has not been an opportunity for wide-scale study. There is, however, at least some credible evidence that marihuana causes lung damage.

Researchers at the University of California at Los Angeles reported early in 1988 that the respiratory burden in smoke particulates and absorption of carbon monoxide from smoking just one marihuana “joint” is some four times greater than from smoking a single tobacco cigarette. Specifically, it was found that one “toke” of marihuana delivers three times more tar to the mouth and lungs than one puff of a filter-tipped cigarette; that marihuana deposits four times more tar in the throat and lungs and increases carbon monoxide levels in the blood fourfold to fivefold. 109

Aside from the health consequences of marihuana use, research by the Center for Psychological Studies in New York City, conducting research on the behavioral aspects of drug use, has led to the conclusion that the use of marihuana severely affects the social perceptions of heavy users. 110

Proponents also note that the pharmacological effects resulting from the use of most illegal drugs (I should say, alcohol as well) also increase the chance that users will become victims of crime. 111

Finally, although mandatory civil commitment is a controversial subject, there is considerable statistical evidence in support of this approach, because there is a definite correlation between length and intensity of treatment, and rehabilitative success.112

Opponents of the current policy tend to emphasize the modest health risks associated with at least some drugs, particularly marihuana. Harvard’s Lester Grinspoon, for example, has documented the alleged medical benefits of marihuana.113 Few opponents claim that all drugs are benign. Most argue instead that the national effort to control their use should be fought as a public health war, with the government putting addicts into the public health system as it has done with alcohol and tobacco abuse. 114 As previously stated, prohibition has led to deaths through the use of adulterated drugs and is a principal cause of the spread of HIV virus, especially, as noted below, 115 among Mrican- Americans. Prostitution for drugs and “crack” babies are also direct consequences of prohibition.

D. What Can We Learn From the Various Attempts at Drug Legalization?

We should commence with the case of relegalization of alcohol use in this country, i.e., the repeal of Prohibition.

Whatever its faults, proponents say, Prohibition showed that the law can reduce the use of dangerous substances. Prohibition reduced alcohol consumption by 30% to 50%,116 and led to a dramatic decline in both cirrhosis deaths and hospital admissions for alcohol related psychosis.117 According to John C. Lewis, a former administrator of the Drug Enforcement Administration, the repeal of Prohibition resulted in a huge increase in the use of alcohol. 118 Data substantiates Lewis’s claim: From 1916-19, per capita consumption of alcohol for the drinking age population in the United States was 1.96 gallons. It dropped to 0.90 gallons during Prohibition and increased thereafter to 1.54 gallons between 1936-41, and to 2.58 gallons by 1986.119 To be sure, Prohibition failed to eliminate drinking entirely, and it produced a black market, but we are told to use the lessons of the Prohibition era to refine the current policy rather than throw up our hands and hopelessly assume that history can only repeat itself.

Proponents also note that the annual societal cost of tobacco and alcohol is 2.3 times that of prohibited drugs. Furthermore, the ratio of the annual deaths is close to 500:5 as between the two groups. Legalization of alcohol and tobacco has thus had serious effects on society, and there is good reason to assume that the legalization of presently illegal drugs would follow the same road, nullifying any or most predicted benefits from such action.

Furthermore, say proponents, legalization would increase the supply of drugs, thus lowering their prices and putting them within the economic reach of more people.120 At least one observer claims that this increase will be mostly among children. 121 Alcohol use since the end of Prohibition tends to support the conclusion that legalization will increase the use of drugs.122 This assertion also seems to be supported by the rate of use of tobacco (1:5) and alcohol (2:5) as well as the absolute number of users (46.3 and 103 million), which far outstrips that of prohibited drugs (1:25 and 12.2 million).123

Proponents of the current policy regarding illegal drugs argue that legalization and decriminalization of drugs in other countries has failed to deal with the problems that substance abusecauses. Opponents of the current policy see these experiences in a more favorable light.

Probably the most frequently cited country in this regard is the Netherlands. Proponents of the current policy argue that the de facto decriminalization of soft drugs was more the result of the absence of policy, and belated adaptation to already existing circumstances, than of any rational, well-considered action. 124 “Drug tourists” from Germany, Belgium, Luxembourg and France flock to the Netherlands because of its permissive rules for soft drugs.125 By contrast, and cognizant as I am of the dangers inherent in making transnational comparisons, I think it is fair to say that Dutch drug policy has generally been more successful than U.S. drug policy.126 Dutch drug policy has evolved in partial opposition to the internationally dominant ideology of prohibitionism. While “fully in line with international control policies against wholesale drug trafficking, “127 Dutch policy on drug use has sought de-escalation and normalization.128 “Problematic drug use is accepted as an inevitable, but limited and manageable, social and (public) health problem of modern society.” 129 Harm reduction is the core concept; it is translated into extensive low level and non-conditional perscription of methadone, social-medical assistance for drug users, large-scale free needle exchange programs, and the pragmatic acceptance of several “free zones” where the consumer drug market is left largely undisturbed. 130

The average age of heroin addicts in the Netherlands has been increasing for almost a decade. HIV rates among addicts are dramatically lower than in the United States; police don’t waste resources on non-disruptive drug users but, rather, focus on major dealers or petty dealers who create public nuisances. The decriminalized cannabis markets are regulated in a quasi-legal fashion far more effectively and inexpensive than the U.S. equivalent.131

The level of marihuana use in the Netherlands “is substantially lower than in countries waging a ‘war on drugs’, including the United States …. “132 Among Dutch youths 17-18 years old, only 17.7% used marihuana at least once in their lives, compared to 43.7% in the United States. In fact, overall, only 4.6% of the Dutch had used marihuana at least once in the past month, compared to 16.7% in the United States. 133

A dramatic comparison of the results of the Dutch and American policies can ‘be seen in comparing some statistical data between Amsterdam and Baltimore. Amsterdam, which has a population of about 700,000 had between 5,000 and 7,000 addicts, which yields a rate of between 714 and 1,000 hard core drug users per 100,000 population. Baltimore, with approximately the same population at 737,000, had at least 45,000 addicts, or 6,105 addicts per 100,000 population.134 In 1991, Amsterdam reported 20 residents dead from causes related to drug use, as compared to 269 reported in Baltimore.

Those who would maintain the current policy, though, point to other countries as well. For example, they note, in 1963, Great Britain instituted a policy of medical prescriptions to heroin addicts, but discontinued the policy in 1983 due to a 100% increase in the numbers of addicts and an increase in the crime rate, which was partially attributed thereto.135 Others point to the Swiss experiment in a Zurich park, which created a drug use zone. There the number of drug addicts increased from a few hundred in 1987 to over 20,000 by early 1992, of which about 20% were foreigners. In closing this experiment the authorities claimed an unacceptable increase in use, violence, crime and health costs. For another example, Spain and Italy, which have legalized the use of cocaine and heroin, but not distribution, have the highest rates of both drug use and overdose of all European countries.

Finally, at least in one state, Alaska, decriminalization of marihuana, which took place in 1975, was deemed to be a failure. Notwithstanding a reduction in the daily teenage marihuana use nationwide of 75% since 1978,136 in Alaska it increased to twice the national average. 137 In 1990, Alaska voted to recriminalize the use of marihuana. 138

But opponents of our current policy have their own examples to cite. They point to the experience of the states that decriminalized the possession of small amounts of marihuana for personal consumption in the 1970’S.139 There was no increase in the level of marihuana use in these states. l40 “Indeed marihuana consumption declined in those states just as it did in states that retained criminal sanctions against marihuana.”141 Similar results were experienced in the Netherlands, when marihuana consumption was decriminalized in 1976,142 and in the Australian state of South Australia, where that action was taken in 1985.143

The success of these programs has depended at least partially on law enforcement support.l44 Unfortunately, such support is unlikely in the United States because the bureaucratic side of the law enforcement establishment has substantial economic self-interest in a $14.1 billion pie. l45 One could cynically conclude that, although for different reasons, this puts the law enforcement community and traffickers in the same boat as far as the present discussion goes, i.e., both groups are opposed to legalization.

E. Is the Current Policy Basically Fair in Its Application?

Proponents of the current policy argue that, whatever problems in the current system, any change will work to the greater disadvantage of the least fortunate in society. Legalization, they argue, will lower the price of drugs. Since drug use among the poor is more sensitive to price reduction, a proportionately higher increase of persons in those groups will use drugs as a result of legalization. In other words, legalization will increase drug use most among the poor, and there is an obvious link in this country between being poor and being a racial minority. Thus, the poor generally, and racial minorities in particular, will feel the heaviest brunt of drug use’s physical harm to users, as well as the secondary costs of increased crime, accidents, and public nuisances.

Opponents of the current policy argue that it produces much more profound unfairness in society than any program of decriminalization or legalization would create.

First, prohibition’s enforcement has had a devastating impact on the rights of the individual citizen. The control costs are seriously threatening the preservation of values that are central to our form of government. The war on drugs has contributed to the distortion of the Fourth Amendment wholly inconsistent with its basic purposes. Particularly in the areas of search and seizure, we have seen major changes in the law brought about by Congress’ and the courts’ zeal to support the enforcement of drug prohibition. I will not make a full laundry list, but courts have allowed the issuance of search warrants in drug cases based on anonymous tips,l46 have put in jeopardy the attorney-client relationship through the forfeiture of fees,147 and have permitted the use of the grand jury to inquire into the attorneyclient relationship.l48 Some of the most egregious actions committed by the government have been in the area of forfeitures in which courts have allowed abuses which seriously undermine principles of legality and due process. 149

In the federal courts a regime established by Congress requiring the imposition of high mandatory minimum sentences and a series of nondiscretionary sentencing guidelines have caused a substantial number of individual injustices. In my opinion the rule of law is debased by the imposition of disproportionate criminal sanctions. 150

As a judge, I am also struck by how much of the penalties for drug trafficking are imposed on others than those most cUlpable. For example, the importation and selling of drugs is controlled by one set of people, but it is implemented by quite another, the so-called “mules,” often poor people, conscripted to smuggle or sell drugs by powerful organizations. Depending on the preferences of the prosecutors, they are charged, tried, and convicted in what may be a futile attempt to reduce their numbers -futile if, as I suspect, there is an inexhaustible supply of people willing to take a chance on drug dealing in order to make a little money. Although I would be the last to justify their commission of crimes for profit, the fact is that these people, who have little information to trade to the prosecutors, end up with heavy sentences, while in the scheme of things the “big fish,” if caught at all, are able to work out deals with the government which may leave them with light sentences or even without any prosecution. This is something that goes beyond mere injustice in the inequality of treatment, it is essentially an immoral outcome which tarnishes our entire judicial system.

In leaving this point, let me add what may sound like an exaggeration, but for which I invite your considered reflection. There are many cases in the history of humankind, some of recent vintage, in which citizens have been willing to give up their collective civil rights in the name of, and in exchange for, an illusory achievement of so-called law and order. Seen from one viewpoint, there undoubtedly was a large measure of law and order in Hitler’s Germany or Trujillo’s Dominican Republic. But in the long-run, the surrendering of fundamental principles in exchange for temporary peace has proven to be short-sighted. I do not say we have yet reached such a crossroads, but I do say to you that I detect considerable public apathy regarding the upholding of rights which have been cherished since this land became a constitutional Republic, when it comes to those accused of drug violations. Now I will grant you that people that sell drugs to children and the like are not very nice people, and I do not stand here or anywhere in defense of such heinous conduct. However, we must remember that we do not, and cannot, have one constitution for the good guys and another for the bad ones. Whenever we relax our fundamental standards to catch the latter, the net may have been stretched wide enough to include the former at some future date. I believe it is too high a price to pay, particularly in an attempt to patch the holes of an enforcement system that simply is not even working well.

Opponents also argue that the war on drugs has had a lopsided impact on minorities.151 The drug war has been a war “in which non-whites are arrested and imprisoned 4 to 5 times the rate of whites are, even though most drug crimes are committed by whites.”152 The racial impact of prohibition is further seen when one considers that one in three Mrican-American males are imprisoned or under penal supervision for drug offenses. 153

To these statistics we should add that “73,000 AfricanAmericans have drug related AIDS or have died from it. Among people who inject drugs, African-Americans are almost 5 times as likely as whites to be diagnosed with AIDS. And for MricanAmericans, the risk of getting AIDS is 7 times greater than the risk of dying from an overdose.”154 At the very least, legalization of drugs would eliminate or greatly reduce multiple-needle use, the principle cause of AIDS infection among Mrican-Americans.

IV. TENTATIVE CONCLUSIONS

In the end, we must remember that no important ideological battle has been won solely because one side has better statistics than the other. Moreover, there are limits to our prudent reliance on statistics. What the hard and social sciences proclaim as true in one age often turns out to be untrue based on further research. And thus we discard the policies based on those proclamations, only to find that additional research removes the scientific underpinnings for the new policies. Keep in mind, for example, that our society generally indulged alcohol consumption until fairly recently. Then the conventional medical wisdom began to counsel total abstinence, only to proclaim, even more recently, the benefits of moderate consumption, at least of red wine in avoiding heart attacks. And before the Surgeon General’s 1964 report on cigarettes, many authorities touted smoking’s benefit as helpful to relieving stress. Not too long ago, sociologists and criminologists had great faith that many criminals could be rehabilitated and thus Congress provided very few restrictions on the criminal sentences judges could impose, in order to let parole authorities determine when inmates should be released. In the last 15 years, that whole model has been discarded.

The current policy regarding illegal drugs has apparently been set in stone by Congress without any intention of engaging in any further assessment of the issues raised by prohibition. Thus, in 1988 we were told that: “The Congress finds 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 and the lives of our children, there can be no substitute for total victory.”155 This rhetoric was followed by a proclamation to the effect that: “It is the declared policy of the United States to create a Drug-Free America by 1995.”156 No one seems to have noticed the passing of this deadline without its inflexible goal being even approximated, much less reached.

We must avoid the comfortable assumption that if only we can gather and analyze enough data, we will find the solution to our problems. Empirical evidence sheds important light on whether the present policies are de facto ineffective, but it will take more than empirical evidence for the people of this country to decide whether current policies are inconsistent with the principles of a democratic society and whether our democratic society is capable of assessing the profound policy problems that face it.

There are several difficult questions that are not readily answered by most proponents of legalization or decriminalization, but which obviously are relevant to the problem. A nonexhaustive list includes:

What forms of governmental regulation, if any, are appropriate instead of prohibition? To what degree, if any, should private distribution of drugs be permitted? As to importation, what controls are appropriate? Is a regulatory regime similar to one now used to control alcoholic beverages appropriate for some, if not all, drugs? How should a new regulatory regime treat children, adolescents or pregnant women? What kinds of prevention and treatment programs should there be and how should they be funded?157

Much has to be considered and more answers should be available. Unfortunately, much of the public discussion of these issues has been shrouded in semi-hysteria not unlike the hysteria engendered by the McCarthy senatorial investigations about national security of the 1950’s.

I believe that Judge Martin Haines’ perceptive comments in an article in the New Jersey Law Journal are apropos:

[The] decades-long indoctrination of the public in the need for a drug war as the only solution to the very serious problem of drugs has had serious consequences. It has prevented the consideration of any clearly necessary, intelligent alternative to a war that has not worked. Few public officials dare to advance alternatives. Doing so threatens the loss of the next election, or the next appointment. 158

V. CONCLUSION

Based upon my experience as a judge and the relevant authorities that are quoted herein, the following are my tentative conclusions:

1. There is a mountain of conflicting evidence and views about the course to be taken. This demonstrates the imperative need for an objective multidisciplinary study to independently assess the facts, and recommend courses of conduct to be followed. This study should be carried out by a commission that is bipartisan, is appointed jointly by Congress and the Executive, and is composed of persons of unquestioned prestige. As part of this process there must be a truly national debate about this subject to create conscience and consensus about these problems. Most important, there is a need to keep an open mind about these issues. I59 Lastly, we must act upon the recommendations made by such a body. Our political leadership needs the courage to let the chips fall where they may and to deal with them once fallen. A national referendum by secret ballot might be an appropriate way of determining the issue of decriminalization.

2. There is a need for pilot tests of some types of limited decriminalization, probably commencing with marihuana, and obviously not including minors.160 Any such tests should be sensitive to the fact that in treating people differently, even for test purposes, their rights to due process and equal protection are not sacrificed. 161

3. Chronic abuse of illegal drugs should be treated in a fashion similar to other chronic diseases, like alcoholism, and countermeasures appropriate to such health problems should be implemented to a fuller extent.

4. Pending the definitive study proposed, there should be a shift in the funding of enforcement efforts toward an intense educational campaign at all levels.162 The availability of funds to escalate treatment levels aimed at rehabilitation should also be greatly increased.

VI. EPILOGUE

Two balloonists drifting over Maine came upon a farmer digging potatoes. They called down, asking him where they were, but the farmer appeared not to notice them and continued digging. They insisted, “Hey you, where be we?” Without missing a stroke or looking up, the farmer answered, “In a balloon, you damned fools!”

Are we in a balloon, floating in a dream above reality, without a notion as to where we are or where we are going?

* Chief Judge, United States Court of Appeals for the First Circuit.

1 CARLOS FuENTES, THE BURIED MIRROR: REFLECTIONS ON SPAIN AND THE NEW WORLD 8-9 (Houghton Mifllin Co. 1992).

2 I wish to thank Russell Wheeler for his insight and assistance in preparing this essay. No view or position stated or taken herein, however, should be attributed to him.

3 CODE OF CONDUCT FOR UNITED STATES JUDGES, Canons 2 and 3(6) [hereinafter CODE OF CONDUCT].

4 But see Robert W. Sweet, The War on Drugs Is Lost, NATL REV., Feb. 12, 1996, at 44.

5 CODE OF CONDUCT. supra note 3, Canon 4.

6 I should also point out that in describing government policy, what it has or has not accomplished, and whether it should be changed, we must keep in mind that drug use responds to numerous stimuli, public and private, including changing social mores, health prescriptions, demographics, and other similar factors.

7 These are status quo, legalization/decriminalization, preventive nonincarcerative sanctioning, treatment, taxation and regulation.

8 I define “psychoactive drug” as a substance, other than food, intended to affect the structure or function of the body. See Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 321(g)(l)(C) (1994); BLACK’s LAw DICTIONARY 497 (6th ed. 1990). By “psychoactive” is meant a drug that works directly in, and on, the brain to change the way it functions. See Steven Jonas, Solving the Drug Problem: A Public Health Approach to the Reduction of the Use and Abuse of Both Legal and Illegal Recreational Drugs, 18 HOFSTRA L. REV. 751, 756 n.31 (1990) (quoting NAT’L COMM’N ON MARIHUANA AND DRUG ABUSE, 2D REP., DRUG USE IN AMERICA: PROBLEM IN PERSPECTIVE 208 (1973)); THE NEW LEXICON WEBSTER’S DICTIONARY OF THE ENGLISH LANGUAGE 806 (1995).

9 Joan Beck, Smokers, Chill Out, Think of Your Poor Hearts, NEWS TRIB., April 18, 1994, at A6.

10 U.S. Drug Abuse Level Unchanged, Report Says, 109 PuB. HEALTH REP. 829 (1994), available in LEXIS, News Library, ASAPII File.

11 DRUGS & CRIME DATA CENTER & CLEARINGHOUSE, FACT SHEET: DRUG USE TRENDS 1 (1996) [hereinafter DRUG USE TRENDS].

12 BUREAU OF THE CENSUS, U.S. DEP’T OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES: 1995, at 764 tb1.1262 (115th ed. 1995) [hereinafter STATISTICAL ABSTRACT].

13 Id.

14 Arnold S. Trebach, For Legalization, in ARNOLD S. TREBACH & JAMES A INCIARDI, LEGALIZE 111: DEBATING AMERICAN DRUG POLICY 1, 110 (1993) [hereinafter LEGALIZE 111].

15 STATISTICAL ABSTRACT, supra note 12, at 468 tbl. 721.

16 Id. at 142 tb1.217.

17 Id.

18 Id. The specific figures were 73.2% in 1974, 91.5% in 1979, 89.2% in 1985, 88.6% in 1988, and 88.7% in 1993. [d.

19 DRUG USE TRENDS, supra note 11, at 1 tbl.l. This data includes use of marihuana, cocaine, hallucinogens, inhalants, heroin, nonmedical use of sedatives, tranquilizers, stimulants, or analgesics. [d. See also OFFICE OF NAT’L DRUG CONTROL STRATEGY, EXECUTIVE OFFICE OF THE PRESIDENT, THE NATIONAL DRUG CONTROL STRATEGY: 1996, at 77 tb1.5-1 (1996) (showing a decrease of from 24.8 to 11.7 million in illicit users, a 52.8% decrease for the same period, 1979-1993).

20 DRUG USE TRENDS, supra note 11, at 1 tbl. 11 (past thirty-days use).

21 Id. at 2 fig.l, 5 fig.l.

22 Id.

23 Id.

24 Id. at 2 fig.2, 5 fig.2.

25 Id.

26 Id.

27 STATISTICAL ABSTRACT, supra note 12, at 142 tb1.217.

28 Id.

29 Steven B. Duke, Drug Prohibition: An Unnatural Disaster, 27 CONN. L. REV. 571, 574 (1995).

30 DRUGS & CRIME DATA CENTER & CLEARINGHOUSE, FACT SHEET: DRUG DATA SUMMARY 5 (June 1995) [hereinafter FACT SHEET]. This figure is now at about $14 billion annually. Id. See also Kurt Schmoke, The War on Drugs Is Lost, NAT’L REV., Feb. 12, 1996, at 40, 41.

31 BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS – 1993, at 352 tb1.3.107 (Kathleen Maguire & Ann L. Pastore eds., 1994).

32 See id. at 489 tbI.5.17, 633 tbI.6.70. In 1995, there were approximately 100,000 federal inmates, of which 61.4% were convicted of drug law violations (up from 25% in 1980). FEDERAL BUREAU OF PRISONS, U.S. DEP’T. OF JUSTICE, A JUDICIAL GmDE TO THE FEDERAL BUREAU OF PRISONS – 1995, at 5 (1995) [hereinafter JUDICIAL GUIDE].

33 JUDICIAL GUIDE, supra note 32, at 37. Federal prison authorities frankly state that “[i]t is particularly unrealistic to expect prison programs to effectively change inmates for the better given the context in which they operate: a setting defined by deprivation of society’s freedoms.” Id. at 53.

34 Michael Tonry, Race and the War on Drugs, 1994 U. CHI. LEGAL F. 25, 26. The Federal Bureau of Prisons in 1994 estimated this figure at $58.50/day or $21,3521year. See JUDICIAL GUIDE, supra note 32, at 5.

35 Tonry, supra note 34, at 27.

36 Ethan A. Nadelmann, Drug Prohibition in the United States: Costs Conse· quences, and Alternatives, 245 SCI. 939, 940 (1989).

37 BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, DRUG AND CRIME FACTS 8 (1991) [hereinafter FACTS].

38 Id. at 9.

39 BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, PRISONERS IN 1992, at 10 (1993).

40 See Doug Bandow, War on Drugs or War on America?, 3 STAN. L. & POLly REV. 242, 245 (1991).

41 Statement of Louis J. Freeh, Director of the F.B.I., before the House of Representatives’ Subcommittee on Crime (March 30, 1995).

42 Alcohol, Drug Abuse, Smoking Account for $77 Billion, Report Says, Bu. REAU OF NATL AFFAIRS MGMT. BRIEFING DAILY, Feb. 14, 1995 [hereinafter Bu. REAU OF NATL AFFAIRS].

43 DRUG USE TRENDS, supra note 11, at 5. This amount is included within the total $12.2 billion total spent by the federal government on drug control in 1994.Id.

44 Smoking-Attributable Mortality and Years of Potential Life Lost – United States, 1988, 40 MORBIDITY AND MORTALITY WKLY. REP. 62 (1991), available in LEXIS, News Library, ASAPII File.

45 Death Toll from Smoking is Worsening, NY TIMES, Feb. 1, 1991, at A14.

46 Beck, supra note 9.

47 BUREAU OF NAT’L AFFAIRS, supra note 42.

48 FEDERAL TRADE COMMISSION, REPORT TO CONGRESS FOR 1993, PuRsUANT TO THE FEDERAL CIGARETTE LABELING AND ADVERTISING ACT (1995). [hereinafter FEDERAL TRADE COMMISSION]

49 Gary Rotstein & Lawrence Walsh, Teens are Lighting Up Despite Health Risks, Cost and Smell. Youthful Smoker: All My Friend Do It, PITTSBURGH POST-GAZETTE, July 21, 1995, at AI.

50 FEDERAL TRADE COMMISSION, supra note 48. Television and radio advertising was prohibited effective January 1, 1971. 15 U.S.C. § 1335 (1982) (prohibit ing cigarette advertisements on any medium of electronic communication over which the Federal Communications Commission has jurisdiction).

51 James A. Inciardi, Against Legalization of Drugs, in LEGALIZE IT?, supra note 14, at 139, 160 (citation omitted).

52 Id. (citation omitted).

53 Id. (citation omitted).

54 Cristine Russell, Taxing Vices; Wringing More Dollars from Alcohol, Tobacco Sales, WASH. POST, Oct. 30, 1990, at Z7.

55 Inciardi, supra note 51, at 160 (citation omitted).

56 BUREAU OF NAT’L AFFAIRS, supra note 42. Of $66 billion spent annually by the federal government on health care and disability costs associated with alcohol, tobacco and drug use, 18% were for alcohol’s costs ($11.88 billion), 16% for drug abuse ($10.56 billion) and 66% for tobacco use ($43.56 billion). Id.

57 BUREAU OF JUSTICE STATISTICS, CORRECTIONAL POPULATION IN THE UNITED STATES 1986 (1989), at 39.

58 See Center for Sci. in the Pub. Interest, New CSPI Study Details Dramatic Decline in Alcoholic-Beverage Advertising (June 26, 1995). But compare Atkin, Effects of Televised Alcohol Messages on Teenagers Drinking Patterns, 11 JoUR. AoOLESC. HEALTH CARE 10-24 (1990), which claim the amount spent in advertising in 1990 to have been $2 billion.

59 Beer Institute Refutes CSPI Report Linking Advertisement and Alcohol Abuse; Center for Science in the Public Interest, MOD. BREWERY AGE, July 17,1995, at 1, available in LEXIS, News Library, ASAPII File.

60 Mark A. Kleiman & Aaron J. Saiger, Drug Legalization: The Importance of Asking the Right Question, 18 HOFSTRA L. REV. 527, 565 (1990).

61 Trebach, supra note 14, at 79.

62 Id.

63 Edwin Meese III, Drugs, Change and Realism: A Critical Evaluation of Proposed Legalization, in SEARCHING FOR ALTERNATIVES: DRUG CONTROL POLICY IN THE UNITED STATES 283, 290 (Melvyn B. Krauss & Edward P. Lazear eds., 1991) [hereinafter SEARCHING FOR ALTERNATIVES]; see also Inciardi, supra note 51, at 161.

64 A former Assistant Secretary of State for International Narcotic Matters defends the federal government’s drug policy as working on both the supply and demand sides. See Melvin Levitsky, US. Efforts in the International Drug War, in SEARCHING FOR ALTERNATIVE, supra note 63, at 360, 375; see also Inciardi, supra note 51, at 161.

65 Information received from a private interview with highly placed DEA officials. It is estimated that less than 10% of the drug contraband into the United States is interdicted. See Robert Clifton, Decriminalization of Drugs, 32 CT. REV. 14, 15 (Winter 1995).

66 Ronald D. Ostrow, Reno Questions Funding of Drug Interdiction Efforts, LA TIMES, May 8, 1993, at A2.

67 James Ostrowski, The Moral and Practical Case for Drug Legislation, 18 HOFSTRA L. REV. 607, 647 (1990). It is estimated that at least 40% of all property crime in the United States is committed by illegal drug users to support their habits. Id.

68 Stephen J. Schulhofer, Solving the Drug Enforcement Dilemma: Lesson from Economics, 1994 U. CHI. LEGAL F. 207, 212.

69 Joseph D. McNamara, The War on Drugs Is Lost, NAT’L REV., Feb. 12, 1996, at 42, 42.

70 Id.

71 Defined as “those who have used the drug at least once a week in the preceeding week.” William F. Buckley Jr., The War on Drugs Is Lost, NAT’L REV., Feb. 12, 1996, at 35, 36.

72Id.

73 See Schulhofer, supra note 68, at 225.

74 See, Ethan A. Nadelmann, Beyond Drug Prohibition: Evaluating the Alternatives, in SEARCHING FOR ALTERNATIVES, supra note 63, at 241, 243.

75 Sweet, supra note 4, at 44.

76 Katherine Bishop, New Front in Marijuana War: Business Records, NY. TIMES, May 24, 1991, at B6.

77 See generally Albert DiChiara & John F. Galliher, Dissonance and Contradiction in the Origin of Marihuana Decriminalization, 28 L. SOc’y REV. 41, 42 (1994).

78Id. at 45.

79Id.

80 Lester Grinspoon & James B. Bakalar, The War on Drugs – A Peace Proposal, 330 NEW ENG. J. MED. 357, 357 (1994).

81 Todd R. Clear, ‘Tougher’Is Dumber, NY. TIMES, Dec. 12, 1993, at 21.

82 MARsHA ROSENBAUM, JUST SAY WHAT? AN ALTERNATIVE VIEW ON SOLVING AMERICA’S DRUG PROBLEM (1990).

83 Peter Reuter, On the Consequences of Toughness, in SEARCHING FOR ALTERNATIVES, supra note 63, at 138, 151.

84 Steven Jonas, The Drug War: Myth, Reality and Politics, 27 CONN. L. REV. 623,633-37 (1995); see also Karst J. Besteman, War Is Not the Answer, 32 AM. BEHAVIORAL SCI. 290, 292 (1989).

85 See, e.g., Sweet, supra note 4, at 44; Thomas Szasz, The War on Drugs Is Lost, NAT’L REV., Feb. 12, 1996, at 45.

86 See generally Mark A.R. Kleiman, The Optimal Design of Drug-Control Laws, in SEARCHING FOR ALTERNATIVES, supra note 63, at 193.

87 Joel W. Hay, The Harm They Do to Others: A Primer on the External Costs of Drug Abuse, in SEARCHING FOR ALTERNATIVES, supra note 63, at 200, 215.

88 Hay, supra note 87; see also Robert E. Peterson, Legalization: The Myth Exposed, in SEARCHING FOR ALTERNATIVES, supra note 63, at 324, 324. ‘

89 Trebach, supra note 14, at 19 (quoting, Milton Friedman Talks about Liberty and Drug Policy, THE DRUG POLICY LETTER, Winter 1992, at 4).

90 See “War on Drugs” Seen as a Threat to Constitution, Minorities, CRIM. L. REP., Sept. 4, 1991, at 1477.

91 The German courts have held it is 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 marihuana and hashish. Stephen Kinzer, German Court Allows Possession of Small Amounts of Marijuana, N.Y. TIMES, May 3, 1994, at A12. For a similar analysis, see LAWRENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAw § 15-7, at 1325-26 (2d ed. 1988).

92 Schmoke, supra note 30, at 40.

93 Milton Friedman, The War We are Losing, in SEARCHING FOR ALTERNATIVES, supra note 63, at 53, 55-57.

94 Committee on Drugs and the Law, Ass’n of the Bar of the City of N.Y., A Wiser Course: Ending Drug Prohibition, 49 THE RECORD 521, 544 n.93 (1994) (quoting James Ostrowski, Thinking about Legalization, CATO INSTITUTE POLICY ANALYSIS No. 121, May 25, 1989, at 1) [hereinafter A Wiser Course].

95 See Ostrowski, supra note 67, at 650.

96 Trebach, supra note 14, at 120.

97 Id.

98 Id.

99 Friedman, supra note 93, at 67. The average homicide rate during the 1950’s was 4.8 per 100,000 population; 5.7 in the 1960’s; 7.5 in the 1970’s; and 9.1 in the 1980’s. Id. at 56 fig.3.I.

100 See McNamara, supra note 69, at 43.

101 [Editor’s note: Ultimately, the lower house of the Colombian Congress voted to absolve President Ernesto Sam per of charges that his election was finanaced by drug money. See Douglas Farah, Colombian House Absolves Samper; Exoneration of Embattled President Seen Prolonging National Crisis, WASH. POST, June 13, 1996, at A 22.].

102 Franklin E. Zimring & Gordon Hawkins, The Wrong Question: Critical Notes on the Decriminalization Debate, in SEARCHING FOR ALTERNATIVES, supra note 63, at 3, 19 (quoting OFFICE OF THE NAT’L DRUG CONTROL STRATEGY, NAT’L DRUG CONTROL STRATEGY 2 (1989).

103 Arrest for simple possession of marihuana is the fourth most common cause of arrest in the United States. Grinspoon & Bakalar, supra note 80, at 357 n.2.

104 Alcohol taxes collected in 1994 totaled $144:4 billion ($6.8 billion for domestic alcohol excise taxes, $27 billion on inventories held, and $110.6 million special occupational tax) and approximately $8.4 billion in tobacco taxes ($5.8 billion in tobacco excise taxes and $2.6 million in floor stock 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).

105 See Inciardi, supra note 63, at 198.

106 Buckley, supra note 71, at 37.

107 E. Leong Way, Pharmacologic Assessment of Dependence Risks, in SEARCHING FOR ALTERNATIVES. supra note 63, at 390, 396.

108 Avram Goldstein, Drug Policy: Some Thoughts About Striking the Right Balance, in SEARCHING FOR ALTERNATIVES, supra note 63, at 398, 400.

109 Inciardi, supra note 51, at 166 (citations omitted).

110 Id. at 167.

111 See Trebach, supra note 14, at 120.

112 Mitchell S. Rosenthal, The Logic of Legalization: A Matter of Perspective, in SEARCHING FOR ALTERNATIVES, supra note 63, at 226, 233-34.

113 Lester Grinspoon, Marijuana in a Time of Psychopharmacological MacCarthyism, in SEARCHING FOR ALTERNATIVES, supra note 63, at 379, 379-97.

114 Schmoke, supra note 30, at 40-41 (noting the success of Baltimore’s needle exchange program in reducing the spread of AIDS).

115 See infra text accompanying note 152.

116 William E. McAuliffe, Health Care Policy Issues in the Drug Abuse Treatment Field, 15 J. HEALTH POL. POL’y & L. 357, 362 (1990).

117 Mark H. Moore, Actually, Prohibition was a Success, NY. TIMES, Oct. 16, 1989, at A21.

118 See the Journal of the American Academy of Arts and Sciences, Summer, 1992.

119 Trebach, supra note 14, at 109-10.

120 See Michael Grossman et aI., Rational Addiction and the Effect of Price on Consumption, in SEARCHING FOR ALTERNATIVES, supra note 63, at 77, 77,81 (citing a study of cigarette addiction and concluding that addictive substances are very responsive to price.); but see Jeffrey A. Miron, Drug Legalization and the Consumption of Drugs: An Economist’s Perspective, in SEARCHING FOR ALTERNATIVES, supra note 63, at 68, 74-75 (contending that data from the Prohibition era leads to the conclusion that drug legalization will cause only a small increase in drug usage). Findings produced by a 1990 nationwide drug opinion poll commissioned by the Advisory Board of the Drug Policy Foundation suggested that “the worst-case scenario seems to be that 9.6 percent of the adult population might try marijuana and 1.7 percent might try cocaine after repeal of prohibition, based on combining the answers of those who have tried the drugs with those who have not.” Trebach, supra note 14, at 108.

121 Paul Taubman, Externalities and Decriminalization of Drugs, in SEARCH. ING FOR ALTERNATIVES, supra note 63, at 90, 106.

122 After the repeal of Prohibition, consumption of alcoholic beverages increased by substantial amounts. See generally BEYOND THE SHADOW OF PROHIBI. TION (Mark H. Moore & Dean R. Gerstein eds. 1981).

123 See supra p. 14 tbI.2.

124 Marcel de Kort, The Dutch Cannabis Debate, 24 J. DRUG ISSUES 417 (1994).

125 Marlise Simons, Drug Floodgates Open, Inundating the Dutch, N.Y. TIMES, April 20, 1994, at A4; see also Dirk J. Korf, Drug Tourists and Drug Refugees, in BETWEEN PROHIBITION AND LEGALIZATION: THE DUTCH EXPERIMENT IN DRUG POLICY 119 (Ed. Leuw & I. Ham Marshall eds., 1994) [hereinafter BETWEEN PROHIBITION AND LEGALIZATION].

126 Koert Swierstra, The Development of Contemporary Drug Problems, in BETWEEN PROHIBITION AND LEGALIZATION, supra note 125, at 97, 116.

127 Introduction to BETWEEN PROHIBITION AND LEGALIZATION, supra note 125, at vii, vii.

128 Id. at ix.

129 Id.

130 Id.; see also Frieder Dunkel, The Development of Drug Related Crime and Drug Control in Germany, 16 INT’L J. COMPo & APPLIED CRIM. JUST. 1 (1992).

131 Ethan A. Nadelmann, The War on Drugs Is Lost, NAT’L REV” Feb. 12, 1996, at 38, 39.

132 A Wiser Course, supra note 94, at 548.

133 Id. at 548-49.

134 See The Drug Policy Letter, November, 1993.

135 DRUG ENFORCEMENT ADMINISTRATION, U.S. DEP’T OF JUSTICE, DRUG LEGALI. ZATION: MYTHS AND MISCONCEPI’IONS (1994); but see HORAY FREELAND JUDSON, HEROIN ADDICTION IN BRITAIN: WHAT AMERICANS CAN LEARN FROM THE ENGLISH EXPERIENCE (1974).

136 Robert E. Peterson, Legalization: The Myth Exposed, in SEARCHING FOR ALTERNATIVES, supra note 63, at 324, 328.

137 Id.

138 Id.

139 A Wiser Course, supra note 94, at 525.

140 Except in Alaska. See supra text accompanying note 137.

141 A Wiser Course, supra note 94, at 548 (note omitted).

142 Id. See also Henk Jan van Vliet, The Uneasy Decriminalization: A Perspective on Dutch Drug Policy, 18 HOFSTRA L. REV. 717, 737 (1990).

143 J.P. Morgan et al., Cannabis: Legal Reform, Medicinal Use and Harm Reduction, in PSYCHOACTIVE DRUGS AND HARM REDUCTION (Nick K. Heather ed. 1993).

144 DiChiara & Galliher, supra note 77, at 70.

145 Morgan et al., supra note 143.

146 See, e.g., Illinois v. Gates, 462 U.S. 213, 230 (1983) (upholding warrant issued based on a partially corroborated anonymous tip, and noting in dicta that an anonymous tip or letter of “sufficient detail” based on the “totality of the circumstances,” could by itself support a finding of probable cause); United States v. Johnson, 64 F.3d 1120, 1125 (8th Cir. 1995) (noting that if an anonymous tip is predictive in nature, if the prediction is true, the tip is corroborated sufficiently to create reasonable suspicion to justify a search); United States V. Williams, 3 F.3d 69, 72 (3d Cir. 1993) (emphasizing fact that anonymous informant was the housekeeper justifies police reliance in her information in affidavit to obtain warrant); United States v. Bishop, 890 F.2d 212, 216- 17 (10th Cir. 1989) (upholding FBI agents’ obtaining of warrant based on anonymous tip under the “good faith exception” adopted by the Supreme Court in United States v. Leon, 468 U.S. 897 (1984»; United States V. Martinez, 764 F.2d 744, 745 (10th Cir. 1985) (affirming under the “totality of the circumstances” a magistrate’s finding of probable cause to issue a search warrant based on an anonymous tip).

147 See, e.g., United States V. Nichols, 841 F.2d 1485, 1505 (10th Cir. 1988) (construing provisions of the Comprehensive Forfeiture Act of 1984 as allowing the freeze of assets needed to pay for a defendant’s counsel of choice); In re Forfeiture Hearing as to Caplin & Drysdale, 837 F.2d 637, 646 (4th Cir. 1988) (en banc).

148 In re Grand Jury Subpoenas, 906 F.2d 1485, 1498 (10th Cir. 1990) (concluding that attorney fee information regarding representation of instant drug defendants is not subject to the attorney-client privilege and its disclosure does not violate relators’ clients’ right to counsel); United States V. Saccoccia, 898 F .. Supp. 53, 62 (D.R.I. 1995) (concluding that the government should be allowed to depose counsel and require that they produce relevant documents for the purpose of determining the amount, form and source of payments made to counsel in connection with representation of drug defendants).

149 See In re Application of Michael J. Kinsely, 802 F.2d 571 (1st Cir. 1986).

150 See Trebach, supra note 14, at 29-30.

151 SPECIAL COMMI’ITEE ON THE DRUG CRISIS, ABA, NEW DIRECTION FOR NA. TIONAL SUBSTANCE ABUSE POLICY 15 (1994); see also James Ostrowski, Answering the Critics of Drug Legalization, in SEARCHING FOR ALTERNATIVES, supra note 63, at 297, 315.

152 McNamara, supra note 69, at 43; PUB. HEALTH SERV., U.S. DEP’T OF HEALTH AND HUM. SERVS., SUBSTANCE .ABUSE AND MENTAL HEALTH STATISTICS SOURCEBOOK 62 (1995) (in 1993 illicit drug users were 74% white, 14% black and 9% Hispanic).

153 McNamara, supra note 69, at 43.

154 Schmoke, supra note 30, at 41.

155 Anti-Drug Abuse Act of 1988, 21 U.S.C. § 1501 note (1994).

156 Id. § 1502 note.

157 A Wiser Course, supra note 94, at 525 (note omitted).

158 Martin Haines, Drug War: America’s War of Self Deception, N.J.L.J., June 21, 1993, at 20.

159 See Anthony Lewis, Futility of the Drug War, N.Y. TIMES, Feb. 5, 1996, at All.

160 See generally NAT’L RESEARCH COUNCIL, AN ANALYSIS OF MARIHUANA POLICY (1982), noted in Trebach, supra note 14, at 105-06.

161 See EXPERIMENTATION IN THE LAW: REPORT OF THE FEDERAL JUDICIAL CENTER ADVISORY COMMITTEE ON EXPERIMENTATION IN THE LAw (1981).

162 See Schulhofer, supra note 68.