Criminalization of Drug Use

 by Joseph D. McNamara, D.P.A.

 Psychiatric Times September 2000 Vol. XVII Issue 9

The average American's image of drug users is that of dangerous young people of color-males who will rob them to obtain money to buy drugs or female prostitutes spreading disease and delivering crack babies as a result of enslavement to drugs. These cherished misconceptions are the enduring and erroneous foundations of the ill-conceived "war on drugs."

Actually, the overwhelming majority of American drug users have historically been Caucasians. The fact that minorities are arrested and incarcerated at vastly disproportionate rates for drug offenses contributes to false stereotypes and permits the continuation of one of the most irrational public policies in the history of the United States. Blacks make up approximately 15% of America's drug users, but more than one-third of adults arrested for drug violations are black.

Furthermore, relatively few of America's estimated 80 million illegal drug users go on to commit other crimes. In fact, the majority of policemen I hired during my 18 years as police chief in two of the largest cities in America had used illegal drugs. They did not commit other crimes and grew out of their early drug use.

Yet I can remember, some 40 years ago, as a young policeman in Harlem, gathering in the bar with my colleagues after work listening to them complain vigorously about the junkies who made our work so difficult. During our discussions, we drank prodigious amounts of beer without the slightest awareness we were consuming a drug that could be as lethal as heroin. In fact, more of my fellow policemen died in driving accidents after these drinking sessions than were slain in the line of duty.

Even today, 85 years after the federal government first outlawed narcotics, public and police attitudes toward the dangerousness of drugs are shaped by ignorance of their impact and by mistaken prejudices regarding their users. These are the same irrationalities that led to the criminal prohibition of certain drugs. Individuals taking Prozac (fluoxetine), Valium (diazepam) or other psychoactive prescription drugs are regarded as patients. Yet millions of our own citizens using heroin, cocaine or marijuana have been, and are still regarded as dangerous enough to be caged in brutal prisons, frequently under mandatory sentences more characteristic of a totalitarian society than a democracy.

The impetus for the passage of the Harrison Narcotic Act of 1914 came from the lobbying efforts of the American missionary societies in China. These groups enlisted the aid of other alcohol temperance organizations and religious groups in the United States to get their version of sin written into the penal code. The anti-drug arguments in Harrison were replete with statements claiming that it was the duty of whites to save the inferior races. Those moving to criminalize drugs made references to Negroes under the influence of drugs murdering whites, degenerate Mexicans smoking marijuana and "Chinamen" seducing white women with drugs. This racist nonsense would be laughed at today, but it was quite influential in the passage of anti-drug legislation.

David Musto, M.D., the renowned drug historian and professor of child psychiatry and the history of medicine at Yale University School of Medicine, wrote in The American Disease: Origins of Narcotics Control, "Consequently, the story of the Harrison Act's passage contains many examples of the South's fear of the Negro as a ground for permitting a deviation from the strict interpretation of the Constitution." Musto also noted that opium use in the United States had been declining for about 16 years before the federal government saw fit to outlaw it.

The Harrison Narcotic Act of 1914 represented a gross departure from past federal practice of not interfering with state police powers. The racist arguments convinced Southern representatives, who were reluctant to acknowledge federal power over states' rights, to vote for the act. Congressional uneasiness over the law's constitutionality caused it to label the act a revenue measure, but in 1925, the U.S. Supreme Court correctly interpreted it as a penal statute, making it the cornerstone of laws leading to the present "war on drugs."

It is one of the ironies of history that national black political leadership today paradoxically accepts the racist implications of white Southern politicians in 1914: that Negroes were especially susceptible to the negative impact of drug use. With the notable exception of Kurt Schmoke, former mayor of Baltimore, who called for the medicalization of drug use, many African-American politicians describe decriminalization of drugs as racial genocide, thus subliminally reinforcing fears that people of color are more susceptible to drug use and the harm it can cause.

The Harrison Act was a remarkably radical change in public policy. Racism, religious pressure and an elitist concern to ensure that the lower classes were protected from temptations to lead "immoral" lives prevailed over the promises of the Declaration of Independence.

During roughly the first 130 years of our nation's history, at least under national law, the right to life, liberty and the pursuit of happiness included the right to ingest whatever chemicals one wished. These rights were not simply an omission by Thomas Jefferson, who penned the immortal words of the declaration and later chastised France for passing laws regulating diet and medicine. Jefferson said that a government that controlled what food people could eat and the kind of medicine they took would soon try to control what people thought.

That may sound far-fetched, but only a few months ago the Clinton White House was embarrassed when a journalist disclosed that the government had been secretly paying television networks, magazines and newspapers to covertly insert "correct" material on drug use for our education.

Since 1914, American drug control efforts have ebbed and peaked. However, a sea change occurred in 1972 when Richard Nixon saw a political advantage in telling the citizenry that a war against drugs was necessary. The federal budget for the war was roughly $101 million that year. Presently, it is around $17 billion a year. By comparison, the average monthly Social Security check in 1972 was $177. If, however, Social Security benefits had increased at the same rate as drug war spending, today's check would be around $30,000 a month. The annual cost of the drug war exceeds $40 billion a year when state and local costs are added to federal costs.

The magnitude of increase and paucity of positive results have recently begun to discomfit some of the leading academic supporters of the drug war. A major focus of government strategy has been to reduce foreign production of illegal drugs. Yet, a dozen years after the U.S. Congress proclaimed that we would have a drug-free America by 1995, opium production has doubled in Southeast Asia and cocaine crops have increased by a third in Central and South America. Periodic government announcements of crises of methamphetamine, ecstasy and other designer drug use, increasingly being manufactured in Mexico and domestically, are intended to mobilize more public support for the drug war. What they further illustrate, however, is the hopelessness of attempts by the United States to reduce world drug production. Simultaneously, the government is forced to concede that despite interdiction efforts, 90% of the drugs that arrive in the United States are undetected.

The United States, as well as most of the world, is awash in illegal drugs, the violence of the illegal drug black market, and unprecedented police and political corruption resulting from the extreme mark-up caused by the prohibition of cheaply produced chemical substances.

The sheer irrationality of continuing to expand a policy doomed to failure begs an explanation. A Jihad comes to mind-a holy war that must be fought regardless of the resulting human horrors. Thus, some scholars who can no longer ignore the inevitable failure of past practices now proclaim a new solution, which the government is eagerly embracing. The phrase coerced abstinence is the practice of continuously drug-testing convicted criminals (and eventually, in all probability, many others) through special drug courts, to detect the presence of illegal drugs in their bodies. Judges, traditionally functioning as impartial legal experts during trials to guarantee due process of law, will now become shamans taking on the responsibilities of judging who is falling under evil spells. We will have legions of real-life television "Judge Judys" routinely denouncing and incarcerating people not on the basis of what they did, but because certain chemicals are present in their urine.

Scholars who know well the difference between correlation and causation have casually disregarded two axioms of behavioral science by advancing coerced abstinence as new when, in fact, it is the same old demonization of certain drugs present in our culture and the same dehumanization of their users. First of all, many individuals convicted of crime do have a history of previous use of illegal drugs. But high correlations of illegitimacy, illiteracy, extreme poverty, lack of health care, child abuse, failure in school, smoking, gambling, unhealthy diets, poor employment history and a host of other variables are also present in criminal populations. Drug use as the sole explanation for criminal behavior is no more persuasive than these other characteristics. Secondly, experts know that past behavior, including the use of certain chemicals, cannot be used to accurately predict the future behavior of a particular individual.

America's drug war has always trifled with science. But the assumption that the presence alone of a particular chemical in a person's bloodstream is cause for imprisonment replaces the fundamental American right of presumption of innocence with the police-state mentality of assumed guilt. Nevertheless, we should not worry. The people in jail cells are not prisoners, just patients undergoing the new therapy of coerced abstinence. --