"THE AMERICAN SYSTEM":

LEGAL SANCTIONS TO REPRESS DRUG ABUSE

by

RUFUS KING

from:

Volume 11. Sage Criminal Justice System Annuals 

DRUGS AND THE CRIMINAL JUSTICE SYSTEM

JAMES A. INCIARDI and CARL D.CHAMBERS,  Editors

 SAGE Publications Beverly Hills - London

Chapter I

 Though drug misuse seems self-evidently a problem which ought to belong in the individual and personal category, and though drug addiction ought to lie deep in the domain of medical authorities, no understanding of the contemporary drug scene in the United States can be achieved without focusing principally on the history of the legal role over the past hundred years.

It would have been very hard, a century ago, to find any basis in our great national charter forced interference with the drug-taking habits of citizens of this republic. If limitations of the First Amendment (self-expression), the Fifth (due process), or the Eighth (inappropriate punishment) had not sufficed to keep Uncle Sam from arrogating to himself the role of drug-cop, there yet remained the Ninth (preserving rights "retained by the people") and Tenth (reserving all powers not expressly "delegated to the United States" for the states or the people). Furthermore, when militant anti-alcohol forces triumphed in their campaign to use federal authority to enforce National Prohibition against intoxicating beverages, it was accepted by all concerned that only a specific constitutional amendment could authorize this.

Yet simultaneously the nation was saddled with a prohibition commitment against opiates and coca products that has been fanatically pursued by federal enforcers ever since. In this instance, at least, ambitious lawmakers and empire-building policemen appear to have created social attitudes instead of, as the system is supposed to Work, merely reflecting and responding to them.

BACKGROUND

Opium-smoking and opium-eating never took much hold in America in colonial days or during the eighteenth and nineteenth centuries, though the drug was a popular medicine of many uses and universally available at low cost (Terry and Pellens, 1928). The pipe habit was well known from the accounts of missionaries and flourished among Chinese laborers brought to the Far West in the railroad-building era (1840-60), but the "opium den" emerged mainly as a feature of dime-novel fantasies. San Francisco led off with the first anti-smoking ordinance in 1875.

Opium had been known through most of the Eastern Hemisphere from antiquity, and indeed even since the appearance of wonder-drugs in this century it (morphine) has remained among the medical profess-ion's most general and effective analgesic prescriptions. Morphine was isolated around 1806, codeine in 1832, and the first effective hypodermic was developed in 1845. During the Civil War opium and morphine were in such demand to control dysentery and ease the suffering of wounded soldiers that addiction among veterans was tolerantly known as "the Army disease."

Heroin was refined from morphine base in 1898. As with other innovations in this field, some medical men hailed it as the long-awaited panacea, a non-addicting substance and therefore suitable as a "cure" for morphinism and alcoholism. Cocaine was first produced in 1883, found limited acceptance as an anesthetic and analgesic, and commenced to be abused on a small scale. Cocaine sniffing was an exotic practice largely associated in the public mind with prostitutes and denizens of the underworld. Principal American familiarity with the coca plant came from its use as an ingredient in the nation's most popular soft drink.

By the turn of the twentieth century drug abuse, principally addiction to opiates, had become widespread enough to cause mild concern. (But let us note here, once and for all, that coffee, tea, alcohol, and nicotine are drugs too, by every definition, and that at least the latter two are now sickening and killing Americans on a scale not even significantly relatable to the alleged ravages of heroin [Brecher, 1972].) Patent medicines, popular tonics, and even soothing potions for children were loaded with opium (and alcohol). Though estimates of the addict population in the early 1900s varied as widely as they do today, the most respected observers (Kolb and DuMez, 1924) set the figure for this period in the range of 200,000. Victims were believed to be preponderantly female, middle-aged, white, Southern, rural, and from privileged or middle classes.

No one then dreamed of associating drug abuse with criminality.

A vigorous campaign led by the American Medical Association resulted in the first federal Food mid Drug Act (Act of June 30, 1906, P.L. 59-384, 34 Stat. 768), which required drug manufacturers who made use of interstate commerce to disclose the ingredients in their products by appropriate labeling. Many states paralleled this with laws imposing modest controls, including prescriptions. registration, and record-keeping in connection with the sale of opiates and cocaine (Kremers and Urdang, 1963). But the ubiquitous intent was merely to draw the traffic in these substances into observable channels, to make it easier for the medical professions and public health authorities to cope with problems of abuse as they arose.

The first federal control enactment, the Harrison Narcotics Act of 1 914 (Act of December 17, 1914, P.L. 63-223, 38 Stat. 785), relied upon a then extraordinary extension of the federal tax power to require manufacturers, distributors, and dispensers of opiates and coca products to register with the Treasury Department and to keep records of transactions involving these substances. But besides this purpose, likewise merely to help bring the traffic into manageable channels, the Harrison Act was Congress' response to pressures that had been generated from quite another direction.

The United States stumbled into its role as drug-abuse repressor at home largely because of its somewhat wobbly first steps as colonialist and emerging Great Power abroad.

Responsibility for having deliberately addicted the Chinese to opium falls most heavily on the British East India Company, which took over a monopoly of Indian opium production (the main source for the China trade) from the Great Mogul in 1757. Chinese emperors resisted futilely with anti-smoking and anti-opium edicts, but as the demand for tea, silks, spices, and Chinese artifacts soared in the clipper era, Western traders, including some of our Yankee ancestors, pressed relentlessly to expand and exploit the counterbalancing opium market in the Flower Kingdom (Collis, 1946).

The Chinese fought two Opium Wars, in intermittent episodes between 1840 and 1860, against this exploitation, but the end was total capitulation to the Western forces, with humiliating concessions and indemnities, and full legalization of inbound shipments of the drug (though smoking remained a capital offense for Chinese subjects). In 1894 opium comprised 14 percent of China's total imports, supplemented by large-scale domestic production under the protection of autonomous warlords all over China. By 1900, according to one estimate, 27 percent of the adult male population of the country was addicted in some degree.

When Admiral Dewey pounced on the Spanish Fleet in Manila Bay and seized the Philippines as partial revenge for the sinking of the Maine (1898), the United States suddenly found itself embroiled in all the toughest problems of colonial administration in a remote, alien, and hostile territory (Taylor, 1969). Unlike the Cubans, who welcomed their American liberators, the Filipinos resisted bitterly and were not effectively subdued until 1901. Thereupon Civil Governor W. H. Taft found himself facing, among other things, a runaway opium problem, inherited from the Spaniards who had auctioned out contracts to provide opium for the local populace.

Governor Taft commissioned a study of alternative ways to deal with the situations his Opium Investigating Committee recommended licensing and gradual restriction of opium supplies, coupled with efforts to wean users away from the drug (U.S. War Dept., 1906). But on the other side of the world in Washington, Yankee lawmakers were being swept away by missionary and moralistic zeal. Secretary Hay was pushing his "open door" policy to break up exploitative monopolies in China. In 1902 Congress prohibited trafficking in guns. liquor, and opium by U.S. traders with natives on Pacific islands (Act of Februarv 14. 190-1. P.L. 57-10. 32 Stat. 33). And in 1905. taking matters out of Taft's hands. the U.S. lawmakers decreed total prohibition of all non-medical uses of opium in the Philippines on and after March 1, 1908 (Act of March 3, 1905, P.L. 58-141. 33 Star. 928, 944). When that date came, the Philippine traffic quickly went underground. and the Americans had their first direct taste of large-scale clandestine drug operations.

Simultaneously (1908) President Theodore Roosevelt proposed that all powers concerned with the international opium traffic should meet to consider cooperative measures to put an end to it (Renborg. 1947@ 1957). Out of this came the Shanghai Conference (1909) and the Hague Opium Convention. signed in 1912 by delegates from thirteen governments. Under this Convention (38 Stat. 1912, 1930, T.S. No. 612) each High Contracting Party proposed to bind itself to restrain its nationals from trafficking in opium and coca products, and to impose domestic controls on its citizens to curb non-medicinal uses.

But other nations shared little of America's enthusiasm for the Hague project. By 1915 only three, the United States. China, and the Netherlands, had ratified, and the Convention might never have amounted to anything had not the United States used its dominant position at the Paris Peace Conference to sponsor a provision that ratification of the 1919 Peace Treaties should be deemed automatic ratification of the Hague pact.

Harrison Act of 1914

Meanwhile. however, Congress had already moved to fulfill the U.S. obligation by enacting the Harrison Act (Act of December 17, 1914 P.L. 63-223, 38 Stat. 785). And it bears stressing again that in that day federal intervention into matters of local choice and personal concern was virtually unprecedented. Even in traditional law enforcement categories, Congress had theretofore ventured into local provinces in only a handful of pioneering acts: lotteries, 1895 (Act of March 2, 1895, P.L. 53-191, 28 Stat. 963); poaching, 1900 (Act of May 25, 1900, P.L. 55-553, 31 Stat. 188); train robbery. 1902 (Act of July 1. 1902,P.L. 57-243, 32 Stat. 727)and white slaving, 1910(Act of June 25, 1910, P.L. 6 1-2 77. 6 Stat. 825).

Under the Harrison Act persons required to register with the Treasury Department were obliged to obtain occupational licenses at nominal cost.

In 1919 a small stamp tax-one cent per ounce was added (Revenue Act of 1918, Act of February 24. 1919. P.L. 65-254, 40 Stat. 1057. 1130). and to facilitate collection of this tax it was made unlawful for anyone to purchase, sell, dispense, or distribute drugs except from an original stamped package. But there was an important exception to the Harrison Act requirements: no records needed to be kept, nor dispensing requirements observed, by any licensed physician, dentist, or veterinary surgeon so long as the drugs were given "in the course of his professional practice only" (Harrison Act, Sec. 2 [a] ). I I ]

Had the latter exemption been interpreted broadly, as Congress seemed to intend, the Act would have left ultimate control. and ultimate decisions as to distribution and administration. in the hands of medical authorities and local health officials. What happened, however, was something else.

Just at this time the nation was plunging into its disastrous experiment with National Prohibition. The Eighteenth Amendment. ratified in January 1919 and implemented by the Volstead Act (National Prohibition Act, Act of October 28, 1919, P.L. 66-66, 41 Star. 305), was assigned to Treasury for enforcement: the new Prohibition Unit set up in Treasury to carry out this assignment was also charged with enforcing the tax provisions of the Harrison Am and the T-men who thereupon set out with fanatical zeal to stamp out liquor-drinking simultaneously stretched the modest sanctions of the Harrison Act into a comparable mandate for all-out war on drugs. In 1919 Treasury spokesmen shook the nation with alarmed reports of one-and-a-half million dangerous addicts at large in the streets, an epidemic of heavy addiction among youths, and the appearance of smuggling and peddling rings of unprecedented cunning and power.

Coupled with the momentum thus derived from Prohibition. other factors also played a part in making this bureaucratic usurpation of power possible. Wartime propaganda had linked the sinister German spy with "dope." and mothers had been led to fear that their babies might be turned into fearsome heroin maniacs by secret agents of the Hun handing out poisoned candy in schoolyards. In New York, a local campaign led by Mrs. William K. Vanderbilt and other society leaders, partly to keep up with rival ladies who had become famous as suffragettes, had resulted in the repressive Town-Boylan law, enacted by that state in 1914. New Yorkers were warned of armies of dangerous fiends roaming Harlem and the Bronx. Spectacular raids on Chinatown "dens" raised the specter of helpless America seduced and betrayed by inscrutable Orientals organized into "tongs" and fronting for the Yellow Peril. Prominent figures within the medical profession itself disowned responsibility for ministering to the needs of addicts, and joined the chorus demanding total repression of drug trafficking and drug abuse (King, 1972).

In this same era, nonetheless, other medical spokesmen and public authorities, realizing that Treasury's sudden prohibition campaign would strand respectable addicts who had never been in any conflict with the law before (even conservative contemporary estimates put their number around 200,000) opened so-called clinics to provide relief (Musto, 1972). These clinics, appearing in 1919-20 in some forty cities throughout the country, were immediately caught up in controversy. Some were poorly administered and amounted to no more than "feeding stations," as was alleged; others drew congregations of "undesirables" to protesting neighborhoods; still others served their purpose well and dealt more or less adequately with addicts who applied to them. But by early 1923 all had been closed, thanks to warnings, threats, and where necessary actual prosecutions initiated by the federal agents (Terry and Pellens, 1928; Lindesmith, 1965).

At this juncture, the United States Supreme Court played an important part in shaping the pattern. The Harrison Act itself barely survived a constitutional challenge, by a 5 to 4 decision in United States v. Doremus (249 U.S. 86 [1919] ). But in a series of three interpretative opinions which followed, Webb v. United States (249 U.S. 96 [1919] ), Jin Fuey Mov v. United States (254 U.S. 189 [1920] ), and United States v. Behrman (258 U.S. 280 [19221 ), the High Court let itself be persuaded, in the inflamed climate of those years. to accept the government's extreme contention that "in the course of. . . professional practice" meant doctors could only administer controlled drugs to patients for conditions other than mere symptoms of addiction, and could not administer or prescribe for addicts as such under any circumstances. The effect of this, almost certainly at variance with Congress' initial intent, was to cut addicts off entirely from all sources of relief except smugglers, pushers, and dope rings. Exit the addict-patient; enter the addict-criminal. [2]

And from the law enforcement viewpoint, what would have been a minor regulatory and tax-collection assignment thus emerged as a major prohibition "war," glorified ever since in yeasty hyperboles about national survival and metaphors of the battlefield. [3]

Prohibition Era

In the mid- 1920s there were more federal prisoners serving time for drug-law violations than for liquor offenses, though this was in the very heyday of Prohibition (Schmeckebier, 1929). The number of doctors actually prosecuted all the way to conviction and sentencing were few, but this was only because formal indictments and prosecution proved unnecessary- the Narcotics Division reported thousands of cases in which it had dropped charges against, i.e., warned and threatened, persons registered under the Act (U.S. Treasury, 1920). And even in prosecutions of non-registered offenders, the arrest-conviction ratio was notably low. For 1925, for example, 10,297 federal arrests produced only 5,600 convictions, suggesting, again, use of the arrest and indictment processes to oppress and harass in doubtful cases (Schmeckebier, 1929).

As federal prisons became choked with addict-inmates, the Department of Justice sought help from Congress, and in 1929 the so-called Porter Act of January 19, 1929 (P.L. 70-672, 45 Stat. 1085) was passed (over bitter opposition from the Surgeon General, who wanted no part of the problem) to authorize the U.S. Public Health Service to establish two special facilities, first called "narcotic farms" and later renamed "hospitals." The first of these was opened-six years later, in 1935-at Lexington, Kentucky, and the second at Ft. Worth, Texas, in 1938. Under the Porter Act, addicted persons convicted in federal courts could be sent to the Public Health Service hospitals to serve their terms there in lieu of being committed to ordinary imprisonment. The hospitals thus soon came to be run like medium-security penal institutions. They were also authorized to accept voluntary patients, but this never worked well because of the prison-like atmosphere and because once physical withdrawal had been accomplished most voluntary inmates insisted upon leaving in short order. [4]

Bureau of Narcotics

In 1930, following a scandal in the Prohibition Bureau, Congress created a separate Bureau of Narcotics, and President Hoover appointed Harry J. Anslinger, who had commenced his career in the Foreign Service and had been serving as an Assistant Prohibition Commissioner in charge of foreign controls, to head it. Thereafter, for the next three decades, Anslinger dominated U.S. attitudes and policies towards drug abuse both at home and (as perennial U.S. delegate to all international drug conferences) throughout the rest of the world. He was an indefatigable proponent of the notion that drug addiction poses a fearful threat to mankind, calling for heroic efforts (by his Bureau) to combat it by all means, in all directions, and at all levels (see Anslinger and Tompkins, 1953, Anslinger and Oursler, 1961).

Whereas in the 1920s the federal agency had tended to preempt local drug-law enforcement, once Anslinger consolidated his position he launched a drive to bring the states into line with repressive laws of their own. In 1932 the prestigious National Conference of Commissioners on Uniform State Laws promulgated a Uniform Narcotic Drug Act. freely acknowledging that its work followed the federal pattern and had been aimed at parallelling federal controls as closely as possible (913 Uniform Laws Annotated 415-1 Eldridge, 1967). State legislators rushed to adopt this measure, so that by the end of the decade virtually every jurisdiction in the United States had either the Uniform Act or some parallel repressive law of its own.

Because the basis of the federal enactment was technically only tax collection, these state laws provided overlapping offenses, punishing possession, transportation, sale, possessing hypodermics, etc.. as offenses violating the states' police powers. But far from conflicting with the federal campaign. this proliferation simply gave the federal men a bouquet of options; where the state courts were notably severe, or rules of evidence more lax, or conviction otherwise more likely. the T-men would simply hand their cases over to local authorities for prosecution. In some instances defendants were even convicted and sentenced in federal and state courts for the same transaction. And of course the system worked in reverse, so state authorities could turn their victims over to the local U.S. Attorney if it appeared that harsher treatment could be expected in the federal forum.

On his home ground, no empire-builder in Washington cultivated relations with Congress more assiduously than the Commissioner of Narcotics. Any expression of interest from Capitol Hill would produce floods of material and personal attention from the Bureau in response, and it was even possible for addicted persons of sufficient prominence and good connections to be "treated" with tacit Bureau protection. The payoff for this was what Commissioner Anslinger wanted in the way of appropriations for his forces, and new federal legislation he usually got virtually for the asking.

Marijuana, the smoking preparation made by drying and shredding the tops and leaves of cannabis sativa, the common help plant, and hashish, the must stronger extracted resin, were known for millenia throughout the ancient world as both medicine and intoxicant. But in modern times, though tincture of cannabis continued to be widely used by physicians, the drug had little recreational impact. on Europe outside avant-garde circles, and was virtually unknown in the United States until the 1930s (see, generally, Grinspoon, 1971; Kaplan, 1970; Solomon, 1966). Cannabis is supposed to have been brought to Latin America by the Spaniards, and pot-smoking came to the American Southwest with Mexican laborers imported across the Rio Grande and to Gulf Coast ports with sailors and traders from the Caribbean. Sensational local exposes of alleged debauchery with marijuana induced Louisiana and Colorado to lead off with repressive state laws (in 1927 and 1929).

A few cranks around the country had been waging crusades against the "weed of madness," with little effect (see King, 1972; Lindesmith, 1965), but in the mid-thirties the Federal Bureau of Narcotics began warning of a threatened marijuana epidemic and urging a vigorous campaign against it (Anslinger and Cooper, 1937). In 1937 Congress responded with the Marijuana Tax Act (Act of August 2, 1937, P.L. 75-238, 50 Stat. 551), bringing the drug squarely within the repressive pattern previously applied to opium and cocaine by the Harrison Act.

Under this measure physicians and others desiring to prescribe cannabis were required to obtain a Treasury license (for $1.00 annually), and similar licenses were provided for other dispensers (S3.00), researchers ($1.00), and importers, manufacturers and compounders ($24.00). But the Narcotics Bureau, as issuing authority, restricted licenses to approved research projects, and the number thus issued was never more than a negligible handful. So the result was merely another nationwide enforcement empire and new categories of federal crime.[5] By 1937, when the Marijuana Tax Act was pushed through Congress, the T-men had begun to sound another note that would become their major theme for the ensuing decade: the charge that American drug problems were caused by too-light penalties and by too much leniency on the part of sentencing judges. This campaign bore its first fruit in the 1937 Act, in the form of increased penalties for second and subsequent drug offenses. [6]

Through this entire period the federal authorities insisted that the U.S. addict population remained stabilized at between 50,000 and 60,000. No one challenged the figure, and non-official persons had no access to any data from which the estimate could have been checked. Even during World War 11, when for several years ordinary travel and communication between drug-producing countries and the United States were cut off. the Bureau never tolerated a reduction to below 30,000, and the war affected its enforcement activities very little (U.S. Treasury, 1945). While other Geneva-based international organizations vanished, Anslinger contrived to bring drug officials of the League Secretariat, the Drug Supervisory Body, and the Permanent Central Opium Board to Washington where, though they had little to do, they survived intact until their work was picked up by new agencies within the United Nations framework (Anslinger and Tompkins, 1953).

Except for the appearance of amphetamines (widely prescribed for military personnel to combat fatigue and prolong wakefulness, and hence popularized among returning veterans) and a notable increase in barbiturate abuse. including significant numbers of overdose deaths,[7] there were few changes in the American drug scene in the immediate post-war years. It was suggested that opiate addiction might be concentrating more in urban centers and involving larger numbers of blacks, but the estimated total purportedly held steady (see Lindesmith, 1965: Ch. 4).[8] On the international front, Anslinger began to make headway with his grand design to pull all drug treaties and protocols into a new Single Convention (Single Convention on Narcotic Drugs, December 13, 1964, ratified by U.S. June 24, 1967, T.S. No. 1407; see Taylor, 1969).

But another surge of near-hysteria gripped the country in 1950, starting with a short-lived furor about juvenile delinquency ("dangerous young hoodlums"), and fueled by the Senate Crime (Kefauver) Committee disclosures about the menace of organized crime. The Narcotics Bureau exploited the Kefauver hearings to accomplish two things-building the myth of a sinister and omnipotent Mafia as the T-men's worldwide challenger (U.S. Senate Special Committee, 195la/b; King, 1971), and persuading Congress to increase the penalties for drug offenses, with a revival of mandatory minimums. Enlightened penologists had long been fighting to discourage mandatory minimums-by which lawmakers tie the hands of judges so that at least a prescribed minimum sentence must be given to all persons convicted of particular offenses-because they wipe out humane discretion in the sentencing function and play havoc with modern probation and parole systems. But in the inflamed atmosphere of the day, Congress rushed through the so-called Boggs Act (Act of November 2, 1951, P.L. 82-255, 65 Stat. 767) fixing mandatory sentence ranges, with increases for repeated offenses (2 to 5 years, 5 to 10 years, etc.) for all federal drug violations. Many state legislatures followed with "little Boggs Acts," some specifying terms as long as 10 to 40 years for offenses in the trafficking categories (Eldridge, 1967: Appendix B).

Hearings were also held at this time (1951) on the alleged need for federal sanctions to curb abuse of barbiturates and amphetamines (U.S. House Ways and Means Committee, 1951), but the Narcotics Bureau opposed all such proposals and they got nowhere.

QUESTIONS AND CONTROVERSIES

In 1955 the American Bar Association requested Congress to make a complete review and re-evaluation of federal drug policies and laws. Simultaneously a joint committee, representing the ABA and the American Medical Association, was established to study the role of these two sister professions vis-a-vis drug problems. The Congressional response was the creation of a committee chaired by Senator Price Daniel of Texas, which launched a sweeping investigation over all the United States.

But those who hoped the Congressional review might modify the harshness of federal policies were disappointed; the committee's chief investigator was a career Bureau agent, and from the outset its hearings merely featured the evils of drug abuse, the criminality of addicts, and the importance of expanded enforcement efforts and still harsher penalties. At the end, after accumulating some 8,000 pages of testimony (U.S. Senate Judiciary Committee, 1955), the committee produced two reports, one a nine-page document on law enforcement recommending stiffer penalties, additional powers for T-men, and larger appropriations for the Bureau (Sen. Rep. 84-1440), and the other, running to twenty-one pages, dealing with treatment but consisting principally of a diatribe against the clinic experiments of 1920. The Committee recommended that addicts be first incarcerated in "civil-type commitment," then released under tightly supervised probation, with incurable backsliders being committed to "an indeterminate quarantine-type of confinement at a suitable narcotics farm" (Sen. Rep. 84-1850).

Simultaneously (1956) a House committee again held hearings on the new perils of barbiturates and amphetamines, but once more the Bureau registered opposition to inclusion of these substances in the federal prohibition pattern and nothing came of it (U.S. House Ways and Mean Committee, 1955-6).

The result of the Daniel recommendations was the Narcotic Control Act of 1956 (Act of July 18, 1956, P.L. 84-728, 70 Stat. 567). It raised minimum and maximum penalties for all drug offenses to 2 to 1O years, 5 to 20 years, and 1O to 40 years for succeeding convictions, with 5 to 20 years and 10 to 40 years for any offense involving smuggling or sale. A special penalty was set for selling heroin to a minor-from a minimum of 10 years to life, or death if a jury so recommended. [9] Discretion to suspend sentences, grant probation, or provide parole eligibility was denied sentencing judges, except for first offenders convicted of possession only.

Narcotic agents and customs officers were authorized to carry weapons, serve warrants, and arrest without warrants. A new compounding offense-using any interstate communication facility in connection with a drug violation-was added, with a separate 2 to 5 year penalty. And all persons who had ever been convicted of a drug offense or who were currently addicts or users were required to register and obtain special certificates when leaving the United States, surrendering their certificates upon reentry (minimum sentence one year, and up to three, for violating this requirement).

The ABA-AMA study concluded in November 1957 with five recommendations: an experiment with an outpatient facility or "clinic"; a study of causative and relapse factors; an evaluation of educational campaigns and other preventative techniques; a comparative study of federal and state laws; and an evaluation of the effectiveness of current enforcement policies (Lindesmith, 1961). But this evoked a furious attack from the Narcotics Bureau, including a widely-circulated Treasury document containing alleged "comments" on the report (U.S. Treasury, 1958), and intervention with the project's sponsoring foundation to cut off its funds.[10]

But while Mr. Anslinger remained invulnerable to attacks from Capitol Hill and impervious to private criticism, his empire was soon rocked by political forces generated in the White House; and since the early 1960s U.S. drug policies have been kept almost continuously in turmoil by manipulations directed from the Oval Room.

One of President Kennedy's most stalwart supporters in winning the 1960 nomination and election was Governor Edmund (Pat) Brown of California. Brown had won two years earlier in a gubernatorial campaign involving drug issues (his opponent, former Senator William Knowland, had attacked him as being "soft" on drug offenders during Brown's eight-year tenure as California Attorney General). Californians had remained stirred up on account of this, and the issue was raised again in local elections there in 1960, whereupon Governor Brown began pressuring the Kennedy forces to sponsor a White House Conference on Drugs. The suggestion met with a cool reception because of Anslinger's strong opposition and because the subject was not then of much national interest.

At home in Sacramento, Brown designated 1961 as "Fight Narcotics Year," simultaneously launching a statewide campaign to focus public attention on the newly discovered menace of amphetamines and other "dangerous" drugs outside the traditional federal categories.

Nevertheless, only Californians might have been reached by all this-and the ensuing story might, consequently, have been quite different-had not Kennedy's arch-rival, Mr. Nixon, decided to run for governor against Brown in 1962 and to renew the attacks on Brown as a "coddler" of dope peddlers and dope fiends. The response from Washington was all-out; the President himself appeared in California on Brown's behalf; in May 1962 he personally announced that the idea of a White House Conference was now under study; and early in September, on the eve of the California contest, the Conference was formally announced.

But even so, the President simultaneously released a study sharply minimizing the problem: the total number of drug users in the whole nation was set at 45,000; heroin was declared to have no effects significantly different from morphine; doctors should be permitted to treat addicts and had a clear right to do so under existing laws; the hazards of marijuana were "exaggerated"; and as for increasing drug abuse among juveniles, "the available statistics do not indicate such an incidence now" (Ad Hoc Panel on Drug Abuse, 1962).

White House Conference

The two themes stressed at the Conference (hastily convened on September 27, 1962) were somewhat tangential: that the new menace about which the nation should be most concerned was so-called dangerous drugs, amphetamines and barbiturates- and that the most effective approach was treatment and rehabilitation, patterned after civil commitment programs already initiated by Governor Brown in California and being urged by Mayor Wagner (another Kennedy ally) in New York (White House Conference on Narcotic and Drug Abuse. 1962).

The Conference accomplished its main purpose; Brown won again and Nixon announced his withdrawal from public life. [11] But the attending publicity had stirred enough interest so that when nothing more happened there was muttering criticism of the President's apparent lack of concern about drug problems. The upshot was the appointment, early in 1963, of a brand-new Advisory Commission to make another study. This commission rushed out a hasty Interim Report, issued on April Fool's Day, but its final work only reached the White House in November 1963, just before the tragedy at Dallas. And its recommendations were again somewhat out of line with earlier thrusts (President's Advisory Commission on Narcotic and Drug Abuse, 1963a/b).

This Final Report proposed disbanding the Narcotics Bureau and removing all drug matters from Treasury, turning enforcement over to the Department of Justice, international aspects to a Special Assistant in the White House, and educational and health functions to the Department of Health, Education, and Welfare. It bore down on the need for controlling drugs in the new categories-now not only barbiturates and amphetamines but also LSD-25, ether, and airplane glue. It recommended that the federal Narcotics hospitals stop taking any patients except those convicted of crimes or involuntarily committed by civil procedures, and that the Bureau of Prisons establish a special program for addicts in federal institutions.

Partially offsetting the harshness of these recommendations, the Final Report urged dropping all mandatory minimum sentences from the federal statutes and called for a revision of federal regulations to allow doctors to set up their own standards of good medical practice for the treatment of addicts.[ 1 21

The first of these White House themes to bear fruit was the extension of the federal prohibition to barbiturates and amphetamines. One of President Johnson's first messages to the 89th Congress, in January 1965, called for legislation forthwith to control newly-revealed abuses of depressants and stimulants (111 Congressional Record 368, January 7, 1965). The result was the Drug Abuse Control Amendments of 1965 (Act of July 15, 1965, P.L. 89-74, 79 Stat. 226), differing from the Harrison Act in that they relied on Congress'

interstate commerce powers and were to be enforced by a new Bureau of Drug Abuse Control in the Food and Drug Administration, but requiring Harrison type registration by everyone handling the controlled substances, and imposing comparable if slightly milder criminal penalties for violations.[13]

A remarkable innovation in this law-added as a concession to placate the powerful drug lobbies and also, allegedly, to pay the debt incurred when drug manufacturers had earlier contributed millions of dollars' worth of medical supplies to save face for the Administration by bailing out Bay of Pigs hostages-was a provision imposing severe criminal sanctions for counterfeiting (i.e., merely appropriating the proprietary name of) any trade-marked drug product, even though the counterfeit substance was itself perfectly pure and accurately compounded.[14]

1966 Narcotic Addiction Rehabilitation Act

The next year, Congress passed the Narcotic Addict Rehabilitation Act (Act of November 8, 1966, P.L. 89-793, 80 Stat. 1438), a measure which had been pushed on Capitol Hill for several years by Republican leaders without success.[15] In theory, this measure was to provide alternatives to arrest and criminal prosecution for addicts. In practice, it was so severely limited that it has never had much effect. Under it, addicts[16] are divided into three categories. The first permits persons accused of crimes-but only if the crime involved no violence and no trafficking in drugs and the person was not on probation and not more than a second offender-to opt for civil commitment in lieu of prosecution, if a court approves and the Surgeon General certifies there is room for him in some treatment program. In the second category, persons found guilty of crimes other than those excluded above (plus addict-traffickers if their offenses are shown to have been primarily to obtain drugs for their own personal use) may, if the sentencing court so elects and the Attorney General certifies that there are adequate treatment facilities and personnel available, be committed for an indeterminate period of up to ten years (or the maximum sentence for the offense itself, if that is less) for treatment in confinement or, after a maximum of six months, treatment in parole-like conditional release. And finally in the third category, persons not involved in any crime may commit themselves, or may be involuntarily committed on petition of a relative, for three-and-a-half years of confinement and post-confinement conditional release -again provided the Surgeon General certifies that facilities are available to carry out this program in his case. [17]

The Drug Abuse Control Amendments had not specifically included hallucinogens, but they gave the Secretary of Health, Education, and Welfare authority to add such substances if he found them to have a dangerous potential for abuse, and the Secretary brought LSD into the control pattern in 1966. The popular media continued to portray horrors allegedly associated with "acid" and "bad trips," however, and this pushed the President into action again. When the 90th Congress convened in 1968, the White House warned that this newest category of drugs "threaten(s) our Nation's health, vitality and self-respect," and declared that law enforcement efforts were hampered because penalties for LSD transactions were too low. Congress responded with a new LSD penalty bill in October 1968 (Act of October 24, 1968, P.L. 90-639, 82 Stat. 1361).[181

During this period the Food and Drug Administration was headed by Dr. James L. Goddard, a career Public Health Service physician who appeared to be organizing FDA's newly-established Bureau of Drug Abuse control along lines emphasizing medical orientation and public education rather than exclusively hard-fisted law enforcement. He and his Bureau director, John Finlator, collided repeatedly with Capitol Hill exponents of tougher laws, and this played a part, at least, in provoking another drastic move from the White House. Though President Johnson's Commission on Law Enforcement and Administration of Justice had recently completed an elaborate study of the whole federal drug-enforcement effort without recommending any organizational changes (President's Commission, 1967a/b), early in 1968 he used his powers under the Reorganization Act to wipe out both the old Bureau of Narcotics in the Treasury Department and the new Bureau in the Food and Drug Administration, transferring everything, including educational and scientific responsibilities as well as law enforcement, to a new Bureau of Narcotics and Dangerous Drugs in the Department of Justice (U.S. House Committee on Government Operations, 1968).

When this shift was made, the Attorney General who would have shaped the new Bureau and set its policies was Ramsey Clark. But before he fairly made a start, Mr. Nixon and Mr. Mitchell arrived on the scene, calling for toughly enforced law and order. And no Administration in this whole narrative has been more vigorous in promoting repressive drug abuse policies, nor has any President ever personally played the drug theme so relentlessly.

Federal Organization

In 1968 the official figure for the nation's entire addict population was 63,000; by July 1969 President Nixon was warning a frightened public that drugs had become "a serious national threat," that the number of addicts had grown to hundreds of thousands. and that the problem now involved several million college students as well as youngsters in high schools and junior high schools. To deal with the situation-"this rising sickness in our land"-the President called for complete revision of all federal drug laws, ordering the Department of Justice simultaneously to initiate a new model law for the fifty states which would coordinate their activities more closely with the federal effort.

The federal revision which resulted was entitled "Comprehensive Drug Abuse Prevention and Control Act of 1970" (Act of October 27, 1970, P.L. 91-513, 84 Stat. 1236), and was indeed an omnibus measure, running to some sixty pages and consolidating all existing repressive measures in the Federal Code. The basis of federal power was shifted at last from tax collection to the full sweep of Congress' power over interstate commerce. All abusable substances were reclassified into five schedules, with restrictions and penalties graded downward from the classification most dangerous and most likely to be abused (with marijuana illogically locked into the severest). The Administration asked for increased mandatory minimums, but Congress balked at this and set up stiff maximums (5-10-15 years, $10,000-450,000 in fines), which double automatically for repeated offenses. Two new penal categories, promoting a "continuing criminal enterprise" or being a "dangerous Special Drug Offender," are punished by 10 years to life (20 years to life for a repetition) and a straight 25 years, respectively.[19]

The Department of Justice also carried out the President's other directive, preparing and promulgating a new Uniform Controlled Dangerous Substances Act, through the National Conference of Commissioners on Uniform State Laws. This act, already adopted by more than forty state legislatures, parallels the federal categories and enforcement provisions so closely that it practically reduces local forces to auxiliaries working within the federal framework. [20]

In June 1971 President Nixon, now terming drug abuse America's Public Enemy No. 1, created a "Special Action Office for Drug Abuse Prevention" in the White House (Executive Order No. 11599, 36 Federal Register 11793 [June 19, 1971]), and asked Congress for an unparalleled concentration of power, with lavish funds to be doled out for approved treatment and rehabilitation functions. Congress responded with the Special Action Office for Drug Abuse Prevention Act (Act of March 21, 1972, P.L. 92-255, 86 Stat. 65), committing almost a billion dollars to the President's virtually unrestricted discretion. [21] In January 1972 the White House also created a new Office of Drug Abuse Law Enforcement (Executive Order No. 11641, 37 Federal Register 2421 [February 1, 1972] ), located in Justice but headed by a White House "consultant," to concentrate enforcement activities in a special unit of several hundred agents and attorneys operating right on top of the Justice Department's regular Bureau.

CURRENT DILEMMAS

Obviously, this spectacular explosion in the federal bureaucracy and federal funding-at a time when the Administration has cut deeply into expenditures for bona fide welfare items like health, housing, and education-could not be easily justified on the basis of the addict population of 60,000 with which America has been familiar for so many decades. By the end of 1972 the figure officially promulgated as the number of persons addicted to drugs in the United States had reached 600,000.

Finally, the federal establishment appears to be executing a series of maneuvers aimed at throttling the one development that could threaten its enforcement empire, the spread of methadone treatment and maintenance programs. Methadone, developed by the Germans during World War II when access to natural opium crops was cut off, is an almost-exact equivalent of morphine and heroin (which are themselves so nearly alike that they metabolize indistinguishably). It soon came to be widely administered in the United States as the drug of choice in easing addicts' discomfort during withdrawal. But from the outset, when Dole and Nyswander began maintaining addict-patients with saturation dosages in New York in the middle 1960s, law-enforcers resisted. When programs started up in New York, Baltimore, Washington, Chicago, and other high-addiction spots, they were usually harassed by the police, infiltrated, and often their patients were intimidated and their sources of funds attacked. Doctors who prescribed methadone were threatened and sometimes prosecuted.

Nevertheless, these pioneering programs made headway, helped in some communities by demonstrably beneficial effects on street crime as addicts' compulsion to raise money for the black market was reduced, and helped by the myth that methadone is really a "good" drug which "blocks" the effects of evil heroin.

So in June 1970 the new Justice Department Bureau and the Food and Drug Administration made a determination to the effect that using methadone for maintenance programs, as opposed to a withdrawal aid, was "experimental," with the technical result that all methadone maintenance programs were required to file applications for special authorization and qualify under the severely restrictive regulations developed to curb reckless experimenting with damaging substances like thalidomide (Proposed, Regulation and "Guidelines." 35 Federal Register 9014 [June 11, 1970], 36 Federal Register 6075 [April 2, 1971]). Most programs were thereafter actually allowed to go on operating, at sufferance of the two Bureaus, but expansions have been discouraged-with the piteous result that in many parts of the country there are long waiting lists of addict-candidates for whom no place can be found in existing programs and facilities.

An even worse situation is now in prospect, for new regulations will withdraw methadone absolutely from discretionary use by private practitioners and dispensing by pharmacists, and restrict it solely to administration in "approved" programs. (Methadone: Proposed Special Requirements for Use, 37 Federal Register 6940 [April 6, 1972], 37 Federal Register 26790 [December 15, 19721). The result of this restriction, coupled with the power vested in the Special Action Office (SAODAP), will be that federal enforcement officials are going to have a monopoly over methadone as cruel and strict as the monopoly over heroin which law enforcement efforts now preserve for the wicked peddler.

And the end of America's fifty-year self-torment is not remotely in sight.

NOTES

1. This exemption was eliminated, in effect, by the Comprehensive Drug Abuse Prevention and Control Act of 1970, P.L. 91-513, 84 Stat. 1236, which provides that the Secretary of Health, Education, and Welfare and the Attorney General shall determine ,.appropriate methods of medical practice" and advise Congress. See 42 U.S.C. 257a.

2. The Court emphatically reversed itself in 1925, in Linder v. United States, 268 U.S. 5, disavowing the Behrman opinion and holding that addicts were entitled to medical care like other patients. But the reversal had practically no effect. See 62 Yale Law Journal 736, 751 (1953).

3. "I consider keeping dangerous drugs out of the United States just as important as keeping armed enemy forces from landing in the United States . . . Our goal is the unconditional surrender of the merchants of death who traffic in heroin. Our goal is the total banishment of drug abuse from the American life. Our children's lives are what we are fighting for." Richard M. Nixon, September 18, 1972.

4. This was sometimes countered at Lexington by "blue-grassing," requiring voluntary patients to plead guilty to a one-year misdemeanor in local Kentucky courts, the sentence suspended on condition the patient stayed in the hospital.

5. The Uniform State Act (9B Uniform Laws Annotated 415) was also amended to

include marijuana in 1942.

6. For smuggling and trafficking, the progression was from 5 to 10 to 20 years (all maximums, i.e., "up to").

7. Barbiturate deaths, honestly attributed, exceeded 1,000 per year in the postwar decade; Marilyn Monroe was the best-known victim. There is, incidentally, no such thing as an honestly-attributed heroin o.d. death. Heroin is simply not the killer it is so often officially claimed to be. See Brecher (1972: Ch. 12).

8. Beginning in 1953 the Bureau reported "active" addicts in last-digit figures, e.g., for 1958, 51,636. See also Maurer and Vogel (1967).

9. For an illuminating case history under this provision, see Kobler (1962).

10. So successfully (private foundations are understandably nervous about any pressure emanating from a U.S. Treasury agency) that the ABA-AMA venture could not even publish its own reports. See Lindesmith (1961), Eldridge (1967); another critical study completed early in 1958 by a sister federal agency was similarly blocked for five years (see Livingston, 1963).

11. Commissioner Anslinger's resignation was also accepted, though he continued as U.S. delegate to the U.N. Commission on Narcotic Drugs for eight more years, until 1970. 12. This is the basic difference in the so-called British "system" and experience; the doctors there set their own standards long ago and still largely control the situation, despite U.S. official propaganda to the contrary. See Schur (1956).

13. One year for unauthorized possession (other than for personal use); 3 years for possession with intent to defraud, etc.; 3 years for any repeated offenses; 2 years for any sale to persons under 21, increasing to 6 years for repeating this offense.

14. Nowhere else in American jurisprudence has mere trade infringement per se been made a felony, as in this instance. But the value to drug manufacturers is also unique because nowhere else are proprietary items, costing pennies to produce, priced in dollars.

15. The rehabilitation approach had given Governor Rockefeller and the New York Congressional delegation a means of counteracting the Kennedy-Brown-Wagner exploitation of "dangerous" drugs and broader enforcement; but this balance shifted when Robert Kennedy took Senator Keating's New York seat in January 1965.

16. Defined sweepingly as anyone who has "lost the power of self-control with reference to his addiction."

17. The Surgeon General and the Attorney General have only certified applicants to federal facilities by the handful. The bulk of the program has depended on small federally funded local projects, scattered by patronage considerations instead of concentrated in the few urban centers where drug problems are acute. Between ten and fifteen thousand persons have gone through some NARA processing to date.

18. The new penalties avoided mandatory minimums, however, merely providing 1 year for all possession (with special consideration for first offenders), and 5 years for trafficking (increasing to 10 and 15 years for sales to minors).

19. The Act even centers control of many education and research functions in the Attorney General, and entrusts the classifying and reclassifying of drug substances to him. It also confers civil enforcement powers (administrative investigation, immunity, injunction, etc.) on him and permits his agents to make warrantless arrests and "no knock" entries.

20. The federal act also set up a National Commission on Marijuana and Drug Abuse which has filed a moderate report (1972) urging partial decriminalization of marijuana use. 21. The Act also creates a new National Drug Abuse Training Center, a National Institute on Drug Abuse (to take over functions of the Department of Health, Education, and Welfare in 1975), and a new National Advisory Council on Drug Abuse.

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