The politics of malevolence

BY RUFUS KING, ESQ. 

From Contemporary Drug Problems, Winter, 1973, by Federal Legal Publications, Inc.

Mr. King, a practicing attorney in Washington, D.C., is author of The Drug Hang-Up; America's Fifty Year Folly (W. W. Norton, 1972; C Thomas, 1973).

When Ramsey Clark turned the Justice Department over to John Mitchell in 1969, the nation's drug addict population was officially estimated at 63,000, near the level where it had ranged for most of half a century. President Johnson's newly created Bureau of Narcotics and Dangerous Drugs had a budget of $16.8 million, operated with 742 agents, and was the only federal force in the field. Nobody contemplated an assault on young Americans for dallying with pot.

Now federal officials talk of an addict population of at least 600,000. The new Drug Enforcement Administration has a budget of $107 million, with 2,100 agents in offices in 40 states and at 100 foreign posts, and President Nixon's current budget calls for a grand total of $784 million to fund all the special offices, agencies and programs he is promoting in his so-called war on drugs.

According to the F.B.I. crime reports, in 3 years, 1969-1971, 979,708 people were arrested for drug offenses-520,052 under 21, 223,282 under 18, and 30,212 under 15. (So much, in passing, for the brave assurance that narks only hunt big-time smugglers and pushers.)

Washington publicists have been exploiting drug themes for years, but no administration has ever before gone to such lengths to alarm the electorate, and no President has ever before been so personally involved. Mr. Nixon seems to miss no opportunity to characterize drugs as Public Enemy Number One, urging heroic measures against what his administration keeps portraying as an impending national disaster. (The President now has a convert in Governor Rockefeller, who switched early in 1973 from supporting some of the nation's most enlightened prevention and treatment programs to the most savage penal measures of our times [which went into affect in New York September 1, 1973].)

Unfortunately, people caught up in the drug scene are almost perfect targets for this kind of hate-fear campaign, being invisible to most of us, little understood, few in number, and like the ominous un-Americans of Senator McCarthy's day (and Mr. Nixon's freshman career) devoid of any political power and totally unable to defend themselves. The drug menace has everything for manipulators of ignorance and prejudice. It has been submerged in the underworld so long that ordinary observers have no way of checking even the most preposterous exaggerations. It carries exotic international overtones, provides limitless possibilities for tie-ins with the mythology of organized crime, and has long been associated with unpopular minorities-ghetto blacks, Latins, and long-haired dropouts. And at the same time it involves obscure scientific factors which can only be pronounced upon by approved "experts."

Appeals to raw sadism are not new in this area. Lifelong isolation of the feared "fiends" of the 1920's was a popular notion in President Harding's day, revived periodically since. Canadian offenders were long liable to find themselves at the whipping post. But the most persistent drive has been for cruel mandatory sentences.

After World War 11, claiming an epidemic increase in addiction and suddenly discovering that great numbers of young people were involved, Commissioner Anslinger of the Federal Bureau of Narcotics (then part of the Treasury Department) launched a campaign blaming the judiciary for causing much of the drug problem by administering too4enient punishment to convicted drug offenders. Anslinger's perennial champion, the late Congressman Hale Boggs introduced a bill providing mandatory minimums in all federal narcotics laws, and in 1951, aided by public excitement generated in the Kefauver hearings, Congress passed the measure.

Under this Boggs Act, minimum sentences of not less than 2, 5 and 10 years respectively were required to be imposed for first, second and subsequent violations (including those committed prior to the passage of the Act), and no sentence could be suspended, nor probation granted, for second and subsequent convictions. President Truman signed the Act on November 2, 1951. Anslinger's bureau promptly reported that "an improvement in narcotic conditions has been noted" and that there were "definite indications at the end of the year that the increase in teen-age drug addiction has been halted." The bureau also observed "a noticeable shift of narcotic traffickers to other rackets."'

Only 3 years later, however, a Senate committee headed by Senator Price Daniel of Texas launched marathon hearings around the country, discovered anew that the problem was being spread by "contagious" addicts and was once more growing at an alarming rate, and again laid much of the blame on inadequate punishment for drug offenders. Out of this came the Narcotic Control Act of 1956, signed by President Eisenhower on July 18, 1956, which added mandatory minimums of 5 and 10 years for first and subsequent convictions (5-20 and 10-40), and which now also wiped out parole eligibility for offenders sentenced under these statutes.

No one had thus undermined the federal parole program in all the years since its adoption, in 1910, as the most enlightened innovation of that era, aimed at giving prisoners a tangible incentive to prepare themselves for readjustment to the outside world. But henceforth drug offenders, including even petty marijuana violators, would be walking the prison yards with murderers, rapists and traitors, every one eligible for parole release, knowing that they alone had no hope of leaving until their full terms were served.

And even that was not the worst. The same Act provided that anyone over 18 selling drugs to a minor would be punished by imprisonment of from 10 years to life, or, if the drug was heroin, by death when a jury so recommended. Simultaneously, under pressure from the Federal Bureau of Narcotics, state legislators followed suit. Forty states enacted mandatory minimums, led by Ohio which prescribed not less than 20 years for first offenses involving sales. Maximums were commonly increased to 40, 50-even 99 years. In a score of states, life imprisonment was provided for repeaters, while Alabama, Georgia, Louisiana, Missouri, Oklahoma, and Texas included the death sanction.

Happily, no one ever paid the supreme penalty under these laws. But the federal agents (claiming then, as now, to be concentrating only on kingpins and overlords) soon scored with a life sentence. In Los Angeles one Gilbert Mora Zaragoza, a near-illiterate; epileptic Mexican-American addict, with an IQ of 71, was tricked into selling heroin to a 17-year-old bureau turncoat named Eddie Manguio. Zaragoza was 21 at the time. Bureau spokesmen later claimed they were trying to make a case against an older peddler for whom Zaragoza sometimes worked. But when the two youngsters botched the situation Zaragoza was put on trial for his life.

The jury which heard the case declined to recommend death; but on May 17, 1957, when Zaragoza came up for sentencing the judge, sometimes known as "Maximum Mathes," committed him for life without parole, commenting: "The jury gave you back your life. Now society should use your life to set an example for others." Subsequent applications to Judge Mathes to reconsider the sentence evoked only the comment that its severity "may have been some deterrent to others."

Zaragoza was followed by other recipients of shocking sentences. The average term imposed on federal drug offenders, which had held steady around 19 months for a decade before the Boggs Act, and had doubled by 1955, jumped to 61 months in 1957. Hundreds of no-parole prisoners many youthful, some committed for 40, 50, and 60 years, entered federal institutions, prompting a protest from the Bureau of Prisons:

This law has serious implications for the future of the Federal prison system. We look forward to an every-increasing population of drug offenders in already crowded penitentiaries ... the changes in prison population which will stem from the enforcement of this law will necessitate modifications of institution programs in which sound correctional practices may have to be subordinated to the needs of long term custody.

In the following years other problems developed. Most federal prosecutors close at least 90 percent of their felony cases with guilty pleas, since by the time a defendant gets to the eve of trial he knows the government's evidence (and weak cases are weeded out before that stage). But faced with a mandatory 5- or 10-year sentence, drug defendants always elected to go to trial. They had nothing to lose by gambling on a jury verdict. So drug cases awaiting trial often choked busy court dockets. And, moreover, in some districts going to trial became a good gamble, because when jurors were aware of gross injustice in the situation they sometimes interceded by returning "Not Guilty" findings no matter how strong the government's case. Finally, in a few instances federal judges, appointed for life and coercible only by threat of impeachment, simply gave lesser sentences in defiance of the statute.

The situation was relieved when the brothers Kennedy established themselves at the White House and in the Department of Justice. U.S. Attorneys were directed to avoid prosecutions where the mandatory sentencing requirements would work unreasonable hardship. And, without fanfare, dozens of long-termers were quietly commuted or pardoned out of their hopeless plight. On November 22, 1962, the President commuted Zaragoza's life sentence to 20 years, with a finding that "the ends of justice would not require that the aforesaid life sentence be served in its entirety." With good time credits, and extra good time (indicating that he had been a model prisoner) Zaragoza left the McNeil Island

Penitentiary in 1970. President Johnson carried on the same policy of justice tempered with mercy, releasing others who had been serving terms longer than their natural life expectancies. And in 1966 Congress reestablished parole for marijuana offenders only. But in their first year, 1969, President Nixon and Mr. Mitchell set an all-time record by granting zero pardons and zero commutations.

In 1970 the new administration pressed for a complete revision of federal drug laws, to make them tougher and to hand an unprecedented bouquet of enforcement powers to the Attorney General. The original version, introduced by Senator Dirksen, proposed mandatory minimums even harsher than the 1956 provisions: 5-20 years for a first offense sales transaction involving even marijuana, and up to 20-80 years in some other categories. But when these proposals aroused a chorus of protests, Mitchell backed down, telling a House committee that "the determination of the optimum sentence structure for drug offenses involves many complex and often conflicting considerations ... I expect the Congress, in considering this proposed bill, to devote special attention to the sentence structure." 13

The result (Comprehensive Drug Abuse Prevention and Control Act of 1970) was a compromise which dropped most mandatory provisions, while raising maximums with double punishment for repeaters and a "special parole term" designed to keep released offenders in jeopardy long after they have served their prison terms. Two special categories, "continuing criminal enterprise," and "dangerous special drug offender," involve penalties straight from Alice's Wonderland-from 10-20-year minimums up to life with no probation or parole, virtually unlimited fines and forfeitures, and a right vested in the prosecution to appeal if it is not satisfied with the punishment meted out by the sentencing judge.

Yet, it is this harsh 1970 federal law, his own, which President Nixon now proposes to tighten and toughen in order to deal even more severely with drug offenders.

Besides drastic punitive measures, the other approach to drug abuse which waxes and wanes in public favor and political rhetoric is so-called treatment or rehabilitation. An easy way to sugar-coat the savagery of locking up citizens who choose to indulge themselves with substances the majority happens to disapprove-pot and H instead of cigarettes and whiskey is to call the program therapy, and dub the proceedings civil commitment instead of criminal prosecution. Until 1963, when the Supreme Court held that the eighth amendment prohibited making drug addiction itself a crime, many jurisdictions drew no clear line between the philosophies of therapy and punishment, so drug users caught up in the name of either were committed for similar terms to the same custodial institutions.

The therapy concept has sometimes been so fuzzy that well meaning judges have actually committed marijuana users to be "rehabilitated" by incarceration. The federal treatment program intended to be set up by the Narcotic Addict Rehabilitation Act of 1966 never amounted to much for the reason that it required treatment facilities to be genuinely related to the object of dealing with addiction, and no such facilities were generally available for persons processed under the Act.

Despite much confusion and sometimes deliberate distortion, the therapy concept is limited by two basic facts: first, only drugs in the opiate and barbiturate categories are (with alcohol) truly addicting, and only they create physiological dependency that requires any special "treatment" other than mere termination of use; second, people who are truly addicted to these have physiological symptoms which require medical attention when they are suddenly withdrawn.

It has never been open to honest question that primary treatment for symptoms of addiction is administration of the drug of addiction itself, or some appropriate substitute. It is also not honestly disputable that even heavy chronic users of opiates are neither physiologically damaged nor necessarily incapacitated by maintenance regimes, whereas the barbiturates damage body tissue and can easily threaten life, while alcohol ravages worst of all and incapacitates its addictvictims when administered at maintenance levels. Thus, in short, it is much less important to "cure" opiate addicts than persons hooked in the other two categories. And it is possible, usually desirable at the outset, to alleviate withdrawal symptoms by administration of the addict's drug of choice, sometimes even over long periods of time.

When federal authorities began regulating opiates under the 1914 Harrison Tax Act, and then stretched that Act into an all-out prohibition measure, it was generally assumed that addicted persons would be able to continue their supplies by addressing themselves to the medical profession for relief. In the early 1920's, when doctors were already being pushed out of the picture, so-called clinics were established in many cities where there were concentrations of addicts, to furnish drugs through centralized facilities. It was only when the federal enforcers succeeded in closing the last of these, and in driving the entire medical profession away, that addicts who could not withdraw themselves turned to their last remaining resort, the illegal pusher, thus creating the underworld operation which has been exploiting them so viciously ever since.

Proposals heard occasionally to reestablish clinics or provide medical help for opiate addicts have been drowned in witless vituperation. The parallel British experience, under a "system" which always allowed medical authorities to deal with addicts while limiting the law enforcement role to supporting medical control, has been shamefully misrepresented to the American public. At times during the last half-century it almost appeared that drug-law enforcers were in partnership with smugglers and peddlers, to keep the latter in business and protect their mutually profitable monopoly.

In 1964, however, a small breach was made in this wall by Drs. Vincent Dole and Marie Nyswander when they innovated methadone maintenance in an experiment with a handful of carefully selected addicts in New York City. Methadone is a synthetic equivalent of morphine and heroin which was developed by the Germans during World War II when their access to natural opium was cut off. The equivalence of the three (despite official American portrayals of heroin as a "killer") is very close, and all have been used medicinally throughout the world for so long that their properties are well known and their safety well established.

Methadone was released in the United States in 1947, and was quickly chosen by Public Health Service doctors at Lexington as most desirable for easing the discomfort of withdrawal and detoxification, primarily because it is slightly longer-acting and produces somewhat less intense "highs."

In the Dole-Nyswander project, heroin addicts were administered saturation doses to achieve a so-called blocking effect, satisfying their drug dependency and permitting them to set about solving other problems such as finding employment, restoring family ties, and making personal readjustments in preparation for, in many cases, ultimate achievement of abstinence. But abstinence was not the only end in view. It was recognized from the outset, as medical authorities in most of the rest of the world have always acknowledged, that some patients could function adequately on a controlled maintenance dose while yet remaining unable to get off drugs or to function without them.

This experiment was first conducted in defiance of federal and local authorities, who were held at bay by the eminence of its sponsors. It was soon credited with notable success, however, and it led to the development of other methadone programs, by public agencies and private practitioners, drawing addicts by the hundreds and then by the thousands off the streets into long-term withdrawal regimes or outright maintenance.

By 1970 methadone therapy had been undertaken in every major urban center where drug addiction was a problem.

Some private practitioners had begun to take on large numbers of addict-patients for methadone regimes. And the programs were being given credit for alleged decreases, sometimes dramatic, in drug-related street crimes in areas where they were in operation.

Predictably, enforcement authorities viewed this as a threat, and moved to the attack. Methadone centers were infiltrated by undercover agents and raided by drug squads, often for the purpose of seizing records and intimidating their patrons. Private practitioners administering methadone were threatened, harassed, and sometimes prosecuted for allegedly careless dispensing. Publicly-funded programs found their grants under fire; some were sharply restricted or compelled to close, with the result that large numbers of addicts were dumped back into the street. Virtually everywhere there were waiting lists, prospective patients managing as best they could until they could be admitted to a program.

Methadone itself was subjected to a reckless and dishonest campaign aimed at discrediting it. Officials who had been cynically reporting all drug-related fatalities (and some were tenuously related indeed) as herion "O.D.'s" now began similarly giving out statistics on deaths purportedly attributable to methadone. The occasional accident that actually resulted in injury or death was played up in headlines. Experts announced ominously that methadone was addicting (quite true, of course), that runaway methadone black markets were developing, and that methadone abuse was threatening to eclipse all other drug problems. Commentators revealed to shocked audiences that babies born to methadone-using mothers were delivered with their own symptoms of addiction (also perfectly true, but not dangerous and quite easy to manage through a brief withdrawal regime).

In June 1970, federal officials aimed a cruder and harder blow. The Bureau of Narcotics and Dangerous Drugs and the Food and Drug Administration jointly promulgated new regulations finding that methadone when used for maintenance programs was legally "experimental," thereby automatically bringing it under all the severe restriction developed at the time of the thalidomide scandal to make certain that experimenting on human subjects with potentially dangerous new substances would be held to the minimum essential for scientific study.

When these new methadone regulations took effect, early in 1971, all operating programs were technically required t submit an elaborate new-drug application, with a complicate and exacting protocol design, and to secure advance approval before continuing. No one could comply with the requirements if the administering bureaucrats wished to bear down on technicalities.

Advance approval was generally waived at the outset, with the result that all programs thereafter operated at sufferance, and the regulations were then used selectively to restrict or shut down operations which for some reason the Washington authorities disapproved.

However, just as the administration proposes to tighten further the tough penalties enacted in its own bill in 1970, President Nixon's Special Action Office for Drug Abuse Prevention [SAODAP] is already spearheading another all-out attack on methadone therapy. Virtually all federal fund available to support drug treatment centers and programs will hereafter be channeled directly through SAODAP, subject to political control in the White House, and are reportedly going to be passed out only to local programs which have the approval of their respective state planning agencies. Simultaneously, under new regulations methadone will be entirely withdrawn from all private practitioners and ordinary distribution sources, so that it can only be dispensed through politically "approved" dispensaries and public agencies.

In sum, medical practitioners are being driven even further out of the field, the White House and state and local public officials will control all programs involving the dispensing of methadone virtually absolutely, and addicts are likely to be faced with a new monopoly almost as heartless as that now maintained by the underworld pusher. Even flights of fear and fantasy about genocide campaigns aimed at blacks likewise promoted mostly for the benefit of politicians might be overtaken by reality if Uncle Sam emerges as Superpusher, manipulating methadone programs as political considerations dictate, and doubtless leaving enough room for heroin trafficking to keep his army of narks busy in the streets and prominent in the news media.

The production of new "epidemics" goes on without surcease. Another Senate committee has recently discovered that a mild soporific called methaqualone, promoted and accepted under trade names like Quaalude, Sopor, and Optimil, is felling great numbers of children right at their schoolroom desks, precisely as young tots two generations ago were reportedly being mowed down by opium and cocaine. The federal enforcers marched onto the scene with the sudden discovery of dozens of methaqualone deaths, and the tragic suicide of actress Sarah Miles' young consort was predictably credited to this new drug in the same kind of ghoulish exploitation that attended the deaths of Marilyn Monroe, Janis Joplin and Jimi Hendrix. Experts are tumbling over one another once again to pronounce methaqualone a new national menace, and to label the drug addicting and dangerous.

On the enforcement side, two ominous new campaigns are taking shape. One is promulgation of a national narcotic paraphernalia law, using Congress' interstate commerce powers to impose strict federal controls over the manufacture, shipment, sale, and possibly unauthorized possession of hypodermic needles, glassine bags, gelatin capsules-and conceivably even substances like quinine and corn and milk sugar that are supposedly being used to cut heroin. The other is a program called "diversion," already partially in effect in a few jurisdictions like New York City and the District of Columbia.

Under the diversion principle. everyone arrested for clinics usually associated with drug addiction is obliged to submit forthwith to a urine test, and if the result is positive he will immediately be shunted into one of the treatment programs (which, as already described, are in the process of becoming tightly-controlled official monopolies). The criminal charge is usually left hanging over his head, to be ultimately dismissed if he behaves himself and does what is demanded of him in the program.

Proponents of diversion have reasonable-sounding arguments: it gets addicts off the streets and into methadone regimes with none of the delays usually attending civil commitment or processing under laws like NARA after an addict-defendant has been found guilty; it relieves the pressure on criminal courts in areas where the addiction rate is high; it neatly sidesteps the prickly questions that surround preventive detention; and it gives a tough, coercive sanction against every addict who can be rounded up by the police, without putting arresting authorities and prosecutors to the test of making their charges stick before courts and juries.

But observers who do not blindly share the law-and-order persuasion, and who have seen diversion in practice, are terrified. Urinalysis is tricky. A positive test, even carefully administered, by no means always indicates that the subject is genuinely addicted. When the police unload a newly captured prisoner at the lockup, he may test positively from casual use (known as "chipping"), or faced with the alternative of languishing in jail to await trial after a long delay, he may even both wish and manage to fake a positive result. And thus thrown into a methadone program, unless he is subjected to elaborate screening which is seldom provided, our nonaddicted prisoner, under compulsion to do as he is told, dutifully starts whatever drug regime is prescribed for him, and of course then really becomes addicted.

Someone has called drug-law enforcement America's most dynamic growth industry. If the irresponsible consortium of cops and demagogues who are now exploiting the plight of the nation's drug addicts should actually thus divert citizens from the bottom of the social heap into the ranks of their victims-"therapy" as the only alternative to exaggerated prison terms-this unhappy characterization may be justified, and remain true for a long time to come.

1. U.S. TREASURY BUREAU OF NARCOTICS, TRAFFIC IN OPIUM AND OTHER DANGEROUS DRUGS (Annual Report, 1951), at 5.

2. The Zaragoza story was dug out by John Kohler and told in an article in the Saturday Evening Post, Sept. 8, 1964, at 64. Senator Roman Hruska retold it in 1969 (Congressional Record, March 13, 1969,S.2583).

3. Hearings on Narcotics Legislation Before the U.S. Senate Judiciary Committee to Investigate Juvenile Delinquency, 91st Cong., Ist Sess, at 910 (Sept. 15-Oct. 20, 1969).