has attempted during its tenure as, so to speak, keeper of the conservative tablets to
analyze public problems and to recommend intelligent thought. The magazine has acknowledged a
variety of
positions by right-minded thinkers and analysts who sometimes reach conflicting conclusions
about public policy. As recently as on the question of troops to Bosnia, there was dissent within
the family from our corporate conclusion that we'd be best off staying home.For many years
we have published analyses of the drug problem. An important and frequently cited essay by
Professor Michael Gazzaniga (Feb. 5, 1990) brought a scientist's discipline into the picture,
shedding light on matters vital to an understanding of the drug question.
He wrote, for instance, about different rates of addiction, and about ambient pressures that bear
on addiction. Elsewhere, Professor James Q. Wilson, now of UCLA, has written eloquently in
defense of the drug war. Milton Friedman from the beginning said it would not work, and would
do damage.
We have found Dr. Gazzaniga and others who have written on the subject
persuasive in arguing that the weight of the evidence is against the current attempt to prohibit
drugs. But NATIONAL REVIEW has not, until now, opined formally
on the subject. We do so at this point. To put off a declarative judgment would be morally and
intellectually weak-kneed.
Things being as they are, and people as they are, there is no way to
prevent somebody, somewhere, from concluding that ``NATIONAL REVIEW favors drugs.'' We
don't; we deplore their use; we urge the stiffest feasible sentences against anyone convicted of
selling a drug to a minor. But that said, it is our judgment that the war on drugs has failed, that it
is diverting intelligent energy away from how to deal with
the problem of addiction, that it is wasting our resources, and that it is encouraging civil, judicial,
and penal procedures associated with police states. We all agree on movement toward
legalization, even though we may differ on just how far.
We are joined in our judgment by
Ethan A. Nadelmann, a scholar and researcher; Kurt Schmoke, a mayor and former prosecutor;
Joseph D. McNamara, a former police chief; Robert W. Sweet, a federal judge and former
prosecutor; Thomas Szasz, a psychiatrist; and Steven B. Duke, a law
professor. Each has his own emphases, as one might expect. All agree that the celebrated war has
failed, and that it is time to go home, and to mobilize fresh thought on the drug problem in the
context of a free society. This symposium is our contribution to such thought.
-- THE
EDITORS
1. Wm. F. Buckley Jr.
Last summer WFB was asked by the New
York Bar Association to make a statement to the panel of lawyers considering the drug question.
He made the following
statement:
WE ARE speaking of a plague that
consumes an estimated $75 billion per year of public money, exacts an estimated $70 billion a year
from consumers, is responsible for nearly 50 per cent of the million Americans who are today in
jail, occupies an estimated 50 per cent of the trial time of our judiciary, and takes the time of
400,000 policemen -- yet a plague for which no cure is at hand, nor in prospect.
Perhaps you, ladies and gentlemen of the Bar,
will understand it if I chronicle my own itinerary on the subject of drugs and public policy. When I
ran for mayor of New York, the political race was jocular, but the thought given to municipal
problems was entirely serious, and in my paper on drugs and in my post-election book I
advocated their continued embargo, but on unusual grounds. I had read -- and I think the
evidence continues to affirm it -- that drug-taking is a gregarious activity. What this means, I said,
is that an addict is in pursuit of company and therefore attempts to entice
others to share with him his habit. Under the circumstances, I said, it can reasonably be held that
drug-taking is a contagious disease and, accordingly, subject to the conventional restrictions
employed to shield the innocent from Typhoid Mary. Some sport was made of my position by
libertarians, including Professor Milton Friedman, who asked whether the police might
legitimately be summoned if it were established that keeping company with me was a contagious
activity.
I recall all of this in search of philosophical perspective. Back in
1965 I sought to pay conventional deference to libertarian presumptions against outlawing any
activity potentially harmful only to the person who engages in that activity. I cited John Stuart
Mill and, while at it, opined that there was no warrant for requiring motorcyclists to wear a
helmet. I was seeking, and I thought I had found, a reason to override the presumption against
intercession by the state.
About ten years later, I deferred to a different allegiance, this one not the presumptive
opposition to state intervention, but a different order
of priorities. A conservative should evaluate the practicality of a legal constriction, as for instance
in those states whose statute books continue to outlaw sodomy, which interdiction is
unenforceable, making the law nothing more than print-on-paper. I came to the conclusion that
the so-called war against drugs was not working, that it would not work absent a change in the
structure of the civil rights to which we are accustomed and to which we cling as a valuable part
of our patrimony. And that therefore if that war against drugs is not
working, we should look into what effects the war has, a canvass of the casualties consequent on
its failure to work. That consideration encouraged me to weigh utilitarian principles: the
Benthamite calculus of pain and pleasure introduced by the illegalization of drugs.
A YEAR or so ago I thought to calculate a ratio, however roughly arrived at, toward the
elaboration of which I would need to place a dollar figure on deprivations that do not lend
themselves to quantification. Yet the law, lacking any other recourse, every day countenances
such quantifications, as when asking a jury to put a dollar figure on the damage done by the loss
of a plaintiff's right arm, amputated by defective machinery at the factory. My enterprise became
allegorical in character -- I couldn't do the arithmetic -- but the model, I think, proves useful in
sharpening perspectives.
Professor Steven Duke of Yale Law School, in his valuable book, America's Longest War:
Rethinking Our Tragic Crusade against Drugs, and scholarly essay, ``Drug Prohibition: An
Unnatural Disaster,'' reminds us that it
isn't the use of illegal drugs that we have any business complaining about, it is the abuse of such
drugs. It is acknowledged that tens of millions of Americans (I have seen the figure 85 million)
have at one time or another consumed, or exposed themselves to, an illegal drug. But the estimate
authorized by the federal agency charged with such explorations is that there are not more than 1
million regular cocaine users, defined as those who have used the drug at least once in the
preceding week. There are (again, an informed estimate) 5 million
Americans who regularly use marijuana; and again, an estimated 70 million who once upon a time,
or even twice upon a time, inhaled marijuana. From the above we reasonably deduce that
Americans who abuse a drug, here defined as Americans who become addicted to it or even
habituated to it, are a very small percentage of those who have experimented with a drug, or who
continue to use a drug without any observable distraction in their lives or careers. About such
users one might say that they are the equivalent of those Americans who
drink liquor but do not become alcoholics, or those Americans who smoke cigarettes but do not
suffer a shortened lifespan as a result.
Curiosity naturally flows to ask, next, How many users of illegal drugs in fact die from the
use of them? The answer is complicated in part because marijuana finds itself lumped together
with cocaine and heroin, and nobody has ever been found dead from marijuana. The question of
deaths from cocaine is complicated by the factor of impurity. It would not be useful to draw any
conclusions about alcohol
consumption, for instance, by observing that, in 1931, one thousand Americans died from alcohol
consumption if it happened that half of those deaths, or more than half, were the result of drinking
alcohol with toxic ingredients extrinsic to the drug as conventionally used. When alcohol was
illegal, the consumer could never know whether he had been given relatively harmless alcohol to
drink -- such alcoholic beverages as we find today in the liquor store -- or whether the bootlegger
had come up with paralyzing rotgut. By the same token,
purchasers of illegal cocaine and heroin cannot know whether they are consuming a drug that
would qualify for regulated consumption after clinical analysis.
But we do know this, and I approach the nexus of my inquiry, which is that more people die
every year as a result of the war against drugs than die from what we call, generically, overdosing.
These fatalities include, perhaps most prominently, drug merchants who compete for commercial
territory, but include also people who are robbed and killed by those desperate for money to
buy the drug to which they have become addicted.
This is perhaps the moment to note that the pharmaceutical cost of cocaine and heroin is
approximately 2 per cent of the street price of those drugs. Since a cocaine addict can spend as
much as $1,000 per week to sustain his habit, he would need to come up with that $1,000. The
approximate fencing cost of stolen goods is 80 per cent, so that to come up with $1,000 can
require stealing $5,000 worth of jewels, cars, whatever. We can see that at free-market rates, $20
per week would
provide the addict with the cocaine which, in this wartime drug situation, requires of him $1,000.
My mind turned, then, to auxiliary expenses -- auxiliary pains, if you wish. The crime rate,
whatever one made of its modest curtsy last year toward diminution, continues its secular rise.
Serious crime is 480 per cent higher than in 1965. The correlation is not absolute, but it is
suggestive: crime is reduced by the number of available enforcers of law and order, namely
policemen. The heralded new crime legislation, passed last year and
acclaimed by President Clinton, provides for 100,000 extra policemen, even if only for a limited
amount of time. But 400,000 policemen would be freed to pursue criminals engaged in activity
other than the sale and distribution of drugs if such sale and distribution, at a price at which there
was no profit, were to be done by, say, a federal drugstore.
So then we attempt to put a value on the goods stolen by addicts. The figure arrived at by
Professor Duke is $10 billion. But we need to add to this pain of stolen property, surely, the
extra-material pain suffered by victims of robbers. If someone breaks into your house at night,
perhaps holding you at gunpoint while taking your money and your jewelry and whatever, it is
reasonable to assign a higher ``cost'' to the episode than the commercial value of the stolen money
and jewelry. If we were modest, we might reasonably, however arbitrarily, put at $1,000 the
``value'' of the victim's pain. But then the hurt, the psychological trauma, might be evaluated by a
jury at ten times, or one hundred times, that sum.
But we
must consider other factors, not readily quantifiable, but no less tangible. Fifty years ago, to walk
at night across Central Park was no more adventurous than to walk down Fifth Avenue. But
walking across the park is no longer done, save by the kind of people who climb the Matterhorn.
Is it fair to put a value on a lost amenity? If the Metropolitan Museum were to close, mightn't we,
without fear of distortion, judge that we had been deprived of something valuable? What value
might we assign to confidence that, at night, one can sleep
without fear of intrusion by criminals seeking money or goods exchangeable for drugs?
Pursuing utilitarian analysis, we ask: What are the relative costs, on the one hand, of medical
and psychological treatment for addicts and, on the other, incarceration for drug offenses? It
transpires that treatment is seven times more cost-effective. By this is meant that one dollar spent
on the treatment of an addict reduces the probability of continued addiction seven times more than
one dollar spent on incarceration. Looked at another way: Treatment is
not now available for almost half of those who would benefit from it. Yet 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 pursuing, detaining, and prosecuting the drug user, we could
subsidize commensurately effective medical care and psychological treatment.
I HAVE spared you, even as I spared
myself, an arithmetical consummation of my inquiry, but the data here cited instruct us
that the cost of the drug war is many times more painful, in all its manifestations, than would be
the licensing of drugs combined with intensive education of non-users and intensive education
designed to warn those who experiment with drugs. We have seen a substantial reduction in the
use of tobacco over the last thirty years, and this is not because tobacco became illegal but
because a sentient community began, in substantial numbers, to apprehend the high cost of
tobacco to human health, even as, we can assume, a growing number of
Americans desist from practicing unsafe sex and using polluted needles in this age of AIDS. If 80
million Americans can experiment with drugs and resist addiction using information publicly
available, we can reasonably hope that approximately the same number would resist the
temptation to purchase such drugs even if they were available at a federal drugstore at the mere
cost of production.And added to the above is the point of civil justice. Those who suffer from the
abuse of drugs have themselves to blame for it. This does not mean that
society is absolved from active concern for their plight. It does mean that their plight is
subordinate to the plight of those citizens who do not experiment with drugs but whose life,
liberty, and property are substantially affected by the illegalization of the drugs sought after by the
minority.I have not spoken of the cost to our society of the astonishing legal weapons available
now to policemen and prosecutors; of the penalty of forfeiture of one's home and property for
violation of laws which, though designed to advance the war against drugs,
could legally be used -- I am told by learned counsel -- as penalties for the neglect of one's pets. I
leave it at this, that it is outrageous to live in a society whose laws tolerate sending young people
to life in prison because they grew, or distributed, a dozen ounces of marijuana. I would hope that
the good offices of your vital profession would mobilize at least to protest such excesses of
wartime zeal, the legal equivalent of a My Lai massacre. And perhaps proceed to recommend the
legalization of the sale of most drugs, except to minors.