Drug War Crimes

Contents

• Introduction by David Theroux
• Jeffrey Miron, Professor of Economics, Boston University; Author, Drug War Crimes
• Joseph D. McNamara, Research Fellow, Hoover Institution; Former Chief of Police, San Jose and Kansas City
• Ethan Nadelmann, Founder and Executive Director of the Drug Policy Alliance; Author, Cops Across Borders
• Questions and Answers

David J. Theroux
Founder and President, The Independent Institute

I see some familiar faces, and a lot of new faces as well. As many of you know, we sponsor a regular series of events here—seminars, debates and lectures, on different social and economic issues, featuring top scholars and policy analysts. And tonight is no exception.

Our program tonight, as you know, is entitled “Drug War Crimes” and is co-sponsored by our good friends at the Drug Policy Alliance. Marsha Rosenbaum is in the audience here, and I’m delighted to have a chance to work with them again. And we’re also featuring the book “Drug War Crimes” of the same title, by one of our speakers, Jeff Miron. And I’ll say a few things about that in a minute.

For those of you who are new to the Independent Institute, hopefully you got a packet, and you’ll find information about our program. The Institute is a non-profit, non-partisan, scholarly public policy research institute. We sponsor many studies. We produce lots of books, and hold lots of conference and media projects.

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As a result, the Institute was literally started to cut through what we considered to be intellectual poverty, noise, and spin of so much of public policy debate, which we thought was too heavily special interest driven.

The Institute, in effect, was, we feel, a new kind of research institute, one of a kind in the public policy field in many respects, because of the highly partisan nature of so many advocacy groups who may be right, may not be right, but for most people, how do you tell the difference?

And so the Institute was started literally with no financial backing from any interest groups. We had no angels. We had no support from industry, labor, government, or other groups that had their own agenda. So in effect, we were what could be perhaps called the first garage think tank. And today we have over 140 research fellows who are involved in many, many issues, and some of them hopefully will be of interest to you here.

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One of our publications is a quarterly journal called The Independent Review, and this particular issue I pulled out because this is actually the Fall 2002 issue, and of course, you can get the current one too. This one you might find of particular interest, because the lead article is by Harry Levine, who is a Professor of Sociology at Queens College, and is on the nature and impact of worldwide drug prohibition. It’s quite a powerful study that I think you might find of interest.

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In your packets, there is also a program for tonight. On the first page at the bottom, you’ll see information about our next event. That will be on June 17th. It’s called, “The Future of Iraq: Democracy or Empire?” Some people suggested we should call it, “Debacle or Empire?” Maybe “Debacle and Empire.”

Anyway, it will feature George Bisharat, who is Professor of Law at Hastings College of Law, Ivan Eland who is Senior Fellow and Director of the Center on Peace and Liberty here at the Independent Institute, James Noyes who is a Research Fellow at the Hoover Institute, and Robert Scheer who is a senior lecturer at the Annenberg School of Communication at USC.

For tonight’s program: As many of you no doubt know, each year the U.S. government spends over $30 billion dollars on the war on drugs, and arrests more than 1.5 million people annually. There are currently well over 300,000 people behind bars in the U.S. for drug violations, more than the total number of people incarcerated for all crimes in the United Kingdom, France, Germany, Italy and Spain combined.

And despite the claims that have been made, and the drug war has been going on for many years in different ways, the questions that we’re going to be discussing tonight, I think need to be asked. Such as, Have current drug laws deterred drug use and reduced crime, as claims have been made? What are the real costs to the war on drugs? Is there a link between crime rates, including homicide, and the kind of resources that are spent on the drug war? And many other questions.

So tonight we’re quite delighted and pleased to have three outstanding experts on illicit drug policy, who are here to examine some of these questions—and we welcome your questions at the end—and look at some real alternatives.

Our first speaker, as I mentioned before, is the author of our new book called Drug War Crimes. Jeffrey Miron is Professor of Economics at Boston University. He’s a reassert fellow here. He received his Ph.D. in Economics from MIT. He’s been a research fellow for the National Bureau of Economic Research. He’s been a Professor of Economics at the University of Michigan, Associate Editor for The Journal of Money, Credit and Banking. His articles on drug policy have appeared in numerous scholarly journals, as well as various newspapers like The London Observer, Boston Globe, San Diego Union Tribune, and elsewhere. So I’m very pleased to introduce Jeff Miron. (applause)

Jeffrey Miron

Professor of Economics, Boston University

Thank you all for coming. We certainly appreciate your interest in the topic.

As most of you know, drug prohibition is an incredibly important policy in the United States, and it affects millions of lives every day. We lock up hundreds of thousands of people. We arrest approximately one-and-a-half million a year on drug-related charges. We spend tens of billions of dollars, and forego billions of dollars in tax revenue that could be collected if drugs were legal instead of being prohibited.

Now, of course, that policy didn’t happen for absolutely no reason whatsoever. There are people who believe that current U.S. drug policy generates benefits that outweigh its costs. So the alleged benefits, according to the proponents, would include reduced drug use and abuse, lower crime, improved health and productivity, and, perhaps most importantly to many people, it makes what they believe is a moral statement that says drug use is bad, and that society should not tolerate drug use. So there is certainly lots of sentiment out there in favor of current policy.

At the same time, there’s a different view; a different view that believes that it’s prohibition rather than drugs themselves that are generating much, if not most, of the harm. So according to the critics of current policy, the opponents of prohibition, prohibition not only costs billions of dollars, as I mentioned, but prohibition itself is what generates crime and corruption, prohibition is what reduces the health and productivity of drug users. Prohibition itself has numerous other side effects that we’ll talk about in a few minutes.

And indeed, even from the moral perspective, as I’ll describe later, prohibition has a number of consequences that are at least as bad, if not far worse, than any moral consequence one might attach to drug use.

So what I’m going to try to do in about 30 minutes—I apologize, I might skip a slide or two to stay within that timeframe—is to talk about these opposition views. And I’m going to present an analysis that’s based on economics, not philosophy, or rights, or, for the most part, on morality. I’m going to talk about what are the consequences of prohibiting drugs as opposed to the consequences of allowing drugs to be legal.

I’m going to do it in an economist, typical nerdy fashion. I’m going to use some words that don’t mean what they seem to mean, and things like that, but there’ll basically be two parts to my discussion.

First I’m going to do what economists refer to as a positive analysis. And by a positive analysis, economists mean we’re going to describe the effects of drug prohibition, whether those effects are good or bad. And ideally, a positive analysis is scientific. It’s one that all economists would agree with, subject to areas of legitimate scientific uncertainty, before you get to the question of whether on net, we think that the particular policy is a good policy or a bad policy compared to some alternative.

And then in the second part, I’ll turn to that question and talk about, given the set of effects we’ve described as stemming from prohibition, OK, which is a better policy, prohibition or legalization?

And so let me start with the positive analysis. What are the effects of prohibiting drugs?

To do that, OK, we first have to be specific about what we’re comparing it to. And that may seem obvious, but it’s one of the points that bears a certain amount of emphasis. People who advocate not just prohibition, but lots and lots of government policies, have a tendency to say there is something bad going on, therefore we must have a policy. The economics view is well, there may be something bad going on, but we have to ask does the policy make those things better or worse, or what are the effects of that policy, compared to some alternative?

And the alternative I want to consider is full legalization. OK? So to be specific, by prohibition, I mean a regime like the current policy in the U.S., where we criminalize the possession, the sale, the transportation, etc., of drugs. We enforce those laws with real penalties like long jail terms, heavy fines, and asset seizures, and we really make an effort to put those laws into practice.

By legalization, for the next 15 minutes or so, I mean a regime in which we just treat drugs like any other good, whether it’s toothpaste, toaster ovens, ice cream cones, Starbucks, whatever. So there would be a whole set of government policies that would apply to legalized drugs—minimum wage laws would apply in that industry and things like that—but there are no special policies towards drugs, they’re just another commodity.

So there are lots of other things you might consider that are in between. I’m going to put those aside for the moment.

So the starting point for the analysis is a very simple observation, which may seem trivial—prohibition doesn’t eliminate the supply or demand for drugs. It seems really obvious, but it’s important to emphasize, because policy makers, advocates of prohibition, sometimes act as though, gee, if we prohibit drugs, there won’t be drugs. The problem will go away.

That’s patently untrue. We have to ask how does the market operate? What occurs, given that there will be at least some market in drugs, despite the existence of prohibition. OK?

So the market doesn’t go away, but prohibition may affect the market in specific ways. The assertion by calmer, more rational prohibitionists is prohibition will decrease the demand for drugs. It will convince some people not to want to buy drugs in the first place, and it will raise the cost of supplying drugs, and that will raise the price, meaning fewer people buy drugs because of the increased cost.

So I want to look at both of those claims, OK, to see whether it looks plausible that prohibition in fact decreases demand, restricts supply, and thereby lowers consumption of drugs.

So think first about the demand curve for drugs. There is no doubt that prohibition might reduce the demand for drugs. Some people might choose not to consume drugs if they’re illegal—people who would otherwise use drugs, because they want to respect the law. No doubt that occurs for some people in some instances, but in and of itself, respect for the law doesn’t seem to be a huge effect. We can think of zillions of laws, which are very weakly obeyed. Because they’re weakly enforced, people know that they’re not likely to be sanctioned, and so in fact, people routinely violate them.

A second reason people might decrease their demand for drugs is because there are real penalties associated with buying drugs. You can be arrested. You can go to jail. You can have certain assets seized. You can lose professional licenses, and things like that.

Now, it’s certainly true that there are many arrests for drugs, many of them for drug possession, so you might think that that aspect of prohibition would be a relatively powerful force. If you think about it, however, it’s probably not. Although there are lots of arrests, there are zillions of people who buy and use drugs every day, and many of those possess drugs, buy them day, after day, after day, so a simple calculation of what’s your probability of being arrested for drug possession—in fact, it’s going to get you a very, very small number.

In addition, despite some of the occasional horror stories, most of the time the penalties for mere possession of drugs are quite mild, and so it seems unlikely, to me, that in fact, prohibition reduces the demand for drugs in and of itself, to any substantial degree. So in my analysis, the effect on demand is plausibly pretty small.

A possibly more convincing argument is that prohibition raises the cost of supplying drugs, and then even if it hasn’t shifted demand, it would lead to a higher price, and that may persuade a lot of people from wanting to buy drugs, from consuming drugs. So it’s clearly the case that prohibition does increase certain costs of supplying drugs. Black market drug suppliers have to hide their activities, they have to bribe officials, they transport the drugs in secret. They may have to compensate their employees at higher than normal rates because when you work in the illegal drug trade you risk getting shot, and incarcerated, and things like that.

Nevertheless, I think the effect of prohibition on supply is not necessarily as large as it’s frequently made out to be. OK? Black market suppliers, although they do face increased costs from one perspective, actually have a cost advantage relative to legal suppliers from a different perspective. Given you’re operating in secret, that you’re staying away from the police, as a black market supplier you’re not going to comply with excise taxes, minimum wage laws, child labor laws, environmental regulation, and zillions of other things. So that, to some extent, offsets the increased costs due to prohibition.

So the question is then what is the evidence? How big an effect do we expect prohibition to have on the consumption of drugs?

So my assessment is that looking at the body of evidence, and as summarized in the book in some detail, there’s a lot of evidence that prohibition has some effect, but very little evidence that it has a substantial effect.

So to give you a few examples, for the past 20 to 25 years in the United States, the attempts to enforce drug prohibition have escalated enormously. We’re arresting way more people. We’re incarcerating four or five times more people than we were 25 years ago. We’re spending four times as much money for the Drug Czar’s office and things like that.

Yet drug prices have fallen by a factor of about 80 percent. If prohibition is an effective policy, if it’s useful for raising the cost of supplying drugs, that’s exactly the opposite of what one would expect to see. In fact, the decline in drug prices has been dramatic.

If you look at differences across countries, some countries enforce their drug laws very strictly, such as the U.S. and a few other places. Many other countries such as Europe and Canada, although they enforce them to some degree, enforce them way less than the United States. So if prohibition is an effective policy, you’d expect to see the countries with weak enforcement have a lot higher rates of drug use than the countries with strict enforcement. That, in fact, is not the case. Rates of drug use bear no correlation to the degree of enforcement of drug prohibition.

So based on those two pieces of evidence, and a number of others that I discuss in the book, my conclusion is that both theory and evidence suggest the effect of prohibition on drug use is probably modest, not zero. OK? Sometimes legalizers fall in the trap of just asserting that it’s zero, that there can’t be any effect. There probably is some effect. But it’s 20 percent, or 30 percent, maybe it’s 50 percent. It’s not 5,000 percent or five million percent, as is often asserted by prohibitionists.

So why is prohibition such a big deal if it’s not having a huge effect on the amount of drug consumption? It’s having a huge effect because it creates a black market. And in a black market, a whole bunch of things happen that wouldn’t happen in a legal market, and that are potentially very costly for society. So what I want to talk about next are all the things that happen as a result of prohibition above and beyond any effect of reducing drug consumption.

First, and quite importantly, is the effect of prohibition in increasing violence. The standard claim that you will see in the newspaper over, and over, and over again, on the ONDC, on the Drug Czar’s Website and all sorts of other places, is that drug use makes people violent. In fact, there is almost no evidence to support that claim: that merely consuming drugs makes you go out and do violent things or other criminal things.

The much more plausible effect is in the other direction. The prohibition itself creates violence, because the participants in a black market cannot resolve their disputes using lawyers, and arbitration systems, and judges. They have to resort to guns, or knives, and other forms of violence, because they don’t have access to the non-violent legal dispute resolution system.

And there is a huge amount of evidence, which is consistent with this view that I’ve just enunciated, rather than the traditional view that drugs themselves cause violence. If you look at the history of alcohol and drug prohibition in the United States, the periods in which the U.S. has had elevated rates of violence are the periods in which we’ve tried to vigorously enforce alcohol and drug prohibition. If you look across countries, countries that have high rates of violence are, other things equal, the countries that attempt to enforce drug prohibition to a substantial degree.

If you look across a whole range of other commodities—gambling, prostitution, tires, sugar, blue jeans in the Soviet Union—any cases where because of war, or because of a centralized economy prices have not been allowed to be free and there has been a black market, you’ve always seen violence associated with those commodities, independent of the characteristics of the commodity. And there’s a number of additional pieces of evidence to that effect. So that’s one key effect of prohibition: prohibition itself generates violence.

A second possible effect is generating crime more generally. The main mechanism by which that might happen is that prohibition as we’ve raises drug prices, as we’ve discussed, although, as I’ve discussed, I’m not convinced that that’s such an enormous effect, although it’s certainly not a zero effect. If prohibition raises drug prices, then there is more incentive for people who use drugs, low-income persons who use drugs, to commit theft, robbery other income generating crime, to be able to afford their drug habits.

A second reason prohibition might generate crime more generally, is that prohibition diverts the police from trying to deter standard crimes such as murder, robbery, rape, arson, etc., because they’re off—the police are busy, preoccupied, trying to deter a drug crime. The evidence is consistent with this view, with both of these mechanisms. It’s not as clear-cut, in my assessment, as the evidence on violence, but it’s certainly some evidence to support that.

Another effect of prohibition, and again, whether or not it reduces drug use, is that prohibition redistributes society’s resources to people who’ve chosen to be criminals. In a legal market, some of the income that’s generated accrues to the government in the form of taxes, or to the ownership as profits. In a black market, there are no taxes, so all of that profit goes to the suppliers.

To be technical, that’s not a cost in a strict economic sense; it’s a redistribution. It enriches drug suppliers relative to drug consumers, but it’s obviously a kind of redistribution that no one would ever endorse if they actually knew what was going on. If you put on a ballot initiative, do you want to have a policy which enriches criminals? Obviously most people would vote against it. And yet, that’s exactly what’s happening as a result of drug prohibition, with the consent, unfortunately, of a substantial fraction of the populace.

Still another important effect of prohibition is diminished quality control. In black markets, you can’t sue manufacturers for faulty goods. You can’t complain to the FTC or the Consumer Product Safety Commission. Manufacturers can’t advertise to promote their high quality products, and manufacturers want to transport drugs in pure—in relatively pure forms of the drug. All those factors mean that quality control, ability of people to get a commodity whose purity they understand, and whose content they understand, is greatly inhibited in the black market, and so you get more overdoses and accidental poisonings relative to what you would see in a legal market.

Prohibition is likely to increase corruption. In a legal market, we see campaign contributions. We see lobbying. That can’t happen in the black market, and so you’re going to get corruption of police, of law enforcement officials, of politicians, via bribes and corruption, which you wouldn’t see in a legal market for drugs.

Let me mention a few things very quickly, other effects of prohibition. Because prohibition is a victimless crime, there is a strong incentive for the police to want to restrict the notions of civil liberties, because it’s hard to enforce crimes—excuse me. It’s hard to enforce crimes against consensual activities, without impinging on those civil liberties, so the police use more invasive tactics. Again, because the police have to enforce a consensual crime, a crime that doesn’t have a victim, there’s increased incentive to use racial profiling. Because of the restrictions on clean needles fostered by prohibition, there is increased spread of HIV and other blood-borne diseases.

Because the prohibitionists are worried about anybody getting access to drugs, they’re forced to push restrictions on the medicinal uses of drugs. So we see relatively limited access, except under a few state laws, for medical marijuana. We see doctors being pressured not to use opiates for the alleviation of pain of cancer patients, and other people who are suffering from all sorts of extremely painful and debilitating diseases.

Prohibition makes it much more complicated just to conduct all sorts of other policies, because our negotiations, say, with Mexico over Free Trade, can’t just be about free trade. We have to worry about if we allow free trade, is that going to make it easier for more drugs to get into the country?

So let me summarize what I’ve said so far, quickly. Prohibition probably does reduce consumption of drugs, to some degree, but neither theory nor evidence suggests a large effect. And indeed, a substantial part of the effect may be on relatively casual consumers about whom people tend to be less concerned than heavy consumers.

Whether or not prohibition reduces consumption very much, it has a whole range of other effects, and those effects are things that we need to think about, not just the effects on drug consumption.

I want to turn now to the normative analysis. Is drug prohibition good or bad compared to legalizing drugs? What almost everyone would agree to is that almost all of the effects I’ve discussed so far are bad. There’s some room for reasonable scientific disagreement about certain magnitudes, and maybe, in a few cases, about whether I’ve gotten the sign of the effect right, but I don’t think there is very much of that.

Anybody who agrees with my analysis, nevertheless, would agree that having a policy which increases crime and violence, transfers resources to criminals, spreads HIV, etc., etc., anyone who agreed with those conclusions from the positive analysis, would of course agree that those are undesirable effects of prohibition, and with other things equal, oppose those effects, and presumably oppose the policy.

But there’s one critical exception to that view, which is any effect of prohibition in reducing drug consumption. Some people clearly think that reducing drug consumption is a good idea, and that that’s the reason we want prohibition, and they might be willing to trade off some other negative effects, some other bad things, in exchange for being able to reduce drug consumption.

So that’s a critical question which the normative analysis has to address. If you think that prohibition reduces drug consumption minimally, then the analysis really isn’t very hard. You’re getting all these bad effects and not reducing drug consumption, so end of story. If you think that drug prohibition is reducing drug consumption to a moderate degree, and you think that that’s a good thing, then you have a harder balancing to undertake.

What I’m going to do in the remaining part of the talk is discuss four different perspectives on how policy should treat drug consumption. I’m not going to talk about just whether drug consumption is good or bad; the question is whether the policy of attempting to reduce drug consumption does more harm than good, taking into account all of the effects.

And they’re really two separate questions, which—and a point that is frequently overlooked. The first question is should some policy be used in the attempt to reduce drug consumption? Secondly, if the answer is yes, is the right policy prohibition, or possibly something else?

So let me start with a view that I will refer to as rational drug consumption. Standard economic model, which economists use over, and over, and over again to study the demand for toothpaste, or the market for personal computers or whatever, says people buy things because they want to. OK? They choose to do one thing as opposed to another, because they think it makes them better off. And so people buy drugs because they want to buy drugs, because they like consuming drugs, because it helps, it’s a form of self-medication, because it makes you look cool, because you enjoy being intoxicated, or whatever.

In the standard rational economic model, it doesn’t matter why people choose to consume drugs. It doesn’t matter whether drugs are addictive, or if drugs can, sometimes, be harmful. That doesn’t distinguish drugs from zillions of other commodities. OK? All that matters is that people are voluntarily choosing to accept the risks of using drugs because they think it makes them better off.

Now, before I continue, let me emphasize my overall bottom line doesn’t rely on the assertion that everybody’s drug use is rational, but I think that that’s a perspective that’s useful to think about.

If you take that perspective, then the analysis of drug prohibition is really easy. Because if you think that all drug consumption is rational, not only is policy having all of these negative effects of creating crime and corruption, but it’s preventing people who wish to use drugs from obtaining the benefit of so doing, and thereby making them worse off as well.

And, even if one can point to situations where drug use seems to be irrational to almost any observer, it’s hard to deny that a lot of drug use, in fact, seems just as rational as anything else. It’s hard to distinguish why, to say why some people’s use of marijuana is any different than other people’s use of alcohol; why some people’s use of cocaine for the short-term enjoyment that they get, is any better or worse than other people’s short-term enjoyment from using alcohol, or engaging in sporting activities, or anything else.

So one cost of prohibition under this view, is any reduction in drug use by persons who would use drugs responsibly if drugs were legal. And that’s not a bizarre argument. It’s the same argument we make for keeping alcohol, cigarettes, cars, Ben and Jerry’s Ice Cream, and millions of other things legal, all of which have the characteristic that they can be misused, and they can cause harm if misused, but for the vast majority of users they’re not misused, and they provide enjoyment to the people who use them.

So that’s one possible perspective on drug use, and I think it leads to the conclusion that some of the reduction in drug use achieved by policy is, in fact, a cost of policy, of prohibition, not a benefit.

A second perspective referred to as paternalism, asserts that many drug users are myopic or irrational, they don’t know what they’re doing, they’re not properly taking into account the future consequences of drug use, and so policy should discourage drug use to protect people from themselves. OK? It’s of course impossible to deny that some degree of myopia, irrationality exists with respect to drugs, and many other commodities. But that does not, by itself, imply that a policy intervention is necessarily desirable, and certainly not that prohibition is necessarily desirable. So why not?

Well, first of all, the paternalistic view opens a Pandora’s box of government interventions. Once you say government should be in the business to deciding what’s good or bad for people, then government has the authority to choose a whole range of things: from what books you should read, to how much exercise you should get, and a whole host of other things, that I personally would have very, very strong objection to. And there’s no presumption that governments get it right. Any objective assessment of marijuana versus alcohol would say that alcohol is the more serious commodity, and yet policy has chosen to prohibit marijuana, not alcohol.

A second objection to the paternalistic approach, justification for policy interventions, or for reducing drug use, is that the underlying assumptions, while not wrong, are frequently grotesquely exaggerated, and in particular, don’t differentiate drugs from a host of currently legal goods.

It’s certainly true that drug use can be addictive. It’s certainly true that drug use can be harmful. It’s certainly true that some drug users are myopic. But is that more true for drugs than it is for alcohol, or under-saving, or not spending enough time on your kid’s homework, or watching too much late night TV, or a zillion other things? There is no reason to think that the degree of these problems is any more serious for drugs than it is for a whole host of other things.

In addition, you attempt to reduce drug use, you may simply encourage people to consume some other thing, which is just as bad for them, and then you’ve had no net effect, in any event, even if all of those things, in fact, are potentially quite harmful.

Finally, even if you grant all of the assumptions behind the paternalistic perspective, and think that that implies some type of intervention by government to help protect myopic drug users from themselves, that doesn’t imply prohibition. The right question is not does the existence of myopia justify prohibition? The right way to think about it is what policy will balance the negatives of myopia against the negatives of policy?

We’ve discussed that prohibition has an enormous range of undesirable consequences, and isn’t particularly effective at reducing drug use, so there’s just no reason to think that on net, the benefit of sometimes reducing myopic drug use, could possibly justify the enormous cost that prohibition imposes on society.

Other approaches? Possibly subsidized treatment. Possibly public information campaigns. Possibly sin taxes or things like that might have a reasonable ratio of benefits to cost, but prohibition almost certainly does not.

Another perspective on a possible reason that you might think government should intervene to discourage use of drugs, is that there are externalities, another economics term that I will attempt to explain. OK? “Externalities” means their effects on innocent third parties. When I do something, it negatively impacts you, even though you haven’t volunteered to be impacted by my actions. So if people consume drugs when they’re pregnant, that may adversely affect an unborn fetus. If people consume drugs and drive, that may cause traffic or industrial accidents and the like. If people make themselves sick and use publicly funded health care, that’s potentially an example of an externality.

So again, one certainly can’t deny that drug use can cause externalities. There’s no room for debate about that. It does occur in some instances. But again, the mere existence of those externalities does not imply that there is a role for policy, and especially not for prohibition.

So again, the magnitude of externalities from drugs is frequently highly exaggerated, and if assessed objectively, is not obviously different from that of many legal goods: whether it’s alcohol, saturated fat, watching too much late night TV and therefore being unproductive at work, or lots and lots of other things that one can think of. OK?

There is, again, the problem that attempts to reduce the use of one good that can cause externality, such as driving under the influence of marijuana, might cause you to drive under the influence of alcohol which, according to many controlled studies, actually has a bigger negative effect on your ability to drive.

It’s also the case that calculating net externalities is very tricky. Many of you may be aware that people have attempted to see whether smokers are imposing a big externality on everyone else by making excessive use of publicly funded health care. It turns out that yes, smokers do use more publicly funded health care on average, while they’re alive, but they tend to die young. So they collect less Social Security and less Medicare, on average, than non-smokers. So in fact, they seem to approximately be paying their way. (laughter)

That sounds really heartless, but if you’re going to take this approach, if you’re going to rely on the externality argument, you should be consistent, and that means accepting conclusions such as the possibility that government policy should be subsidizing tobacco use, or at least reducing taxes, rather than the other way around. It doesn’t always have to come out to show that more policy intervention is better.

Finally, on externalities again, the right question is not whether externalities exist. There’s no doubt that they exist. The right question is does a particular policy have more of an effect in reducing externalities, or have a benefit in reducing externalities relative to the costs generated by that policy? In the case of prohibition, we know that it has enormous costs, and therefore the chance that it’s reducing externalities more than it itself is causing those externalities, is very remote. There’s no reason to think that the benefits exceed the costs. There are other approaches that are far more likely to make sense.

Finally –oh, thank you very much—a possible perspective on why policy should attempt to reduce drug use is a moral perspective. According to some, drug use is inherently immoral, or against religious views, or in some way evil, so policy should prohibit drugs to make a moral statement, even if that policy has substantial costs.

Well, what’s wrong with that view? First of all, unless you put an infinite weight on making this moral statement, you should still be willing to consider all the other effects of prohibition. You might think that it’s good for policy to signal that drug use is undesirable, but you should be willing to do that at any cost, and so you should recognize all the other arguments that I’ve raised here today.

Even more importantly, if you accept my analysis, prohibition is at least as immoral—in my view, far, far more immoral, than legalization and drug use, because it has enormous effects, which negatively impact innocent bystanders. There’s increased violence generated by prohibition, some of which leads people walking down the street to get caught in drive-by shootings.

There’s increased crime, which means the police are not protecting you in your homes as well as they might be, because they’re out locking somebody up because he was caught with a joint in his pocket. OK? There are restrictions on civil liberties. There’s the prevention of marijuana and opiates being used to treat people who are sick because of the desire to enforce prohibition.

There’s the reduced respect for the law that’s generated by any policy that has anything like the degree of non-compliance that prohibition laws do in the United States. There’s the encouragement of the view the people aren’t accountable for their actions; that it’s the drugs that made them do it. That’s a consequence of prohibition. And that, to me, is also an immoral consequence of prohibition.

I don’t think that the moral view carries the day for the prohibitionist. Far from it. I think it goes in just the opposite direction.

So to summarize, anyone who accepts the economic analysis I provided would agree that virtually all the effects of prohibition are undesirable, with the only possible exception being any reduction in drug consumption that’s achieved by prohibition. Even that is partly a cost, as long as you’re willing to assume that some people can use drugs rationally and responsibly, assuming drugs were legal.

Most importantly, even if there is a case for policy to attempt to reduce drug consumption because of myopia, because of externalities, prohibition is almost certainly the worst possibly approach for doing that. Other far less interventionist policies would have a much better ratio of benefits to cost than the current analysis of prohibition.

OK. Let me just sum up, which I think I already did. The bottom line—so the broader perspective is simply policies have a range of consequences intended and unintended. Rational analysis of any policy, including drug prohibition, should consider all of the consequences, not just the feel-good consequences, not just the consequences that politicians want to occur, or that the voters want to occur, but all the consequences that actually will occur. OK?

So it’s clearly true that there are unknowns about legalization. We don’t know exactly how much drug use would change. What norms would develop about drug use, how it might affect certain parts of society. OK? But there’s no evidence which makes an overall case that the benefits of prohibition exceeds the cost; in fact, the evidence is strongly to the contrary. So despite the unknowns, far and away the most appealing policy is to legalize drugs, and to do it sooner rather than later. Thank you very much. (applause)

David J. Theroux

Thank you, Jeff. During the Q & A, those of you who are interested, you can pursue questions about specifics pertaining to Jeff’s findings on the effects of the war on drugs, on homicide rates, and other issues.

Our next speaker is Joseph McNamara. Joe is a research fellow at the Hoover Institution. He is the Chief of Police for the City of San Jose, California, and before that, Kansas City, Missouri. He has had published articles in The New York Times, The Los Angeles Times, The Washington Post, The Wall Street Journal. He’s been a commentator on NPR, and has appeared on many TV programs, including 60 Minutes, Meet the Press and so forth.

He is currently completing work on a new book called Gangster Cops on the issue of the corruption of law enforcement as a result of the drug war. I’m very pleased to introduce Joe McNamara. (applause)

Joseph D. McNamara
Research Fellow, Hoover Institution
Former Chief of Police, San Jose and Kansas City

Thank you very much. I’d like to share with you an e-mail that I received today from my friend Ethan, a news release from some news agency regarding tonight’s meeting, saying that one of the speakers would be retired police chief Ethan Nadelmann. (laughter)

Now, I’ve known Ethan for some 15 years as a brilliant academic, a drug reformer, and so on. I never knew he was with the Secret Police. Whether it was the DEA, or the FBI or the CIA, it’s mind-boggling. I had these bizarre visions of him out on hunting trips with Dick Cheney and Ashcroft and others. (laughter) So I’ll leave Ethan to defend himself from that vision.

I’d like to follow a rather simple theme with you: that there are roughly a million police officers in the United States, and some 17,000 or so different police agencies. And so one needs to be somewhat cautious in generalizing, but there is such a thing as the police culture. And I would like to make the point with you that the police culture nurtures the Drug War, and that the police culture has been greatly influenced by the Federal escalation of the drug war.

I don’t think it’s particularly useful for those of us who wish to change the current drug laws and think that they’re wrong-headed, to bash politicians, and to bash the police. Because after all, politicians want to get reelected, and the theory of democracy is that they do what the voters want, they get reelected. And the police have a duty to follow. In a democracy, the policies are set by civilians, otherwise we have a police state.

So I’d like to say that I think in terms of looking at this issue of the drug war and its escalation, and the terrible problems that it has caused, to approach it a little bit from a different perspective.

I’d like to first talk about this police culture. Most of the police officers, the overwhelming majority of them, have working class backgrounds. And they enter police work for a variety of reasons, but most of them, because they see it as a positive occupation, in which they’re the good guys, they’re protecting the citizens from criminals, and that they’re doing good.

The first thing that happens after they’re sworn is they swear an oath of allegiance to the Constitution. But it’s not the same Constitution that the ACLU sees, or that a law professor sees. Very quickly, the police agencies have to change the recruits from civilians into police officers.

Now, I think we Americans, it’s safe to say, have a natural tendency to mind our own business. That has to be drilled out of the police recruits. They have to be trained to interfere, sometimes, with the activities of others, to be nosy, to be suspicious. And almost every police agency that I’ve ever seen sees themselves as crime fighters. They are the ones that prevent crime. They do so by arresting people that commit crimes, and taking them out of circulation through the court system, or the fact that the threat of an arrest deters others from committing crimes.

So if you keep that in mind, and think about the training the police begin with—I was fortunate when I joined the New York City Police Department, that in my particular class of some 600 recruits, we were broken into groups of 30, and we had a very good instructor, a real street smart sergeant who had integrity, and was also a good teacher.

And the lesson plan of the New York City Police Academy for what was then the most advanced training of any police agency in the United States, a four-month training course, in which some 10 percent of the recruits didn’t make it, had great impact by the ACLU, the NAACP, other community groups. And so each instructor worked from a prepared lesson plan.

And when our sergeant taught us about the Fourth Amendment, which prohibits the police from making searches generally, without a warrant, although there are some exceptions, he went through the lesson plan as it was written. However, a couple of days later when he was teaching a course on police procedures from another lesson plan, he taught us how to search people.

And there was a certain contradiction there, and being a kind of maverick even back in those days, and he being a reasonable man, unlike some of the other instructors, I asked the question, “Well, but what about the Fourth Amendment?” I thought we weren’t supposed to search people unless we had a warrant. And he said, “Well, that’s just a civil matter. Someone can sue you for violating their civil rights, but you go ahead and search them, and no jury is going to find against a cop who comes up with a handful of dope outside the schoolyard. And if the courts didn’t want us to do this, they wouldn’t let us do it.”

Now this was a good instructor, so that’s the indoctrination that comes in. The Constitution is not seen as a glorious document that established unique Civil Rights in the history of civilization, but it’s seen by the police as an obstacle that they have to get around to do their job.

Now let me say one other thing about the police culture. The police officers very soon see a slice of life that you don’t see. They see misery, violence, human cruelty. They’re thrown problems with emotionally disturbed people that they can’t solve, that no one can solve. They see children horribly mutilated. They see violence, a great deal of violence. In fact, the Dark Angel of Death sits just behind the police officer’s shoulder throughout their entire career, and it influences the way they see life very greatly.

And also the police officers know full well that someone who’s not a police officer just doesn’t see this chaos, doesn’t see the results of society, and poverty, and other problems that they see, and oftentimes, will not be able to judge a police officer’s actions, the way the police themselves think it should be judged.

As a result of this, the danger, the physical danger, which is very real—and the legal danger that they may be charged falsely with a crime of using unnecessary force, they may be injured or so on—the police bind together in a rather unique way. And we’ve all heard of the code of silence, and it actually exists. It’s one of the things in the police organization that is a very important fact of life.

We don’t have very many whistleblowers among the police, for good reason, because the police feel they have to stick together. They’re often the only witnesses that will support their actions, and if they are seen by their fellow officers as a whistleblower, they’re ostracized. And if they need help on the street, people, not only other police not only don’t respond, but sometimes will jam their radio calls for help. And so if you want a police career, you don’t get the idea in your head that it’s advanced by reporting the misconduct of other police officers.

Certainly that’s not unique to the police. There are many other groups, in fact, some people say politicians even have the same view of life, and attorneys, and doctors, and others who feel threatened, sometimes, by false accusations.

But I’d like to talk about the value systems by which—the reward systems and the value systems—by which the police operate. As a young officer, we walked foot patrol ourselves. There were no portable radios in those days, no bulletproof vests, or anything like that. And I worked in Harlem.

One day I turned the corner, and I saw a crowd a block away. And we had been trained in the Police Academy to be curious, and to pay attention to such things. And as I approached the crowd, I saw a body on the ground, and suddenly the crowd split open, and a man ran. I ran and I caught him, and I made my very first arrest as a police officer. It was for first-degree murder.

It was very unusual for a uniformed officer to make an arrest for murder, especially a foot patrol officer, and especially not in response to a call. It was made on observation. And one of the things that happened was I was immediately praised for this arrest, and interviewed for appointment to the Detective Bureau, which was rather astounding, because I had been walking a beat for a couple of months. I didn’t have any real clear idea of how to be a cop, let alone how to be a detective. (laughter) I often approached situations that would be bewildering on the street, and I’d listen to people yelling and screaming, and I’d say to myself, “What would a real cop do in this situation?” (laughter) And so the idea of being a detective didn’t have a lot of appeal to me.

But the captain called me into the office and he said, “That was a good pinch that you made.” Now, if I had turned the corner a couple of minutes earlier and stopped the two men from fighting, the man would have lived, the victim would have lived, and the NYPD would have given a great big yawn. But because the man died, and I arrested the perpetrator, then I was recognized. And you have to understand that that’s the way police departments work.

The captain, however, gave me a promotion. He put me on radio motor patrol, which was wonderful. It was very exciting and you went from one assignment to another. You saw more in a year on radio motor patrol in Harlem, than the average police officer saw during a 20-year career in most areas of the country.

But the captain said something very puzzling to me. He said—I was, after all, 22-years old. As you can see, I’m not the tallest policeman you ever met, and in fact, just made the minimum height that existed in those days. And I looked like I was about 16-years old. The captain looked at me, and he said, “One thing about this detective interview, keep in mind that a kid like you, with a baby face, will be stuck, they’ll stick you right into the Narcotics Squad.” And it was puzzling to me, because many officers would have sold their soul to get the detective badge, and the prestige that went with the detective assignment. I saw myself as rising up through the superior officer ranks, which in fact I eventually did.

But it took some 10 years before I understood what the captain was warning me about. Ten years or so later, the New York State Investigation Commission found massive corruption in the New York City Narcotics Department. And I received my interview for the Detective Division in 1957.

Detectives, narcotic detectives, had been robbing drug dealers, stealing their drugs and the money, selling the drugs back into the street, committing all sorts of other crimes. Scores of detectives were arrested and sent to prison, a couple of them committed suicide. The investigation involved officers up to the rank of lieutenant, which was a pretty high rank. And so even that far back, the corruption was there in drug work.

Why? Well, that’s an involved question, involved many complexities.

On motor patrol one day, my partner and I arrested a heroin addict on the top floor landing of what we call shooting galleries, the tenement top floor. And the addict that day had possession of a hypodermic needle, and a little cooker, in which he had just heated up his heroin mixed with water, and injected it.

Now, there was no usable heroin left in this bottle cap, but we would send it to the police lab, and it would come back with the residue of heroin, which was possession of heroin, punishable by six months in jail, as was the hypodermic needle.

Why would we make those kinds of arrests? Because the police department wanted us to. And if you wanted to ride in a police car, you had better show sufficient activity, and not only that, the captain gave you a day off for making an incredibly minor arrest like that, of a pathetic, hardcore addict.

This day, the addict said, “Officer, give me a break,” as I handcuffed him. And I said “Yeah, sure,” because we weren’t paid to give breaks to people who were committing these kind of crimes. My partner, who was senior to me, and ordinarily more sensible—I was the cop who loved to throw on the siren and the red light, and race through the streets, and drive on the sidewalk. And we were always the first car on the scene of a robbery when I was driving. When he drove, we were the last car on the scene. But of course, he was married and had three children.

But this day he went along with the addict, and the deal was that the addict would give us a pusher, and that in return for that, we would let the addict go, “escape.” And we were in police uniform in a marked police car. It was a warm day, and we traveled down Lennox Avenue, following this heroin addict, who we had warned, “Don’t try to run away, because this guy,” my partner pointed at me, “can run much faster than you, and we’ll add a couple more charges if you do that.”

So the addict was never more than a few feet from the police car, because we stayed close to him. And as he walked along crowded streets, he talked to one man after another. And I suddenly felt very humiliated. I mean, after all, here we were, resplendent with our uniforms, our radios, our red lights, our handcuffs and our guns, and people were doing drugs a few feet away. They were doing drug deals.

(break in tape)

Otherwise, we would have looked at the men, and thought they were talking about sports, the weather, or anything. There was no way of knowing what they were doing. It was a consensual activity between people who obviously valued their privacy, to put it mildly. And on the third conversation, the addict, as prearranged, went into the hallway to exchange money, which he didn’t have, for drugs. We wandered in, and sort of by accident arrested the pusher, and the let the addict “escape.”

The pusher that we arrested was also an addict. He was selling small amounts of drugs just to finance his own habit. But what struck me that day is that the police really are totally ineffective in normal police work against drug crimes. This is probably occurring millions of times a day right under the nose of the police, and there’s no way that they know about it.

Now, when the police are pressured to make more arrests, as they have been by their own departments, but pushed very hard by the Federal government. The Federal government has taken over an incredible amount of police training, local police training in the United States. The police are subjected to a constant barrage of what I call propaganda: drug users are evil, immoral people. This is your job, fighting good against evil, and so on.

The difficulty of enforcing the drug laws—as compared to let’s say a robbery or a rape where there is a victim, there are witnesses, there’s physical evidence, someone calls the police, there’s a degree of community outrage—is the police don’t know who’s doing drugs, unless they use very questionable methods. The detectives who were involved in the scandal had been—

David J. Theroux

We just—he has to change the tape in a second. Sorry.

Joseph D. McNamara

The DEA wants a new tape? (laughter) I’ll get a glass of water while (inaudible) I find the Federal government does this to me wherever I speak, so it’s no difficulty. (laughter)

So the—I’ll tell a couple more jokes about Ethan while I’m waiting here. (laughter)

David J. Theroux

OK. Go ahead.

Joseph D. McNamara

So when you put this pressure on the police, and understand that it comes from a number of different sources. I went to a lot of community meetings as Police Chief, and when you met with community groups, they wanted the police to stop drug selling and drug use in their neighborhood. They did not want a lecture on the Constitutional law. They didn’t want any excuses. Their view was we want these drug pushers arrested, you know who they are, and trying to explain that we really didn’t. And we want you to drive the drugs out of our neighborhood to protect our children.

You can’t dismiss this. This is a very valid concern for people who live in neighborhoods where there’s an open drug market, and certainly, of parents in general. And so the pressure is put on police in a number of ways.

What I’ve been working on, and have discovered in the last nine years of my research, is that the police brass develops an attitude, and the Federal government has really reinforced this attitude. Certainly their own agents have that attitude, that you can’t handcuff the cops. When they go after drug pushers, the pushers use all sorts of subterfuges and so on, and so it takes extraordinary methods to use this.

Now at the same time, as was mentioned earlier, the country is still flooded with drugs. Back when I was a rookie, there used to be an occasional shortage of drugs. When the Feds made a big seizure, and the price would temporarily go up, people would use other drugs as a substitute.

Today that doesn’t occur anymore, and the police get demoralized. As a result of that, any number of police—I calculate that I, in my research, have found more than a million police crimes committed in the drug war. Police officers from uniformed officers, to elite narcotic squads committing murders, armed robberies, stealing drugs. I call them gangster cops. Instead of taking pay-offs from gangsters, they are the gangsters. And this has been something spread throughout the country over 40 years.

The reason for it is that you have modestly paid police officers who see it’s hopeless. Their efforts have become hopeless. Many of them rationalize their crimes by saying we can’t do anything about it. Why should the enemy get to keep all the money?

Within the last two weeks, New York has experienced yet another case of this, involving at least 10 officers. Two detectives, veteran detectives, were observed by a team of Federal officers, who had a drug courier under surveillance, robbing the courier. The investigation began from there, and they found each of the detectives had about $700,000 in cash in a safe deposit box.

And I found this over, and over again: detectives, other cops, stealing millions of dollars over a period of years, in police agencies, and none of the other cops seemed to notice. Why? The code of silence, the vested interests of mayors and police chiefs, of minimizing scandal, putting the spin on: “It’s only a few rotten apples.” In fact, it often turns out to be the most decorated officers in the department.

So I’m completing a book called Gangster Cops: The Hidden Cost of America’s War on Drugs. It’s been neglected as a national phenomenon because policing is so local, but it has been small towns, the big cities, East Coast, Midwest, West Coast, patrolmen in uniform breaking into people’s homes committing armed robberies, to the chief, or sheriff himself, or herself. And this is a scandal that I think we have to make the public aware of. We have to make the police acknowledge this, and recognize it as a cost of the drug war. Thank you. (applause)

David J. Theroux

Thank you very much, Joe. Our third speaker is Ethan Nadelmann, who is Founder and Executive Director of the Drug Policy Alliance. Ethan received his Ph.D. and JD from Harvard University. Joe also received his Ph.D. from Harvard, I should mention. Ethan also received his MS International Relations from the London School of Economics. He is author of the book Cops Across Borders. His articles have appeared widely, ranging in such publications as Science, Foreign Affairs, National Review, American Heritage and elsewhere. We’re very pleased to have Ethan Nadelmann. (applause)

Ethan Nadelmann

Founder and Executive Director of the Drug Policy Alliance
Author, Cops Across Borders

Thank you very much. I just— since we are going on a bit, why don’t we just take 30 seconds, if you want to stand up for a second, stretch, all right, just to take a breath. OK, that’s enough. (laughter)

So I thought it would—and I’m going to talk fast, because you’re getting tired, and I’m from New York, and I talk fast anyway— I thought what might be useful, because in hearing Jeff’s analysis, and Joe sort of talking about his evolution, just to put it a little bit in terms of my own evolution, I mean, in terms of the drug policy reform, in sort of four stages.

I mean, the first was, in my youth, as a police chief when I was—(laughter). No, but actually, not quite the police chief, but 20-odd years ago doing graduate work, and I was very curious about international drug enforcement and control. And I actually, in fact, did get my self a security clearance, a secret security clearance. I did go work in the State Department’s Narcotic’s Bureau.

Joseph D. McNamara

(inaudible).

Ethan Nadelmann

Yes, a long time ago. And I did write the first State Department report on trying to deal with drug-related money laundering around the world. And I did go around the world interviewing drug enforcement agents in South America, Europe, go on operations, get to know the guys who are doing this stuff.

And what, you know, what becomes apparent when you do that is they’re not thinking about that they’re doing. They’re thinking about how to do what they do, but they’re not thinking about what they’re doing. And I even had access at that point to at least the secret and top secret stuff coming out of the intelligence agencies, and the analyses. And there was nothing in the way of really thoughtful analysis. It was like, “Which group’s trafficking which, this, that, who’s corrupt?” But nothing in the way of looking at the consequences, or the unintended consequences of the policies, or the alternative policies.

I mean, you just saw people going along, going along. And what I also became aware of was that on some level, there was almost a willful ignorance, I mean, a willful desire not to ask certain questions. It was not allowed to put those questions on the table.

And I can tell you something; it was bad in the late ‘80s, it was almost as bad throughout the ‘90s, and it’s worse now than ever. It’s worse now than ever. Just not allowed to ask research questions, not—because even to ask the question is to suggest that that’s what you want to have happen, right? So there is a total absence of critical analysis on the part of Congress, the part of the administration, almost anybody else. That was my first awareness.

The second one was coming out of that, and basically the stuff that Jeff’s been talking about. In the late ‘80s, starting to write and think about all the consequences of prohibition, and realizing the extent to which most of what we identified as part and parcel of the drug problem are, in fact, the results of drug prohibition, the analogy to alcohol prohibition. Right?

And seeing, in fact, the extent to which those in power, those promoting the drug war, wanted to keep a confusion going. They did not want people, and they do not want people, distinguishing between the negative consequences of drug use, and the negative consequences of prohibition. They want the mishmash. They want the confused thinking, to the extent that their own thinking is not confused. Because there are some people whose thinking is not confused, who are promoting this policy.

You know? And so it was pivotally important—that’s what Jeff does so beautifully in this book here—it’s really to distinguish what are the negative consequences of prohibition. Because it’s only through that awareness of it, that same awareness that seized people in the late 1920s and the early 1930s and caused them to repeal the 18th Amendment and end the prohibition of alcohol, understanding that Al Capone was not about booze, it was about prohibition. Understanding that the violence and corruption were not about booze, they were about the prohibition.Understanding that even the overdose fatalities, the people dying of bad wood alcohol, and all of this sort of stuff, was about prohibition.

Well, that led to a third phase. And I just want to talk about a little more. Because the question does arise, and it kept arising. What is the optimal drug policy? What is the optimal model? I mean, there are some people who are diehard libertarian, and for them it’s not a consequentialist issue; it’s a matter of rights. And you have a right to use, a right of your body, a right to buy, sell, right to property. Damn the consequences, we believe legalization is the answer. Right?

But there was another perspective, and that perspective was emerging under the rubric of the term “harm reduction.” It was the one that said the optimal drug policy is the policy which most successfully reduces two things: reduces on the one hand the negative consequences of drug use, right—overdoses, addiction, disease, cirrhosis, all of these sorts of things—and on the other hand, reduces the negative consequences of prohibition: the crime, the violence, the corruption, all of these other sorts of things. And that the optimal drug policy is the one which most successfully achieves the dual objective of reducing drug abuse, and reducing the harms of drug prohibition.

And the question was, OK, what is that optimal policy? What does it look like? Right?

Now, there were some who are firmly convinced from a libertarian perspective, who said the optimal policy in terms of reducing drug abuse and reducing the harms of prohibition, is the full legalization model. Go there. That’s, to some extent, a suggestion of just study. Right? And in fact, that may well be the right answer.

But I was curious about what happens when you bring a cross-section of people together? And so I was teaching at Princeton at that time, and I pulled together a group of 18 scholars from about a dozen disciplines, and we called it The Princeton Working Group on the Future of Drug Use and Alternatives to Drug Prohibition. And they were from, you know, names you’d—Andy Weil the natural medicine guy; Lester Grinspoon and Sasha Shulgin; Marsha Rosenbaum, who’s sitting here right now; John Morgan and Lynn Zimmer, who subsequently wrote the book Marijuana Myths, Marijuana Facts; Harry Levine, who authored the essay that David just mentioned; Robin Room, who used to run the Alcohol Research Group, Ken Warner, a distinguished public health economist at Michigan‘ Silvia Law, distinguished NYU law professor—just a, I mean, a really remarkable group of people.

None of them ideologically sort of Libertarian in a kind of Milton Friedman sense. All of them highly critical of the drug war. And our challenge was to design the optimal drug policy. And we had these spectacular sessions. This was in the early 1990s. And we finally got—and the way I put it out to people is let’s imagine this. I said let’s imagine, take two—take two extremes. At one extreme, imagine that we have the current situation of drug prohibition. And ask yourself how can we modify, and decriminalize, and public healthasize prohibition as much as possible to reduce its negative consequences without inviting substantial increases in drug use?

So stretching from the prohibition model through what’s called harm reduction. You know, through decriminalization, and needles, and methadone programs, and heroin maintenance, and all of these sorts of things that the Europeans are starting to do.

And then on the other hand, let’s imagine a really total free market, total free market in drugs. Right? Which for most people conjures up a nightmare scenario of rampant drug addiction, and drug abuse and Sodom and Gomorra and all that sort of stuff. And which, it’s hard to argue. You can’t prove it. I mean, Jeff makes a persuasive case that it’s not going to go there, and my gut feeling is it’s not going to go there. But you could—

And how do you then put on there increased taxation, increased restrictions, regulations? Think about cigarettes for example. You know, we’re trying to reduce cigarette addiction, and the cancers, and all of that stuff. What sorts of additional controls could you put on to try to reduce the harms of drugs without inviting the harms of prohibition? And to try to take these two models, and stretch them together, and see if we could get right in the middle and figure out that optimal policy in the end.

And so we got to the third session of these things, these amazing weekend meetings. And we got to basically the $64,000 question of the drug legalization debate, which is, do you believe that there should be any government-sanctioned gatekeeper: a cop, a doctor, a pharmacist, whoever, between the producer distributor of these drugs, and the consumer? In other words, should it be over the counter, or should there be something resembling a prescription thing, or a prohibition, or whatever? Right?

And so we voted. We took a vote of the 18 of us. You know, do you believe that there should be some government-sanctioned gatekeeper, which would mean not really full legalization, or not? And the group split right down the middle. And we spent the entire day hassling this out, and thinking it through, and debating it, and we voted again at the end of the day, and the group split right down the middle again, but people had switched sides. (laughter)

And what I came to realize is that for the large majority of people I know who really aren’t viscerally fully libertarian, but who empathize with legalization, they’re essentially legalizers three days a week, or four, and not legalizers the other days. Or they’re legalizers at that moment, but not at that moment.

That’s what happened, and essentially, what would distinguish that group—and also what distinguishes that group as a whole from many of the prohibitionists—was ultimately not susceptible to the type of analysis that Jeff was offering. Because what it really boiled down, what the divide was really about, was inherently visceral. It was about a visceral, emotional feeling about the vulnerability of human beings in our society, or in modern society around the world, to the greater existence of powerful and not so powerful psychoactive substances.

And so that deep down, right, Jeff believes, based upon analysis, but also I think on some visceral level, I would suspect, that people are not that vulnerable, and we have lots of evidence to show that. And deep down, I’m just a step away from where he is. I’ve a few more doubts, but there.

But deep down there are other people, including people of good will, who just feel—maybe it’s because they have addiction running in the family, because they’ve seen the devastating consequences of alcoholism or other drug addition, or maybe because they just feel most people are rotten—if you give them the chance to fuck themselves up, that’s what they’re going to do. You know? (laughter)

I mean, but that—and they—and so you get for example, the former Drug Czar, Bob DuPont under Nixon, he—you know, ‘If you legalize cocaine, you’re going to have 50 million junkies.” And you say, “Bob, where did you get that number from?” You know? “Well, but you know, cocaine, look at the rats and the monkeys.” You know, “Well actually Bob, you know those rats and monkey studies, yeah, if you put a monkey behind bars and you give him cocaine, he’s going to mess himself up. But you know, if you give those same monkeys in the wild cocaine, they go (sniff) OK, and walk away from it after a while.” It’s about context, and about setting and stuff, right?

So finally I said, is there a model here that can compromise this thing? Is there some model that stretches these things together, right, and that comes up with something that can both gut prohibition on the one hand, but also respect the concerns and desires of public health people who are not at all libertarian. Right? They’re about trying to control and reduce harms, and reduce self-harms. Right?

And the model that we came up with out of this whole thing, I would best describe it, and it’s a model, a model, with all the flaws on it, a model. But we called it the mail order model. OK? And this was the idea. Because if people are really afraid about legalization, realistically otherwise is that—
what’s going to happen is that – “You know, I mean, you want to have people marketing methamphetamine and cocaine, and selling it like cigarettes, and booze, and sexy girls – I mean, what do you want?” – that’s just a fear, and it might be a valid fear. Right?

And so the idea was imagine if you will, right, first, that everybody in America, at least adults, has assumed a right, a right to possess and to consume at lest a small amount of the substance for your own use. Let’s regard that as a human or/constitutional right, that you have a right. And that from that right, grows what you might call a second right, a right of access, a right to obtain that substance, anything, whatever it might be, from a legitimate source, that would be civilly liable for misproducing or misrepresenting its product.

Now, you don’t want to market all over the place from Adrial’s perspective, so then imagine you have just one source in America, let’s say like a vitamin house in Iowa. Right? And that anybody in America, right, could dial up, call up, fax up, or we didn’t actually do an e-mail back then, but e-mail. Right? And give your credit card number, and maybe you’d have to build in some proof-of-age-type system or something like that, and you could have, within 24 hours, or by mail, if you prefer, sent to you, wherever you are in the country, up to a certain amount, of methamphetamine, marijuana, mushrooms, LSD, whatever it might be. Right? And that where you live, states and localities, could do what they wanted. If New York wanted to allow marijuana to be sold in tobacco stores, that’s fine. If Mississippi wanted to be totally dry, no advertising, no nothing, that’s fine.

But wherever you were, if you’re a New Yorker down in Mississippi on business, you would still have the right to obtain that package overnight delivery to you, that you could consume right there in privacy, and you would be legal. And it seemed to me that maybe that was a system which effectively gutted prohibition. I mean, you still have black markets for people who want to get it in less than 24 hours. You might have black markets for kids. Right? You would have—and in fact, you’d probably have even little groups. But there would be no way for organized crime in this market to grow vast, because anybody could get it from a licensed source within 24 hours.

On the other hand, all the fears of the big promotion of drugs, and the widespread availability, and the widespread acceptability, and all of that sort of stuff, well, that would be nullified in a way, because there is always this vitamin house type of thing. And in fact, if you look even at some of the models for that, I mean, here are like elderly people who can get all sorts of prescription drugs. I mean, now anybody can get drugs on the Internet. But before elderly people could get it that way, and there are other models.

So we came up with that model, and I published a paper in the journal Daedelus about, in the early 1990s, and the piece was called “Thinking Seriously about Alternatives to Drug Prohibition.” Those of you who want to see it, go to our Website, drugpolicy.org, and you’ll find that paper. And we published that paper, and I have to tell you, there was no market for it. Nobody was interested. You know, Charlie Rangel kept saying, “Hey, let me know your model. Who’s going to do it? Who’s going to sell it? Who’s going to this it and that it?”

And OK, we gave them answers. Snore. He didn’t care. You know why? Because 90 percent of Americans weren’t going for legalization, and 80 percent weren’t even going for legalization of marijuana. And it wasn’t really—
the questions on his part were farcical, they weren’t real.

Which led me to a conclusion. Which was maybe the next thing to do in life would be to try to create the market for that argument. Right? Let’s build a movement. Let’s build a political movement to try to end the war on drugs and turn people’s lives around. And basically that’s what I’ve been trying to do with a bunch of my colleagues, some of them right here, is trying to end the war on drugs, trying to change consciousness. You know?

And I only got probably a few more minutes, so just to whip it up what I’ll say is in terms of my own evolution, whereas the first phase was understanding how the drug enforcers did what they did, and the second phase was sorting out what were the consequences of drug prohibition, as opposed to the consequences of drugs. And the third phase was trying to figure out ideally what would be the optimal model.

The fourth phase, which is now going on basically ten years, is how do we transform public opinion, and ultimately public policy and the laws? Right? And what we’ve done, what I and my colleagues have done, is to try to build a powerful national advocacy organization, a Drug Policy Alliance. You know, you got 50 of us now working around the country. You got 20 people in California, 25 in New York, a few others in a few other states. And we’ve got 20,000 members. If you’re not a member yet, please join. Go to drugpolicy.org and join in support.

But, I mean, basically, the idea is this. It is to keep in mind the vision of where we want to head. The vision of basically gutting drug prohibition, of ending drug prohibition as we know it. That harm reduction vision of the optimal policy being to reduce the harms of drugs and the harms of prohibition, and based upon a core fundamental notion that nobody, nobody should be punished, in any way, simply for what they put in their body. That’s a core, core notion. We regard it as a core human rights notion, and we also regard it as fundamental to good public policy in this area.

And that means keeping that vision always in mind, yet spending the vast majority of our time and our effort on the incremental, nitty-gritty political work of working and changing the way people think and act, and that’s what we’ve been doing.

You know, in the mid-‘90s we realized that a majority of Americans were beginning to say medical marijuana should be legal. The first issue where a majority of the public were peeling off. Right? And there was a local initiative that was getting going here, and we got in, and we jumped in and we supported it. It was Prop 215 in California. And it opened up a whole wonderful set of things. And then we took those initiatives to other states, in Alaska, and Oregon, and Washington, and Colorado, and Nevada, and even DC, we won those things. And then going through the state legislatures, and winning that way; and trying to legitimized and legalize the distribution of marijuana for medical purposes.

Then we saw the asset forfeiture laws. That when you told ordinary Americans, you know, that they could lose their property without having to be convicted of a criminal offense, and that the cops, the prosecutors who seized it got to keep it for their own departments? Right? So it’s the exact stuff that the founders of this country recoiled against? Right? Well, we did ballot initiatives on that in Oregon and Utah, won both of those two to one.

And then you saw that people were saying you know, “We’re locking up too many people. If people have a drug problem, let’s provide treatment instead of incarceration.” And we did. First there was Prop 200 in Arizona in ’96, and then Prop 36 in California in 2000, which you guys should be proud, because that is the single most significant piece of sentencing reform legislation in this country since the repeal of alcohol prohibition. Tens of thousands of people, who would otherwise be behind bars, are not behind bars because of the law that you guys voted for, 61 percent of the vote in the year 2000.

Not that the people who oppose it aren’t trying to warp it and bring it back to what it was, but it was understanding where the public was at, and meeting them where they were at, while always keeping the vision of where we’re going.

Now, where’s it going and how do we get to that next stage? Very quickly, here is what I think. I think first of all, I think that the marijuana reform movement has a lot to learn, and resembles a lot the gay rights movement. You know? It’s all about a transformation. It’s not just the policy arguments, it’s not just the stuff in the courts, it’s also understanding—It’s about people—100 million Americans have smoked pot. Right? We can’t even find a presidential candidate who will deny using it anymore. (laughter) Right? It’s out there. Half of all Americans between the ages of 18 to 55 will admit to smoking pot, and even more that actually did it won’t admit it, or they can’t remember. (laughter)

But there is an evolution. It’s people coming out, and changing—in the same way. And it’s what happens in the TVs and the sitcoms and the movies. And we already see that. Also, by the way, it’s also being attentive to language. If you ask the ordinary American, “You want to legalize marijuana?” 25 percent say yes. If you say, “How about we make marijuana legal?” In other words, don’t use the z in legalize, just say make it legal, all of a sudden it jumps to 30 percent. And then you say, “Well, how about a policy that makes it like alcohol? Tax it, control it, regulate it, and educate kids from getting in trouble with it.” Forty-one percent we got last year, higher than that in California, and close to 50 percent in Nevada and Alaska. Right?

Understand the importance of the language on this sort of thing, and also understanding that for many people their greatest fear about legalization is that they think that means loss of control, out of control. And that when you try to point out, well, actually, prohibition represents the abdication of control. They don’t quite get that part. There is a fear that legalization means condoning or out-of-controlness. Right? So understand the public wants control. In this area, control, regulation, sin tax, are good, good, good, even for conservatives, and even for many people who are quite libertarian in their thinking on this stuff.

Secondly, medical marijuana. Right? You guys, Oaksterdam, right? Medical marijuana—I think that medical marijuana, if, in fact, we can go to the next steps, where localities and states begin to buy into the regulation and control of this, the same way they are in Canada and some other countries now, where the state becomes a participant in it—I mean, they’re already doing patient ID’s, but go to the next level on distribution, so it’s controlled, that becomes a model.

And then the question is what’s medical? Right? Marijuana helps a lot of people in a lot of different ways. So does alcohol. All of a sudden we now find out that two drinks a day is like almost better than jogging for your cardiovascular stuff. (laughter) You know? Literally. (laughter) That was a front page story that—Yes! Quite! I’m telling you. Read that New York Times front-page story based upon dozens and dozens of scientific studies.

What’s—Viagra. Right? OK, it’s medicine, yeah, right. (laughter) But I mean, it’s the whole idea of “prescribed”—and the same thing with marijuana. People use it like the drink at the end of the day. They use it for this. They use it for that. It’s an antidepressant for some people. It’s a Viagra for some people. It’s a this, it’s a that.

And so I think that medical marijuana may provide that controlled regulatory model that can ultimately be expanded to allow for the distribution for the recreational user as well. Now that’s marijuana. And since half the drug arrests in this country are about marijuana, and probably about a quarter of all the people behind bars on drug charges are on marijuana, we’re talking a lot. We’re talking $10, $20 billion dollars a year on marijuana enforcement, and we’re also talking about—we’re talking about potential tax revenue from this stuff.

Now on the other side, with the other drugs, there we’re talking about what’s called harm reduction. You know? Ninety percent of Americans aren’t going for legalization. The question is how do you try to pull back the criminal justice piece? And that’s a few pieces there.

One, it means, challenging over, and over, and over, the notion that people who sell drugs to other adults are morally the equivalent of rapists, and murderers, and other violent criminals. That’s bull. Right?

As far as I’m concerned, people who sell heroin, and cocaine, and methamphetamine to other adults, and sell good quality heroin, and cocaine and methamphetamine, are no different than people selling good quality booze, and cigarettes, and other things that can be highly dangerous to many consumers, but not most. That’s where they are morally. And we have to bring those penalties down, down, down, so that we begin to look at them in a whole other way.

And then for the person who is a drug addict, you know, that’s about alternatives. That’s about providing people treatment. Treatment, not as kind of, you know, this lock-them-encounter-group—I mean, it helps some people. But I mean, treatment defined as whatever helps people get their lives together, even if they’re still using drugs.

And here is the thing where we have to be most careful, and this is what’s going on with Prop. 36 right now. You know, it’s going to have to be renewed for the funding pretty soon in California in a couple of years. The question is, when we divert people into “treatment,” are we really getting them out of the criminal justice system, or is this just becoming a way for expanding the criminal justice system to include more, and more, and more people? That’s what we need to be attentive to.

Now, what can you do? What can you do? You live in Oakland. There is going to be a ballot initiative here. Did they—are the sign up forms, are they around on the table outside?

Audience Member

No on the table. I (inaudible)

Ethan Nadelmann

Go to that guy right there, Dale Geringer, head of this campaign. Oakland is going to have a ballot initiative, but first it needs to get the signatures. OK? My organization is investing in this, so are others, and it basically says two things. It says that the people of Oakland believe that marijuana should be made legal, and that when the state does it, we’re there.

And it says secondly, since Oakland can’t do that by itself until the state does it, we’re going to make marijuana enforcement the lowest priority. Right?

I mean, I spent this morning, I spent 45 minutes with your mayor this morning. I said, “Look, at least don’t oppose it.” He said, “Marijuana already is the lowest priority.” I said, “Good, you’ve got nothing to be against then.” So I mean, maybe that will happen, but support that initiative. Be attentive to what’s going on in Sacramento. We have a Sacramento office that has become the office for sensible drug policy.

And finally, join the Drug Policy Alliance. Decide that this is going to be a priority issue for you. You know, make this issue number one, two, or three. Get involved. Do it. Thanks. (applause)

David J. Theroux

We have some time for questions. Carl has the microphone. The lady right there? Hold the microphone horizontally, if you can. It’s already on. Don’t worry about it.

Audience Member

I have a question— Hello, is it on?

David J. Theroux

Yes.

Audience Member

I have a question for Joe McNamara. It has to do with Federal funding of local police. And the question is, do most local police forces get a certain percentage of Federal funding for their narcotics enforcement, and how does that influence their policies towards drug enforcement in general in their communities?

Joseph D. McNamara

Yes. The Federal government is rather generous for enforcement, and in fact, demanding of local police, and also, in the seizure of property. We’re talking about billions and billions of dollars, and the Federal government loves to distribute checks to local law enforcement people in civil seizure cases, where there is no presumption of innocence, and the saying in police work is the police have become addicted to seizure money.

When I was chief in San Jose, my city manager sent over a proposed budget with zero dollars for equipment. So I politely went over and I said, “You know, it’s traditional when you have a police force, that you buy police cars, and guns, and equipment for the cops.” And he laughed and he said, “You guys seized $4 million last year, and I expect you to do better this year. And it will be involved in your job assessment.”

And so that’s the corruption that has really sunk into this whole enforcement process. The Federal government part of that, and I think Ethan—no. Who? One of my colleagues said $30 billion a year of Federal money, a lot of it does go to local law enforcement. And there is a lot of hidden money in law enforcement training programs, where the top brass is transported twice a year to nice resorts, and the DEA always gives a presentation, and they always pick up the tab.

And the presentation is always the same. Here’s the good news: We stopped opium production in parts of Afghanistan. We disrupted some cocaine production in Columbia. Here’s the bad news: that the major opium production is now coming from the liberated part of Afghanistan, where allies are. And the bad news is the other Andean countries have picked up the production that was curtailed somewhat in Colombia.

So it just goes on and on. I think as Ethan says, there is no measurement here of any progress. It’s a jihad. It’s a holy war. It’s one that they feel you have to fight. It doesn’t matter whether you win or not, you just must make the fight.

But the power of the Federal government over local law enforcement during the years that I have watched, I can’t believe. We were always drilled into us that a national police force meant the end of liberty in our country, but policing really has become more and more under national control, and the threat of terrorism is just increasing that tremendously. And local governments are hurting for cash, so they turn to Washington, as everyone else does. And that, when you take the Yankee dollar, you sing the Yankee song. And that’s what’s happening with local law enforcement.

David J. Theroux

Gentleman right here.

Audience Member

I wanted to ask Jeff if you had put an age limit on access, and how would you enforce that?

Jeffrey Miron

I didn’t talk about any of the sort of, I call, in-between issues. If you’re going to do something besides out and out legalization, are there halfway houses? Are there partial measures, such as sin taxes, or age restrictions, or advertising restrictions, or things like that?

Personally, I would not. The argument for age restrictions is that kids are not, at least some kids are not ready, mature enough, smart enough, thoughtful enough or whatever, to use automobiles, or alcohol, or cigarettes or drugs. OK? That’s undoubtedly true. But I think all of our evidence suggests that the age restrictions are ignored a lot more than they’re obeyed, and almost all the kids who really want to get the stuff, get it

And so I think what the age restrictions mainly do is teach kids not to respect the law. And to some extent, I think the age restrictions teach parents—give parents a false sense of security that somehow the law is taking care of this problem, so they don’t have to worry about it themselves.

So I think that since it’s a matter of practice, kids are going to get it with or without the age restrictions. It would be better to just be up front, and honest, and clear and say, “Yeah, this is something that parents have to deal with. If the kids get messed up, it’s something the parents and the kids are going to have to handle.”

David J. Theroux

It’s a question of whether the government sets the age restrictions, or the parents, or the school, or other institutions.

Audience Member

Yeah, this is a question for—oh. This is a question for either Jeff or Ethan, and it’s really this. Will people be responsible for the consequences of their actions, irrespective of whether they’re on drugs or not? In other words, Mill’s point, the English philosopher’s point, was that people are responsible for the consequences of their actions. In other words, it’s no defense to say that I was under the influence of alcohol, or of drugs, and that’s why I ran over this person, or that’s why I killed this person. Are you prepared to go that route?

Ethan Nadelmann

That’s certainly exactly the route that I would go. I’m not going to assert that everyone will act responsibly, and I’m not going to deny that some people will attempt to avoid the consequences of their actions by trying to blame it on some substance that they consumed, or whatever.

Audience Member

Well, it has been a traditional defense, hasn’t it?

Ethan Nadelmann

Prohibition— prohibition doesn’t prevent that, so I think that’s a given. And indeed, I think to some extent, prohibition promotes not taking responsibility, because promotion creates drugs as these demons, as these all-powerful things that are so horrible, that we have to prohibit them. It gives them more, far more power than they actually have, whereas if they were legal, there would be a little bit more tendency to say, ”Look, you made the choice to consume it. OK? Now bear the consequences.”

Audience Member

I feel obliged to make a statement rather than a question. I spent three years, if you will believe it, as president of a League of Women Voters up in El Dorado County. They let men in too. We spent two of those years doing a study on the effects of drugs in our county.

I found several things. One of the things, we interviewed people from police, to nurses. A comment by a nurse at a school that registered heavily with me is, “Prohibition doesn’t stop kids. It actually—the excitement of doing something that’s against the law, will cause some of them to use the drugs they wouldn’t otherwise try.”

Incidentally, the result of that two years steady, our League, which we can’t speak of now because it’s not a national policy, so we can’t—agreed that marijuana should be treated the same as alcohol, and that other drugs on Schedule II and III should be treated the same as those drugs on schedules III, IV and V; available by prescription, and monitored by the Food and Drug Administration.

Now, this is not ordinarily a very radical organization. And it took a lot, there was a lot of blood on the floor. The biggest problem was getting anybody to do the study.

David J. Theroux

That’s what Ethan said.

Audience Member

And I’ve—Ethan is familiar with the book Drug War Facts that you put out and so forth.

Jeffrey Miron [?]

Um-hum.

Audience Member

I found it too big. I found problems getting somebody to read the facts. And I have another organization to which I belong, has put out a little book, which I have with me, about a 17-page hand, pocket-sized like this. And if you could get something out like this, with just the facts, ma’am, just the facts—you’ll get more people to read it.

David J. Theroux

Thank you.

Audience Member

And there is another issue that I think you have ignored, I’m sorry. And it’s Catherine Austin Fitz, the Former Assistant Secretary of Housing under Bush I, has an article on the Web called “The Myth of the Rule of Law.” You can all go to it and pull it up. I recommend everybody read it. Just point your search engine to “The Myth of the Rule of Law.”

The reason drugs have to be illegal, from a Federal government point of view, is the money that is generated, and is needed by our economy. George Soros, in an interview with Michael Rupert, pre-Enron, estimated that 50 percent of the value of our economy was sustained by illegal activities.

Those two activities he mentioned were the kiting of corporate profits in order to inflate stock market values, and the laundering of drug money. Because drug money is cheap money, and cheap money gives those who have it a competitive advantage against those who don’t.

And I think unless we recognize that fact and make the people realize that’s the reason the Federal government dumps on medical marijuana, because they can’t afford the leak in the dyke.

David J. Theroux

Right, ok. We have other people that have some questions too. Thank you. How about the gentleman right here in the green?

Audience Member

So the war on drugs has brought a lot of power to the Federal government, and it would seem that power is perhaps the most addictive drug of all.

Audience Member [?]

You’re right.

Audience Member

Do we think that we can actually, you know, get the Federal government to back off, or are they going to keep trying to just—instead of acting rationally or reasonably, simply push their policies through by force of will?

David J. Theroux

Who wants to address that?

Ethan Nadelmann

Well, it’s a process of working at the local level first, changing state policies, and then sending the message up nationally. I’ll tell you something very interesting happened last summer. There was an Amendment introduced in the House of Representatives co-sponsored by a liberal New York Democrat named Maurice Hinchey, and Dana Rohrbacher, the Republican from Southern California.

And what it would have done would have been to prohibit the Justice Department from spending a penny to go after the medical marijuana outlets in California and the other states that had legalized marijuana for medical purposes. And before, you know, we would have been lucky to get, you know, 30, 40 votes from Democrats, and maybe three or four from Republicans.

But this time, you know, a number of things had happened. One was that we now won initiatives in a number of states representing like some 35 percent to 40 percent of the entire population. The second thing that happened was the public opinion polls were showing 70 to 80 percent supporting medical marijuana.

The third thing that happened was that I was—I’m now in a position where I can access the Democratic leadership of the House of Representatives, not directly, but that there are people on my Board, or friends, or funders, or supporters, who when they call Pelosi, or Gephardt or Nedalowe (sp?) or Rosa Deloro the Minority Whip and head of the—you know, their calls get taken. And these people want to make those calls.

And the result was that 70 percent of all the voting Democrats voted in favor of this Amendment, and a dozen Republicans voted in favor of it, and many more said that had it been a vote of conscience, they would have done it. Now this is going to come back around again, so I think it’s just a matter of time.

But now mind you, it really depends also, it’s about political organization. You know, I mean, the NRA is powerful, not just because there are a lot of people who feel strongly about the issue, but because it’s an organization that actually is able to bring that stuff for them to focus in the way of a political fist. And that’s what has to happen.

David J. Theroux

Your question actually relates also to the purpose of Independent. Because the mission of what we’re involved in is to bridge the gap between the problems that people are facing, and perhaps the mythology, or misguided notions that people believe is the case with policy. How about the gentleman right here?

Audience Member

Thanks. One of the things that’s surprising to learn about today’s prohibition, or about alcohol prohibition, is that it did not criminalize possession or use. My question, and I’m not—it overlaps each of your areas, is how has today’s prohibition that does criminalize possession and use, how—how different is that than the alcohol prohibition model, and how has that impacted our society compared to alcohol prohibition?

Ethan Nadelmann

I think it’s a little misleading to say, although technically accurate to say, that alcohol prohibition didn’t criminalize possession and use. It’s true that the Federal Constitutional prohibition did not, and the Volstead Act which implemented it, did not. But the state laws in many states basically treated possession of small amounts as intent to distribute, intent to sell, intent— so they got around the language to a great degree, if they wanted to.

So the critical question was were the authorities, state or Federal, attempting to enforce those laws vigorously? There was a lot of heterogeneity across states, and I think on average, the degree of attempt to enforce alcohol prohibition was less than what we currently have with drug prohibition now.

But to me, that emphasizes the point that it’s not whether you criminalize use, the supply side or demand side. If you do either side, it’s basically the same as doing both. And that’s why I think the decriminalization approach is misguided. It’s at a minimum bizarre to say it’s legal to buy it but not to sell it. OK? And you’re going to have the same effects if you vigorously try to enforce a prohibition against the supply side, against the trafficking, whether or not you legalize the demand side.

David J. Theroux

Two last questions. How about the lady right in the back there?

Audience Member

I’ll be the lady. Thank you very much. My name is Rebecca Kaplan, and I live in Oakland, and I’m a local elected official, and I’m also helping out with the Oakland Cannabis Initiative. And there have been some amazingly hopeful things happening, and one of them is the confluence of different interests that all lead to the same conclusion.

And I think that it’s much easier to start with cannabis and get people on board, because the visceral fear that people have when you say heroin or cocaine, they don’t have, at least here, we know, around cannabis, and the latest national polls show a majority agreeing that cannabis is less dangerous than alcohol. So that’s a very hopeful sign for people accepting that it should be modeled similar to alcohol, if it’s not any more dangerous.
My question was in terms of the coalition building aspect: that there’s a lot of people whose prime concern is around ending the growth of prisons. And in California right now, with the prisons having just declared a state of emergency, there’s a lot of people who don’t care about cannabis one way or the other, but they sure care about dealing with the burgeoning prison crisis. And so I’d be curious if anybody has anything to add on that. Thank you.

Joseph D. McNamara

You know, I think one of the ironies of that is we may change policy for the wrong reasons. If you take a look at the terrible destruction of lives that we’ve become callous to as a society—and it relates back to the last question too—that we’ve allowed the dehumanization of people using certain substances, but if they use Prozac, or they use some other mind-altering substances, we don’t view them the same as someone using cocaine, or heroin, or marijuana.

And there is an actual growing hatred, it seems to me, on the part of many of your colleagues in Congress and in state legislatures, that are fanatical. They don’t want to even just jail people, they want to deprive them of their driver’s licenses, of their college aid. How many lives are we ruining?

I think Ethan mentioned all the prominent politicians who now ‘fess up to using marijuana. But if they had been busted under today’s Draconian laws, they wouldn’t have had successful careers. And that’s another cost that’s never figured out.

So I think as much as I have worked with Ethan for 15 years, that we shouldn’t forget that for the first 140 years of this Republic, your right to life, liberty, and the pursuit of happiness included the right to use any substance that you wanted, and to sell it. Bayer Aspirin sold heroin tablets for children that you could buy, and you could buy other drugs in the store. And it related back to the Declaration of Independence that this was our right inherent, that we were born with. It’s not the Federal government, or any government’s right to dole out certain rights to us. We own those rights, and we should insist that they not take them away “for our own benefit.”

And I think if we stick with that principal, and bring out the prison situation, bring out the police corruption, bring out the judicial corruption, bring out the routine violation and erosion of civil rights that we all held dear, that you come back to one essential conclusion: that the criminal law should never be used against chemical substances. It has no means, no logic of being there.

And the policy in 1914 was changed by the action of fanatical religious groups, who inserted their version of sin into the penal code. And that’s what we’re paying for: the stereotypes of drug users that they created a century ago are so strong as the users are immoral, evil people, that we can’t have a rational debate on this. There’s no reason that we shouldn’t.

In fact, there are a lot of reasons that we should, because of the damage that the government policies are doing. And I think that’s the principle that we should never lose sight of. It’s not up to the government to tell us what rights they’re going to dole out to us; we were born with those rights. (applause)

David J. Theroux

One thing I might mention about the question about prisons, we have a new book also, called Changing in the Guard, which relates to this, in part. And of course, the obvious truth that all the panelists have referred to, is the huge incarceration of people—because of the criminalization of use, and so forth, of these drugs, has converted the prisons into warehouses for people who have committed non-invasive acts in most cases. How about the gentleman right here, and that will be our last question.

Audience Member

I wonder if there are other—other countries that have viewed drug use perhaps in a more enlightened way that we might use as models. I’m thinking specifically about, for instance, the death penalty code that a lot of other countries now are against. And I wonder, is the same thought processes going on in other countries concerning drug use in terms of liberalizing it, that we might use as the model?

Ethan Nadelmann

I mean, the answer is, yes. You especially see it in Western Europe. You see it in Australia, Canada, to some extent, the Caribbean, Latin America, essentially in a few areas. When it comes to cannabis, which is marijuana and hash, you basically see a movement towards decriminalization, and a de-facto backing in to regulation. You know, the coffee shop system in the Netherlands is not just one or two in Amsterdam, it’s the entire country. And the Swiss recently looked like they were going to leapfrog the Dutch, and actually do a full legalization model; they called it licensing.

But you know, last year the British moved towards decriminalization. The Canadians are heading that way. The Jamaicans just had a Commission that moved that way.

The second area is on the broader area of harm reduction; basically accepting that reducing the harms of drugs, rather than trying to reduce drug use per se, was pivotal. That meant they moved forward with needle exchange, and HIV prevention programs 20 years ago, and with much better consequences than America’s had. It also means that they’ve made methadone available not just through clinics, which can be hard to reach, but really over through doctor’s offices, and pharmacies, making it widely available.

They’ve also begun to prescribe pharmaceutical heroin to drug addicts in Switzerland, Germany, the Netherlands, Spain, and shortly Canada will do the same thing. So you really do see a much more pragmatic policy moving forward in all of these areas.

I think the most encouraging stuff has been in Canada, which was in a place—where we are now, is where Canada was 10 years ago, and they have moved very rapidly. I mean, they are moving far towards decriminalization, and maybe, ultimately move towards legalization of cannabis. They’re going to set up this heroin prescription trial later on this year.

We’re not—sometimes I analogize this stuff historically. You look at America in the 1850s and early sixties, when we were almost the only country left in the West, except for Spain and Portugal, that still had slavery. You know, we kind of fell behind everybody else. And I think in our punitive drug prohibitionist system, we’re doing the same thing.

Audience Member

Why don’t they call it a repeal instead of legalization? (laughter)

Ethan Nadelmann

Mostly because it’s not something so straight forward as an 18th amendment that can be repealed. We would like to. It’s an easier phrase, but there is not the thing that’s clearly to be repealed.

David J. Theroux

I want to thank our three speakers. (applause)

I also want to thank all of you for joining with us to make this evening so successful. Again, there are copies of Drug War Crimes upstairs, and I’m sure that Jeff would be delighted to autograph copies. For those of you who are petitioners, I’m going to have to ask you to do it outside the room, though. But we look forward to you joining with us at future events. Thank you so much. And good night. (applause)