UnAmerican and UnIsraeli
Arnold S. Trebach President,
Institute of Criminology Hebrew University Jerusalem February 4, 1996.
Professor Landau, Dr. Horwitz, Judge Talgam, Professor Sebba,
and friends and family of Professor Drapkin:
My pleasure in being among so many old friends here in the land of Israel knows no bounds. Shalom to you all.
Indeed, shalom - peace - is my dominant theme today. Some years ago I coined a phrase which I commend to you again. I was reflecting on the old joke that in some parts of my country, many people grow to adulthood without realizing that damnyankee was, in actuality, two words. It seemed to me that this could apply to the notion of a drugwar. If there was going to be one word in the minds of all when drugs were mentioned, I submitted that it be "drugpeace" in the future. I will not attempt the full Hebrew translation for drugshalom, but leave that to your superior expertise in such matters.
I suspect that Professor Drapkin, a kindly and gentle giant in the field of criminology, would agree with much of what I have to say today. Of course, I'm not sure if he would agree with everything, because my thinking has progressed far beyond anything we discussed together so many years ago. However, I feel that we would agree on many of the ideas I wish to present.
In so many fields of endeavor, I know that many experts in other countries practice an amazing form of schizophrenia when it comes to the United States. On the one hand, they criticize the aggressive, superior tone of much American policy. Then, they go home and attempt to imitate most of it.
This is especially true in the field of drug policy. It is observed that virtually no country - certainly, no advanced nation - has worse drug abuse and related crime problems than the United States. It is then assumed that the leading American official experts must know more about how to solve drug problems than those of any other country. This line of logic is perverse.
I have spent the better part of the last quarter century in an attempt to show just how perverse it is. Accordingly, I am asking you Israelis not to adopt the dominant American policies on drug control, just the opposite. Please run, do not walk, away from them. My country is, on balance, a wonderful force for good in the world and I am a very proud American. In making this positive assessment, I specifically exclude our approach to drug control. Thus, I hope you will continue to support the present warm relationship between Israel and the United States, but that you will not be seduced into accepting American official guidance on how to deal with drugs in your country.
At its angry core, American drug policy is extremist, demagogic, undemocratic, ineffective, expensive, and at war with the best of American and, yes, Jewish ideals. Drug users and abusers often are treated as enemies of the state in a holy war against certain chemicals and leaves. It is a hopeless war without end and without any possibility of victory. However, as a Dutch drug policy expert once told me, the important thing in a holy war is to fight it, not win it. Police and prison keepers rule supreme in this hopeless holy war which enforces prohibition primarily through the criminal law. While education and treatment play a positive role in American drug control, arrest and imprisonment play a greater, and negative, role.
The harsh elements of American drug policy have been built up to new, destructive levels since Ronald Reagan entered the oval office in January 1981. President Bush continued and enlarged the Reagan war. And so has Bill Clinton, although for a time he cooled the harsh rhetoric of his two immediate predecessors and in other ways seemed more sensible. But now President Clinton shows every sign of redefining himself as a tough conservative on this and other issues. He seems to be succumbing to the culture of intolerance that dominates American drug control. Badly, now there are more votes for intolerance in this arena than for any other approach.
In essence, for fifteen years we have had a massive Reagan-Bush-Clinton war on drugs. The results have not been encouraging. During 1981, the first year of the Reagan presidency, the total federal drug control budget (this includes enforcement, treatment, and prevention) was approximately $1.5 billion. Assuming that states and localities spent a roughly equal amount, the total for all levels of government in 1981 was approximately $3 billion. The total number of state and federal prisoners (those serving a year or more for all offenses) was 368,800 at the end of 1981. Expenditures for drug control in 1ses were at least $26 billion at all levels of government. Total cost for drug control during this 15-year period will be at least 200 billion dollars. These are record figures in the history of this and any other country for drug control.
There are more sad records being set. For the year ending June 30, l995, the U.S. Department of Justice reported record increases in the number of new federal and state prison inmates. On that date the total number of all long-term prisoners in the growing American gulag reached 1,104,074. This represented an increase of 200 percent since 1981. The U.S. incarceration rate of 565 per 100,000 is the highest in the world, at least among those nations keeping an honest count. While it is not clear from the reports as to what extent the war on drugs accounts for this sorry tally, in my opinion, the drug war is the chief single cause.
For the first time in recorded history, the number of blacks (who constitute only 12 percent of the total population) behind bars exceeded those of whites. At the end of 1994, there were 683,200 black adult males behind bars compared to 674,400 whites. (These figures on race take into account both the prison population already mentioned and an additional 483,717 jail inmates either awaiting sentencing or serving short sentences.) Now, 6.8 percent of all black adult males are behind bars as compared with lest than one percent of white male adults. one in every 15 black male adults is incarcerated! I do not place all of the blame for this situation on the drug war or on government policies, but both play significant roles.
Another sad record set during 1994: the estimated number of arrests for drug possession (as distinguished from trafficking and manufacturing) reached one million for the first time in our history.
The culture of intolerance regarding drug control has infected all of the major institutions of American life. This includes the judiciary, especially the Supreme Court. For decades - even before the Reagan era - judges have been affected by fear of drugs to the extent that hallowed democratic traditions, one after the other, have been sacrificed to mollify the gods of the drug war. Deeply intrusive practices into the previously private lives of free citizens have been given constitutional sanction by the courts in order to save our society, especially our children, from the drug menace. This led the late Justice Thurgood Marshall to decry in 1989 the "drug exception to the Constitution" that his colleagues on the Supreme Court had created.
To cite only one example of these drug-war era decisions is United States v. Montoya de Hernandez, 473 U.8. 531 (1985.) In order to support the continuation of drug prohibition, the 8upreme court gave constitutional approval to the following repugnant set of practices. U.S. Customs officials may detain without probable cause or any evidence of guilt a person at the border (in this case, an airport) for at least 24 hours, and release him or her only if that person, first, defecates into a container under the eyes of an official; second, allows the official to examine the fecal waste; and, third, thereby demonstrates to the official's satisfaction that waste does not contain any contraband and thus that the suspect is not an alimentary-canal smuggler.
Justice William Brennan wrote an outraged dissent in that case for himself and Justice Marshall. He pointed out that the number of highly intrusive and undignified border searches of innocent travelers may be very high. Justice Brennan continued:
One physician who at the request of Customs officials conducted many "internal searches" - rectal and vaginal examinations and stomach pumping - estimated that he had found contraband in only 15 to 20 percent of the persons he had examined. It has similarly been estimated that only 16 percent of the women subjected to body cavity searches were in fact found to be carrying contraband.
Such internal searches and other indignities have been accepted by most Americans as the price of vigilance in proper drug control.
An even more deadly policy is that regarding AIDS and drugs. The dominant American policy regarding these two matters, although not always expressed so starkly, is that drug abuse is a greater threat than AIDS. This would seem to turn simple common sense on its head and is at odds with the policies of many civilized nations. It flies in the face also of the grisly facts as recorded by the U.S. Centers for Disease Control: AIDS is the leading cause of death of Americans between the ages of 25 and 44. The CDC also reports that 295,473 Americans have died of AIDS since 1981, of whom the deaths of 94,551, 32 percent, may be traced ultimately to injection drug use.
There is overwhelming scientific evidence that needle exchange programs can significantly reduce the number of new HIV infections and do not seem to increase drug use among injection drug users or in the general community. Yet, there is a legal ban on the use of federal funding to support needle exchange programs and a series of state and local legal restrictions on their easy operation. A number of leading researchers have sought to have the ban on federal funding removed. one of those researchers, Dr. Peter Lurie, estimated in 1995 that in the two years that his major report (advocating the removal of the ban on federal funding) was ignored "50,000 IDUs, their sex partners and their children have become infected with this fatal, yet eminently preventable, disease."
Such poignant declarations have had no effect on the Clinton administration nor on Congress. Indeed, the leadership of both the administration and congress want a harsher drug war. Congressional leaders have recently made shocking proposals that could have come from a totalitarian government. House of Representatives leader Newt Gingrich declared in August 1995 that he would like to see America "execute 27 or 30 or 35 people at one time" so as to spread the word to drug dealers that we are serious about enforcing our drug laws. Moreover, the powerful chairman of the House Rules committee, Representative Gerald Solomon, attacked The Drug Policy Foundation twice during 1995 on the floor of the House because it questions the value of American drug control strategies and suggests the consideration of alternatives, including possible legalization of some drugs. Representative Solomon even went so far as to make the unamerican proposal that simple advocacy of legalization by an organization, such as DPF, trigger the withdrawal of that group's tax-exempt status.
In many respects, we at The Drug Policy Foundation are flattered by such attacks, even though they are so alien to democratic values and are based on erroneous information. The Foundation is a big tent that has 20,000 dues-paying members, the largest such reform group in the world. Those thousands of members have a wide variety of reform opinions, and all are welcome. Indeed, we would welcome the many distinguished experts gathered here into our fold. We need you. Our next annual conference, our Tenth Anniversary meeting, will be held in Washington November 6-9 of this year.
While I personally have evolved from being a supporter only of medicalization to being a supporter of full legalization, the organization has never taken a position advocating legalization. As it happens most of our practical reform work focuses on the middle ground of harm reduction or medicalization. This means we often seek to advance programs that provide medical support for some of the most scorned citizens in any society, drug addicts and prostitutes, often the same people. Under our grant program, we have become perhaps the largest single financial supporter of needle exchange programs in the United States. We also have supported efforts to create an open debate on all manner of drug policy options in America and other countries. This has included providing modest seed money for the creation of drug policy foundations in Australia and Canada.
Whither drug control in civilized societies? Over the years, I have written extensively in attempts to answer that weighty question. My opinions on the subject keep evolving. In summary form, I offer my latest thoughts to my Israeli colleagues, but I am also speaking to my American friends.
Assume that the core of American policy is an abject lesson in what not to do. That is, do not assume that a war on drugs is the proper way to deal with drug abuse. Indeed, drug control should be more like making love than making war. It is primarily a matter of delicate human relations and gentle persuasion.
Dig deeply into the true nature of drug use in society. It will be found that most drug use, even of the most feared drugs, is not truly abuse. Most users of heroin and cocaine, for example, are chippers; they use the drugs in a noncompulsive fashion. The major exceptions to that sweeping statement are the users of tobacco, the great majority of whom are hopelessly addicted after only a brief exposure to this deadly drug.
Treat drug users and addicts as potentially decent and contributing members of society. Do not treat them as traitors or enemies of the state or of the dominant religion. The obverse of these propositions is that society should demand that drug users and addicts make real contributions to the welfare of society. Many true addicts simply cannot, but more of them will be failures if we do not demand decent, productive behavior. If we treat them as our respected brothers and sisters, our treasured husbands and wives, which they are, the odds are higher that they will return the compliment.
Become aware of the essentially irrational history of drug control in your country. I believe there is overwhelming evidence that here was no rational basis for the imposition of national criminal law drug prohibition on March 1, 1915 in the United States. Moreover, no body of ethical or religious principles can justify the intervention of the heavy arm of the state into the essentially personal activity of placing drugs into one's own body. Do not lose sight of that salient fact: the government is actually making it a crime for a human being to personally ingest certain disapproved chemicals and leaves.
Also become aware that the antiwar or legalization movement is growing because many experts and citizens alike know that the entire structure of criminal law drug prohibition is fatally flawed at its core. (Examples of the growing opposition movement may be found in the current issues of two important, relatively conservative magazines: National Review and New York. Both have cover stories condemning the war on drugs and prohibition. Two conservative newspapers, The San Francisco Chronicle and The Chicano Tribune just published strong editorials also urging an end to the drug war.) Drug prohibition has the same flaws as does the prohibition of one religion in favor of another; the government is intruding into personal space where it has no business. Render unto Caesar only that which is Caesar's concern. Governmental prohibition of certain religions often has disastrous results for an entire society. So too governmental prohibition of certain chemicals. Such prohibitions can be maintained only at an unacceptable cost in a civilized nation. Thus, there must be continuous discussion of fundamentally different policy options.
Full legalization along the alcohol model must be contemplated in the discussion of alternatives. It should not be the only model and it must be realized that there are dozens of models of legalization as there are dozens of models of control of the legal drug alcohol. However, unless some form of legalization is considered in the debate, it will not be a real discussion of all the possibilities.
Concentrate for the immediate future on the harm reduction model, or as it is sometimes called, medicalization or the public health approach. I call this "prohibition with a human face." Under this approach - now followed in many countries other than the United states - the criminal drug laws remain essentially unchanged, except that legal and practical adjustments are made to implement harm reduction. The essence of harm reduction is the acceptance of drug use and abuse and the rejection of the destructive pursuit of a drug-free society; then, every attempt to made to reduce the undeniable harm that drug abuse often causes. In parts of some European countries can be found innovations and experiments that, for example, provide for complete, regular medical service for street drug addicts; needle exchange and a full array of prescribed injectable and oral drugs; psychiatric and social work counseling; and detoxification services, when the patient is ready to come off drugs, but not before.
Perhaps the most powerful arguments for fundamental changes in drug policies are found in the realm of economics. The drug laws seek to repeal the laws of economics. No government edict or bundle of edicts has the power to accomplish this feat. In the United states and many other countries, high demand for drugs and governmental policies have combined to make some simple chemicals with little intrinsic value worth more than gold. A kilo of cocaine may be worth $500-$1,000 in Colombia and $20,000-$50,000 on the streets of many American cities. Given the ease with which drugs may be smuggled, the temptations of such a profit will always attract many adventurers and risk takers. Gustavo de Greiff, the former prosecutor general of Colombia, observed to me that the work of his department in eliminating the notorious narcotrafficker Pablo Escobar in December 1993 did not cause the price of cocaine to change one penny in either Bogota or New York. "Not one penny!" he repeated.
There is the further danger that governments which seek to intensify the fight to intercept drugs and thus to repeal these economic laws will find the very foundations of all governmental authority being destroyed through violence and corruption. This has been the case in Colombia and in some other countries.
In many countries, of course, there is no doubt that the greatest threat is the violence of terrorism. This is particularly true of Israel and, I would argue, of the United States as well. what is not generally recognized is that the skills and personnel most successful in enforcing prohibition are also the most effective in curbing terrorism. The greatest successes of the American Drug Enforcement Administration, for example, have come from good intelligence, long range planning and prediction, and dangerous undercover work. Thousands of brave, dedicated agents have risked their lives in antinarcotics work using these methods. These are the same skills that other agents have used to penetrate terror networks. It goes without saying that society is at greater risk from bombs than drugs. All of us thus would be infinitely safer if the courageous efforts of antidrug agents in the U.S., Israel, and other countries were focused on terrorists aimed at blowing up airliners and skyscrapers than at drug traffickers seeking to sell the passengers and office dwellers cocaine and marijuana.
In American terms, the war on drugs is like a combination of alcohol prohibition and the Vietnam war. Each had the perverse effect of tearing at the social cohesion of the nation, which it was meant to preserve. Eventually, after we had suffered terrible losses in both noble, well-meaning ventures, we reluctantly declared defeat and moved on with our lives as a nation. We all must recognize that the time has at last come for Israel, America, and the civilized world to do the same with the drug war.