By George W. Liebmann
7:00 AM EDT, August 15, 2011
The militarization of the Mexican border is a new phenomenon for two nations whose militaries have traditionally been made to stay out of politics. There are constant expansions of our prisons, and further explosions of the drug-related caseloads of our state and federal courts. No one can think that our illicit drug industry survives without complicity in the Border Patrol, Drug Enforcement Agency, Coast Guard and local sheriffs' offices. It is not for nothing that J. Edgar Hoover demanded that a separate agency be set up for drug enforcement because of its potentially corrupting effects.
Drug prisoners in federal custody increased to 97,239 in 2009. The number of state drug prisoners increased to about 275,000 in prisons and 190,000 in jails in 2009. Approximately one-third of the federal criminal docket is drug cases, increasing from 2,692 in 1968 to 29,759 in 2009. Federal civil jury trials are almost extinct. Maryland's 12 federal district judges conducted 18 civil jury trials in 2009, a decline from 57 in 1997; nationally, the number of federal civil jury trials declined from 4,491 in 1997 to 2,154 in 2009. They have given way to summary judgments, dismissals, and compelled arbitrations. Few federal criminal defendants resist plea-bargaining; federal criminal jury trials in Maryland last year were 56 as against 73 in 1997; nationally, there has been a one-third drop.
How did all this happen? In 2005, the Calvert Institute sponsored a conference including three former Nixon administration officials. They agreed that a drug crisis in the post-Vietnam military was suppressed through use of compelled testing and treatment. Similar strategies for the civilian population were cut short by a bidding war in criminal penalties between President Richard Nixon and New York Gov. Nelson Rockefeller, seen as a potential election rival. Noncriminal strategies were pursued by large companies, retarding drug use in the employed middle class, but large fee awards under the Civil Rights Attorneys' Fees Act deterred schools from mandating drug testing, although the Supreme Court has allowed it.
America has been here before. Alcohol prohibition exploded the number of federal criminal prosecutions eightfold from 1914 to 1930. After the Roosevelt administration bravely returned the matter to the states in 1933, the size of the federal prosecutorial establishment in 1952 was smaller than that in 1932, despite the demands of depression and war. The federal courts devoted themselves to civil litigation under the antitrust, labor, civil rights and securities laws, now all in varying degrees of desuetude.
Unlike the situation in the 1930s, there is no constitutional amendment or federal statute barring change. A federal law authorizes classification of drugs. Marijuana, which has never killed anyone, is a Class I (most dangerous) drug for which no legitimate uses are recognized — ahead of cocaine, a Class II drug, use of which is sometimes permitted by prescription. This is scientifically absurd; a downgrading to Class III, IV, or V would allow marijuana, like tranquilizing drugs such as valium, to be prescribed and refilled five times in six months; complete declassification would return regulation to the states, and the Marijuana Tax Act of 1937 would again be enforceable. Its operation was suspended by a Supreme Court case in 1969 because of the peril of self-incrimination.
Marijuana can be a detrimental drug. Impure batches, a certainty when it is criminalized, result in trips to emergency rooms. It can result in dangerous driving. It is usually not seriously addictive. It is the drug of an age cohort; almost a rite of passage. Its most serious effect is as an escape mechanism that de-motivates the young. Major party candidates in the last three presidential elections have been notably bashful about their undergraduate years. Their choices of substances varied, but the effects on mature judgment were the same.
Marijuana is not a gateway drug except insofar as illegal acquisition introduces users to dealers in other substances. Forty years of criminalization have not reduced its use. Drug testing is the only strategy that has succeeded. Schools, colleges and parents do not want to incriminate the young and therefore do not encourage testing.
Three-quarters of a million marijuana arrests a year have gotten society nowhere. We have now been told this by Paul Volcker, George Shultz, and three conservative former Latin American presidents. Several congressmen have sponsored legislation to compel a federal exit. Besides decriminalization of possession, there need to be lawful channels of distribution, together with taxes and quality controls like those for alcohol.
Localism ensures (as the strongest opponent of alcohol Prohibition, Maryland's Gov. Albert Ritchie, pointed out) that areas that want prohibition can get it. Other benefits include an open door for testing, government revenues, less gangsterism and fear in cities, shrinkage of a menacing federal policing role, and an end to a condition in which there is a marijuana dealer in every school.
Timid politicians will resist repeal, though there are rewards for boldness; Governor Ritchie was offered the vice presidency by Franklin Roosevelt. Few pieces of literature are more comic than the opinions of members of the Wickersham Commission in 1931, who offered parades of horribles instead of repeal and states' rights. Their fears were satirized by Franklin P. Adams:
Prohibition is an awful flop
We like it
It can't stop what it's meant to stop
We like it
It's left a trail of graft and slime
It don't prohibit worth a dime
It's filled our land with vice and crime
Nevertheless, we're for it
The alcohol experience will be reviewed this fall in a television series by Ken Burns. Those desiring to explore this experience for its relevance to the "drug war," or who seek an evening's hilarious entertainment, can acquire "Prohibition in Maryland: A Collection of Documents" from the Calvert Institute, 8 West Hamilton Street, Baltimore, MD 21201, http://www.calvertinstitute.org.
George W. Liebmann, a Baltimore lawyer, is volunteer executive director of the Calvert Institute. His email is firstname.lastname@example.org.
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