ANTI-DRUG-WAR SCREED

To the editor:

Graham Boyd and Jack Hitt's anti-drug-war screed is so full of error
and hyperbole that it's fair to ask what Harper's Magazine was smoking
prior to publication. For example:

The authors state that Drug Czar Barry McCaffrey "threatened to arrest
any doctor who merely mentioned to a patient" that marijuana might
reduce pain. McCaffrey, however, threatened only to revoke
prescription powers for doctors who recommended or prescribed
marijuana, based upon the obvious clash between state and federal law
(a fact Boyd should know, since he represented California doctors who
sued in San Francisco feder-al court in 1997).

The authors also allege that Supreme Court Justice Antonin Scalia
"decided that religious freedom would have to yield to the new
drug-war orthodoxy" in a case pitting Second Amendment rights against
the use of peyote, a hallucinogen that's illegal in the state of
Oregon. In reality, in Employment Division v. Smith, Scalia was joined
by five henchpersons in a 6-to-3 decision that was a bit of a
no-brainer (even the dissents were about the appropriate standard to
apply): all religious practices must conform to criminal law. Hence,
we cannot sac-rifice virgins as often as we'd like, nor can we make as
equivalent to First Communion the consumption of methamphetamine. The
authors' suggestion that "[o]nce upon a time, the decision would have
been simple" may refer to an earlier time, in a dorm room of yore,
when the pipe was passed and such delicate balance was whisked aside
by the assuredness that comes with many bong hits. It does not,
however, refer to any Supreme Court precedent.

Hitt and Boyd go on to liken the practice of disallowing voting by
felons to Jim Crow laws ("What literacy tests and poll taxes once did
in containing black suffrage has found a contempo-rary replacement").
This rhetorical sweep is both offensive and misleading. Historically,
it equates law-abiding blacks denied opportunities to cast ballots by
rigged procedures to felons denied the right to vote for violating
established criminal statutes. I suppose this is acceptable at a time
when Jesse Jackson invokes the spirit of Rosa Parks to save the hides
of young black men expelled from high school for participating in a
melee of physical violence. But how can the practice of disallowing
voting by convicted felons be racist when a) the "vindictive" states
who maintain this policy maintained it prior to the advent of
heightened sentencing for drug crimes (every state mentioned by the
authors codifies its felon voting bar in its constitution), and b) the
practice is race-neutral, applicable to all convicted felons?

The authors lament the drug war's erosion of the right to face one's
accuser. They cite a "notorious" 1983 ruling, Illinois v. Gates,
which, to their minds, "eliminated" that right. The Illinois v. Gates
case, however, did no such thing. Rather, it dealt with whether
partially corroborated anonymous information provided by an informant
could sustain the probable-cause requirement of a search warrant.
Gates is a Fourth Amendment case, and the Supreme Court's decision -
that courts must look at the "totality of circumstances" when
determing [sic] whether there is probable cause to support a warrant -
is more mundane than "notorious."

JEFFREY LARROCA
Washington
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The Authors Respond:

Larroca's drug-war apologia offers an excellent example of what
happens when decent folk acquiesce to the quiet accumulation of
tyrannies plaguing our Constitution.

1. Until a California district court ruled against the federal
government's bizarre threats, doctors could indeed be arrested and
prosecuted on charges of "conspiracy to possess and distribute
marijuana" for merely telling a patient that the substance could help
quell the nausea of chemotherapy. Here is the language used in the
court's decision: "The government confirmed that it would prosecute
physicians, revoke their prescription licenses, and deny them
participation in Medicare and Medicaid for recommending medical
marijuana." Not just for prescribing it but for "recommending" it.

2. Larroca says that we must be drug-befuddled simpletons to think
that the Smith decision was considered a complete reversal of settled
law. But to quote Justice Blackmun in his dissent: "In short, [the
decision] effectuates a wholesale overturning of settled law
concerning the Religion Clauses of our Constitution." And in reaction
to the Smith "no-brainer," one of the most bitterly partisan
Congresses in American history voted almost unanimously to overturn
Scalia's arrogant ruling with a law whose very name makes our
argument: the Religious Freedom Restoration Act.

3. Larroca says we equate "law-abiding blacks denied opportunities to
cast ballots by rigged procedures to felons." But we didn't. We did
say that two rigged systems - the intentionally racist Jim Crow laws
and a de facto racist judicial process whose drug-related convictions
are 58 percent black when African Americans represent only 14 percent
of the drug-abusing public - achieved the same result. Larroca finds
this com-parison "offensive." So do we.

4. Larroca calls the evisceration of a fundamental right - the
allowance for the first time of arrests, prosecutions, and convictions
generated solely by evidence obtained from an anonymous snitch -
"mundane." This is the interpretation of the jaded collaborationist,
who goes on insisting that whatever evil has occurred is, trust me, no
big deal.

Perhaps Larroca feels more secure and safe in a gulag society with ever
dwindling liberties. But no one benefits from giving up the rights we have.
To quote Ben Franklin: "They that can give up essential liberty to obtain a
little temporary safety deserve neither liberty nor safety."

GRAHAM BOYD AND JACK HITT
New Haven, Conn.