TESTIMONY of David Boaz, Executive Vice President, Cato Institute before
the Subcommittee on Criminal Justice, Drug Policy, and Human Resources
Committee on Government Reform U.S. House of Representatives

DRUG LEGALIZATION, CRIMINALIZATION, AND HARM REDUCTION

June 16, 1999

Mr. Chairman, distinguished members of the subcommittee:

Thank you for inviting me to testify before you on the successes and
failures of our current policy of drug prohibition, and on possible
alternatives.

Ours is a federal republic. The federal government has only the powers
granted to it in the Constitution. And the United States has a tradition of
individual liberty, vigorous civil society, and limited government: just
because a problem is identified does not mean that the government ought to
undertake to solve it, and just because a problem occurs in more than one
state does not mean that it is a proper subject for federal policy.

Perhaps no area more clearly demonstrates the bad consequences of not
following such rules than drug prohibition. The long federal experiment in
prohibition of marijuana, cocaine, heroin, and other drugs has given us
unprecedented crime and corruption combined with a manifest failure to stop
the use of drugs or reduce their availability to children.

In the 1920s Congress experimented with the prohibition of alcohol. On
February 20, 1933, a new Congress acknowledged the failure of alcohol
Prohibition and sent the Twenty-First Amendment to the states. Congress
recognized that Prohibition had failed to stop drinking and had increased
prison populations and violent crime. By the end of 1933, national
Prohibition was history, though in accordance with our federal system many
states continued to outlaw or severely restrict the sale of liquor.

Today Congress confronts a similarly failed prohibition policy. Futile
efforts to enforce prohibition have been pursued even more vigorously in
the 1980s and 1990s than they were in the 1920s. Total federal expenditures
for the first 10 years of Prohibition amounted to $88 million--about $733
million in 1993 dollars. Drug enforcement cost about $22 billion in the
Reagan years and another $45 billion in the four years of the Bush
administration. The federal government spent $16 billion on drug control
programs in FY 1998 and has approved a budget of $17.9 billion for FY 1999.
The Office of National Drug Control Policy reported in April 1999 that
state and local governments spent an additional $15.9 billion in FY 1991,
an increase of 13 percent over 1990, and there is every reason to believe
that state and local expenditures have risen throughout the 1990s.

Those mind-boggling amounts have had some effect. Total drug arrests are
now more than 1.5 million a year. There are about 400,000 drug offenders in
jails and prison now, and over 80 percent of the increase in the federal
prison population from 1985 to 1995 was due to drug convictions. Drug
offenders constituted 59.6 percent of all federal prisoners in 1996, up
from 52.6 percent in 1990. (Those in federal prison for violent offenses
fell from 18 percent to 12.4 percent of the total, while property offenders
fell from 14 percent to 8.4 percent.)

Yet as was the case during Prohibition, all the arrests and incarcerations
haven't stopped the use and abuse of drugs, or the drug trade, or the crime
associated with black-market transactions. Cocaine and heroin supplies are
up; the more our Customs agents interdict, the more smugglers import. In a
letter to the Wall Street Journal published on November 12, 1996, Janet
Crist of the White House Office of National Drug Policy claimed some success:

Other important results [of the Pentagon's anti-drug efforts] include the
arrest of virtually the entire Cali drug cartel leadership, the disruption
of the Andean air bridge, and the hemispheric drug interdiction effort that
has captured about a third of the cocaine produced in South America each year.

"However," she continued, "there has been no direct effect on either the
price or the availability of cocaine on our streets."

That is hardly a sign of a successful policy. And of course, while crime
rates have fallen in the past few years, today's crime rates look good only
by the standards of the recent past; they remain much higher than the
levels of the 1950s.

As for discouraging young people from using drugs, the massive federal
effort has largely been a dud. Despite the soaring expenditures on antidrug
efforts, about half the students in the United States in 1995 tried an
illegal drug before they graduated from high school. According to the 1997
National Household Survey on Drug Abuse, 54.1 percent of high school
seniors reported some use of an illegal drug at least once during their
lifetime, although it should be noted that only 6.4 percent reported use in
the month before the survey was conducted. Every year from 1975 to 1995, at
least 82 percent of high school seniors have said they find marijuana
"fairly easy" or "very easy" to obtain. During that same period, according
to federal statistics of dubious reliability, teenage marijuana use fell
dramatically and then rose significantly, suggesting that cultural factors
have more effect than "the war on drugs."

The manifest failure of drug prohibition explains why more and more
people--from Baltimore mayor Kurt Schmoke to Nobel laureate Milton
Friedman, conservative columnist William F. Buckley Jr., and former
secretary of state George Shultz--have argued that drug prohibition
actually causes more crime and other harms than it prevents.

The Failures of Prohibition

Congress should recognize the failure of prohibition and end the federal
government's war on drugs. First and foremost, the federal drug laws are
constitutionally dubious. As previously noted, the federal government can
only exercise the powers that have been delegated to it. The Tenth
Amendment reserves all other powers to the states or to the people. However
misguided the alcohol prohibitionists turned out to be, they deserve credit
for honoring our constitutional system by seeking a constitutional
amendment that would explicitly authorize a national policy on the sale of
alcohol. Congress never asked the American people for additional
constitutional powers to declare a war on drug consumers.

Second, drug prohibition creates high levels of crime. Addicts are forced
to commit crimes to pay for a habit that would be easily affordable if it
were legal. Police sources have estimated that as much as half the property
crime in some major cities is committed by drug users. More dramatically,
because drugs are illegal, participants in the drug trade cannot go to
court to settle disputes, whether between buyer and seller or between rival
sellers. When black-market contracts are breached, the result is often some
form of violent sanction, which usually leads to retaliation and then open
warfare in the streets.

Our capital city, Washington, D.C., has become known as the "murder
capital" even though it is the most heavily policed city in the United
States. Make no mistake about it, the annual carnage that stands behind
America's still outrageously high murder rates has nothing to do with the
mind-altering effects of a marijuana cigarette or a crack pipe. It is
instead one of the grim and bitter consequences of an ideological crusade
whose proponents will not yet admit defeat.

Third, drug prohibition channels over $40 billion a year into the criminal
underworld. Alcohol prohibition drove reputable companies into other
industries or out of business altogether, which paved the way for mobsters
to make millions through the black market. If drugs were legal, organized
crime would stand to lose billions of dollars, and drugs would be sold by
legitimate businesses in an open marketplace.

Fourth, drug prohibition is a classic example of throwing money at a
problem. The federal government spends some $16 billion to enforce the drug
laws every year--all to no avail. For years drug war bureaucrats have been
tailoring their budget requests to the latest news reports. When drug use
goes up, taxpayers are told the government needs more money so that it can
redouble its efforts against a rising drug scourge. When drug use goes
down, taxpayers are told that it would be a big mistake to curtail spending
just when progress is being made. Good news or bad, spending levels must be
maintained or increased.

Fifth, the drug laws are responsible for widespread social upheaval. "Law
and order" advocates too often fail to recognize that some laws can
actually cause societal disorder. A simple example will illustrate that
phenomenon. Right now our college campuses are relatively calm and
peaceful, but imagine what would happen if Congress were to institute
military conscription in order to wage a war in Kosovo, Korea, or the
Middle East. Campuses across the country would likely erupt in
protest--even though Congress obviously did not desire that result. The
drug laws happen to have different "disordering" effects. Perhaps the most
obvious has been turning our cities into battlefields and upending the
normal social order.

Drug prohibition has created a criminal subculture in our inner cities. The
immense profits involved in a black-market business make drug dealing the
most lucrative endeavor for many people, especially those who care least
about getting on the wrong side of the law.

Drug dealers become the most visibly successful people in inner-city
communities, the ones with money, and clothes, and cars. Social order is
turned upside down when the most successful people in a community are
criminals. The drug war makes peace and prosperity virtually impossible in
inner cities.

Sixth, the drug laws break up families. Too many parents have been
separated from their children because they were convicted of marijuana
possession, small-scale sale of drugs, or some other non-violent offense.
Will Foster used marijuana to control the pain and swelling associated with
his crippling rheumatoid arthritis. He was arrested, convicted of marijuana
cultivation, and sentenced to 93 years in prison, later reduced to 20
years. Are his three children better off with a father who uses marijuana
medicinally, or a father in jail for 20 years?

And going to jail for drug offenses isn't just for men any more. In 1996,
188,880 women were arrested for violating drug laws. Most of them did not
go to jail, of course, but more than two-thirds of the 146,000 women behind
bars have children. One of them is Brenda Pearson, a heroin addict who
managed to maintain a job at a securities firm in New York. She supplied
heroin to an addict friend, and a Michigan prosecutor had her extradited,
prosecuted, and sentenced to 50 to 200 years. We can only hope that her two
children will remember her when she gets out.

Seventh, drug prohibition leads to civil liberties abuses. The demand to
win this unwinnable war has led to wiretapping, entrapment, property
seizures, and other abuses of Americans' traditional liberties. The saddest
cases result in the deaths of innocent people: people like Donald Scott,
whose home was raided at dawn on the pretext of cultivating marijuana, and
who was shot and killed when he rushed into the living room carrying a gun;
or people like the Rev. Accelyne Williams, a 75-year-old minister who died
of a heart attack when police burst into his Boston apartment looking for
drugs--the wrong apartment, as it turned out; or people like Esequiel
Hernandez, who was out tending his family's goats near the Rio Grande just
six days after his 18th birthday when he was shot by a Marine patrol
looking for drug smugglers. As we deliberate the costs and benefits of drug
policy, we should keep those people in mind.

Students of American history will someday ponder the question of how
today's elected officials could readily admit to the mistaken policy of
alcohol prohibition in the 1920s but continue the policy of drug
prohibition. Indeed, the only historical lesson that recent presidents and
Congresses seem to have drawn from the period of alcohol prohibition is
that government should not try to outlaw the sale of alcohol. One of the
broader lessons that they should have learned is this: prohibition laws
should be judged according to their real-world effects, not their promised
benefits.

Intellectual history teaches us that people have a strong incentive to
maintain their faith in old paradigms even as the facts become increasingly
difficult to explain within that paradigm. But when a paradigm has
manifestly failed, we need to think creatively and develop a new paradigm.
The paradigm of prohibition has failed. I urge members of Congress and all
Americans to have the courage to let go of the old paradigm, to think
outside the box, and to develop a new model for dealing with the very real
risks of drug and alcohol abuse. If the 106th Congress will subject the
federal drug laws to that kind of new thinking, it will recognize that the
drug war is not the answer to problems associated with drug use.

Respect State Initiatives

In addition to the general critique above, I would like to touch on a few
more specific issues. A particularly tragic consequence of the stepped-up
war on drugs is the refusal to allow sick people to use marijuana as
medicine. Prohibitionists insist that marijuana is not good medicine, or at
least that there are legal alternatives to marijuana that are equally good.
Those who believe that individuals should make their own decisions, not
have their decisions made for them by Washington bureaucracies, would
simply say that that's a decision for patients and their doctors to make.
But in fact there is good medical evidence about the therapeutic value of
marijuana--despite the difficulty of doing adequate research on an illegal
drug. A recent National Institutes of Health panel concluded that smoking
marijuana may help treat a number of conditions, including nausea and pain.
It can be particularly effective in improving the appetite of AIDS and
cancer patients. The drug could also assist people who fail to respond to
traditional remedies.

More than 70 percent of U.S. cancer specialists in one survey said they
would prescribe marijuana if it was legal; nearly half said they had urged
their patients to break the law to acquire the drug. The British Medical
Association reports that nearly 70 percent of its members believe marijuana
should be available for therapeutic use. Even President George Bush's
Office of Drug Control Policy criticized the Department of Health and Human
Services for closing its special medical marijuana program.

Whatever the actual value of medical marijuana, the relevant fact for
federal policymakers is that in 1996 the voters of California and Arizona
authorized physicians licensed in the state to recommend the use of medical
marijuana to seriously ill and terminally ill patients residing in the
state without being subject to civil and criminal penalties.

In response to those referenda, however, the Clinton administration
announced, without any intervening authorization from Congress, that any
physician recommending or prescribing medicinal marihuana under state law
would be prosecuted. In the February 11, 1997, Federal Register the Office
of National Drug Control Policy announced that federal policy would be as
follows: (1) physicians who recommend and prescribe medicinal marijuana to
patients in conformity with state law and patients who use such marijuana
will be prosecuted; (2) physicians who recommend and prescribe medicinal
marijuana to patients in conformity with state law will be excluded from
Medicare and Medicaid; and (3) physicians who recommend and prescribe
medicinal marijuana to patients in conformity with state law will have
their scheduled-drug DEA registrations revoked.

The announced federal policy also encourages state and local enforcement
officials to arrest and prosecute physicians suspected of prescribing or
recommending medicinal marijuana and to arrest and prosecute patients who
use such marijuana. And adding insult to injury, the policy also encourages
the IRS to issue a revenue ruling disallowing any medical deduction for
medical marijuana lawfully obtained under state law.

Clearly, this is a blatant effort by the federal government to impose a
national policy on the people in the states in question, people who have
already elected a contrary policy. Federal officials do not agree with the
policy the people have elected; they mean to override it, local rule
notwithstanding--just as the Clinton administration has tried to do in
other cases, such as the California initiatives dealing with racial
preferences and state benefits for immigrants.

Congress and the administration should respect the decisions of the voters
in Arizona and California; and in Alaska, Nevada, Oregon, and Washington,
where voters passed medical marijuana initiatives in 1998; and in other
states where such initiatives may be proposed, debated, and passed. One of
the benefits of a federal republic is that different policies may be tried
in different states. One of the benefits of our Constitution is that it
limits the power of the federal government to impose one policy on the
several states.

Repeal Mandatory Minimums

The common law in England and America has always relied on judges and
juries to decide cases and set punishments. Under our modern system, of
course, many crimes are defined by the legislature, and appropriate
penalties are defined by statute. However, mandatory minimum sentences and
rigid sentencing guidelines shift too much power to legislators and
regulators who are not involved in particular cases. They turn judges into
clerks and prevent judges from weighing all the facts and circumstances in
setting appropriate sentences. In addition, mandatory minimums for
nonviolent first-time drug offenders result in sentences grotesquely
disproportionate to the gravity of the offense. Absurdly, Congress has
mandated minimums for drug offenses but not for murder and other violent
crimes, so that a judge has more discretion in sentencing a murder than a
first-time drug offender.

Rather than extend mandatory minimum sentences to further crimes, Congress
should repeal mandatory minimums and let judges perform their traditional
function of weighing the facts and setting appropriate sentences.

Conclusion

Drug abuse is a problem, for those involved in it and for their family and
friends. But it is better dealt with as a moral and medical than as a
criminal problem--"a problem for the surgeon general, not the attorney
general," as Mayor Schmoke puts it.

The United States is a federal republic, and Congress should deal with drug
prohibition the way it dealt with alcohol Prohibition. The Twenty-First
Amendment did not actually legalize the sale of alcohol; it simply repealed
the federal prohibition and returned to the several states the authority to
set alcohol policy. States took the opportunity to design diverse liquor
policies that were in tune with the preferences of their citizens. After
1933, three states and hundreds of counties continued to practice
prohibition. Other states chose various forms of alcohol legalization.

Congress should withdraw from the war on drugs and let the states set their
own policies with regard to currently illegal drugs. The states would be
well advised to treat marijuana, cocaine, and heroin the way most states
now treat alcohol: It should be legal for licensed stores to sell such
drugs to adults. Drug sales to children, like alcohol sales to children,
should remain illegal. Driving under the influence of drugs should be
illegal.

With such a policy, Congress would acknowledge that our current drug
policies have failed. It would restore authority to the states, as the
Founders envisioned. It would save taxpayers' money. And it would give the
states the power to experiment with drug policies and perhaps devise more
successful rules.

Repeal of prohibition would take the astronomical profits out of the drug
business and destroy the drug kingpins that terrorize parts of our cities.
It would reduce crime even more dramatically than did the repeal of alcohol
prohibition. Not only would there be less crime; reform would also free
police to concentrate on robbery, burglary, and violent crime.

The War on Drugs has lasted longer than Prohibition, longer than the War in
Vietnam. But there is no light at the end of this tunnel. Prohibition has
failed, again, and should be repealed, again.