TESTIMONY OF IRA GLASSER, EXECUTIVE DIRECTOR, AMERICAN CIVIL LIBERTIES UNION

Criminal Justice, Drug Policy and Human Resources Subcommittee of the House
Government Reform Committee

Hon. John L. Mica, Chair

June 16, 1999

Thank you for inviting me to testify today. In the June 9 edition of the
Congressional Quarterly Daily Monitor, the subject of today's hearing is
listed as covering the issues of "drug legalization, criminalization and
harm reduction." Since these terms are often differently defined, let me
begin by offering my definition, so the Subcommittee can be clear about my
testimony.

I. Definition of terms

A. Harm reduction. There are two kinds of harms associated with the use of
drugs. One set of harms may be caused by the drugs themselves, and varies
widely, depending on the particular drug, its potency, its purity, its
dosage, and the circumstances and frequency of its use. Distinctions must
be made between the harms caused by heavy, compulsive use (e.g.,
alcoholism) and occasional, controlled use (e.g., a glass of wine each
night with dinner). Distinctions must also be made between medical use
(e.g., heavy dosages of morphine prescribed by doctors over a two-week
period in a hospital setting or methadone prescribed daily on an outpatient
basis as maintenance) and uncontrolled use (e.g., by addicts on the street
using unregulated heroin and unclean needles). And distinctions must be
made as well between relatively benign drugs (e.g., marijuana) and drugs
with more extreme short-term effects (e.g., LSD) or more severe long-term
effects (e.g., nicotine when delivered by smoking tobacco).1

The second kind of harm associated with the use of drugs is the harm caused
not by the drugs themselves but by dysfunctional laws designed to control
the availability of the drug. These harms include massive incarceration,
much of it racially disparate, and the violation of a wide range of
constitutional rights so severe that it has led one Supreme Court justice
to speak of a "drug exception" to the Constitution. Dysfunctional laws have
also led to reduced availability of treatment by those who desire it (e.g.,
methadone maintenance), as well as a number of harms created by
uncontrolled and unregulated illegal markets (e.g., untaxed and exaggerated
subsidies for organized criminals; street crime caused by the settling of
commercial disputes with automatic weapons; unregulated dosages and
impurities; unclean needles and the spread of disease, etc.)

All laws that address the issue of drugs ought to be evaluated by assessing
whether or not they reduce or enhance such harms.

B. Criminalization. This term refers to the effort to control the harmful
effects of drugs by making it a crime, often with heavy penalties attached,
to possess, buy or sell drugs. The purpose of criminal prohibition is to
sharply reduce availability of drugs by interdicting supplies and deterring
commercial transactions. Any assessment of criminalization must measure the
extent to which this purpose has been achieved, and the extent to which new
harms have been created and sustained.

C. Legalization. This term refers to a wide variety of efforts to control
the harmful effects of drugs by regulating, instead of criminally
prohibiting, their sale and use. Depending on the drug, regulations may
require a medical prescription (e.g., Prozac) or may limit the settings in
which a prescription may be used (e.g., morphine). Other drugs may be
regulated less restrictively (e.g., alcohol, tobacco). People who advocate
this approach believe that the harmful effects of drugs can be better
controlled by regulation; that different regulations would be appropriate
for different drugs; and that Congress would be more productive if it
embarked upon this path, and began the difficult process of developing a
differential system for regulating the availability of drugs.

II. General principles

The American Civil Liberties Union believes, and has believed for decades,
that in general the best way to control the harmful effects of drugs is
with a detailed set of regulations. We believe that the use of criminal
prohibitions is profoundly wrong in principle, generally ineffective in
practice and has created problems that the drugs themselves were powerless
to create.

Criminal prohibition is profoundly wrong in principle because the state has
no business using its police powers to punish adult individuals for what
they decide to do with their own minds and bodies. On the most basic level,
the state has no legitimate power to send me to prison for eating too much
red meat or fat-laden ice cream or for drinking a few beers or glasses of
wine each day. This is true in principle even if an excess of red meat and
ice cream demonstrably leads to premature heart attacks and strokes. The
police power of the state is legitimately used to prevent one citizen from
attacking another, and to punish him if he does; it is illegitimately used
to prevent adults from managing their own bodies and minds, or to punish
them when they do.

Nor does clearly excessive use warrant criminal punishment. Obesity and
compulsive eating disorders, while clearly problematic and often
dysfunctional, are not a justification to put people in jail, to search
them for possession of forbidden foods or to seize their property when they
are caught with such foods. Even more certainly, the self-abuse of
compulsive overeating by some cannot possibly justify punishing others for
eating the same foods, but in moderation and without apparent ill effects.

Similarly, excessive and compulsive consumption of alcohol or tobacco does
not justify imprisonment, police searches or seizures of property. And
certainly the behavior of alcoholics - serious abusers of alcohol -- cannot
justify criminalizing moderate, recreational drinking by otherwise stable
and law-abiding citizens.

No American would dispute these assertions, and, of course, we do not in
fact do such things to people with serious eating disorders. We don't even
do it with alcohol and tobacco, despite the well-documented ill effects of
compulsive use of those drugs. Why we do it with other substances, like,
for example, marijuana, and whether there is something about marijuana that
justifiably causes us to depart so radically from fundamental principles,
is the key question this nation needs to begin openly and fairly debating.

III. Rethinking criminalization.

Congress should not avoid this question by marginalizing it, or by
pretending that those who advocate individual freedom, harm reduction and
control through appropriate regulations rather than criminal prohibition
occupy a narrow band of the political spectrum. In fact, those who oppose
or who are deeply skeptical of criminal prohibition include such notable
conservative thinkers as Milton Friedman and Wm. F. Buckley, Jr. as well as
liberals like Mayor Kurt Schmoke of Baltimore, experienced police chiefs
like Patrick Murphy, Joseph McNamara and Nick Pastore, and a number of
state and federal judges.

Nor is the principle here articulated a recently-invented one. To the
contrary, it is America's obsession with criminalization that is relatively
recent, beginning in 1914. The tradition of personal freedom and individual
sovereignty has far older and deeper roots in Western thought. As far back
as 1859, for example, the political philosopher John Stuart Mill, in his
famous essay On Liberty, offered the following advice to free societies and
their governments:

The object of this Essay is to assert one very simple principle... to
govern absolutely the dealings of society with the individual in the way of
compulsion and control ... That principle is, that the sole end of which
mankind are warranted ... in interfering with the liberty of action of any
of their number, is self-protection. That the only purpose for which power
can be rightfully exercised over any member of a civilized community,
against his will, is to prevent harm to others. His own good, either
physical or moral, is not a sufficient warrant. He cannot rightfully be
compelled to do so or forbear because it will be better for him to do so,
because it will make him happier, because, in the opinions of others, to do
so would be wise or even right.

There are good reasons for remonstrating with him, or reasoning with him,
or persuading him, or entreating him, but not for compelling him... Mankind
are greater gainers by suffering each other to live as seems good to
themselves, than by compelling each to live as seems good to the rest. On
Liberty, at lines 335-351, 471 (1859).

There is no better example of the folly of ignoring Mill's advice than the
history of America's attempts over the past 85 years to control the harmful
effects of drugs by making it a crime to possess, buy or sell them. This
approach began in 1914, when Congress passed the Harrison Act, and was
followed by hundreds of federal and state laws, all of them to one degree
or another utilizing criminal penalties to punish possession, sale and
purchase of a wide variety of substances including for a period of time
alcohol.

The stated purposes of such laws were to make drugs less available; to
interdict supplies and to deter commercial transactions. But the laws of
prohibition accomplished none of these purposes. Alcohol prohibition was
abandoned as a failure over sixty years ago. But criminal prohibition of
other drugs continued. Between 1914 and 1970, 55 federal laws and hundreds
of state laws were passed, all of them prohibitive, all of them containing
criminal penalties. Almost from the beginning, the results were
disappointing and counterproductive. As early as 1926, the Illinois Medical
Journal, characterizing the 1914 Harrison Act as a "well-meaning blunder"
concluded that:

... instead of stopping the traffic, those who deal in dope now make double
their money from the poor upon whom they prey. 49 Illinois Medical Journal
447 (1926).

Then years later, in 1936, August Vollmer, a former police chief and
leading expert on American policing, wrote:

Stringent laws, spectacular police drives, vigorous prosecution, and
imprisonment of addicts and peddlers have proved not only useless and
enormously expensive as means of correcting this evil, but they are also
unjustifiably and unbelievably cruel in their application to the
unfortunate drug victims ... Drug addiction, like prostitution and like
liquor, is not a police problem; it never has been and never can be solved
by policemen. It is first and last a medical problem ... The Police and
Modern Society (1936). At p. 117-18.

And in 1958, a comprehensive study concluded:

For the past 40 years we have been trying the mainly punitive approach: we
have increased penalties, we have hounded the drug addict, and we have
brought out the idea that any person who takes drugs is a most dangerous
person... Our whole dealing with the problem of drug addiction for the past
40 years has been a sorry mess. Problems of Addiction and Habituation
1958). At p. 171.

By the early seventies, it was clear that the situation described by Chief
Vollmer and others was unchanged: prohibition had not worked. Drugs were
plentifully available on the street and a lively if illegal and often
violent market was flourishing. Addicts were not being helped. Interdiction
was not working. And organized crime was being fabulously enriched by the
artificially inflated prices of an illegal market.

Many observers at the time concluded as Vollmer had in 1936: criminal
prohibition of drugs was a mistake for the same reasons that alcohol
prohibition (enacted originally at about the same time) had been a mistake.
It was time to rethink criminal prohibition and go in another direction.
Other, non-coercive programs had begun to show effectiveness. Methadone
maintenance on a voluntary, out-patient basis, had shown promise. A study
of one program showed that "the overwhelming majority of patients ...,
after years as criminals on heroin, lead a law-abiding life on methadone
maintenance." And after 5 years, the failure rate remained low. Many people
began to believe that addiction could be treated medically and voluntarily.

But in New York, Governor Nelson Rockefeller concluded otherwise. Despite
nearly 60 years of demonstrable failure, he decided that the trouble with
criminal prohibition was that as punitive as it had been, it hadn't been
punitive enough. The failures of criminal prohibition, Rockefeller argued,
could be reversed by even tougher laws and a more punitive use of the
state's police power. Thus was born the infamous Rockefeller drug laws, now
nearly universally considered a tragic mistake. Even Laurence Rockefeller,
the late Governor's brother, has recently stated so publicly, and
speculated that his brother, if he were still alive, would today be
admitting that mistake. Perhaps.

What is clear is that between 1973, when the Rockefeller laws were passed,
and today, the use of the criminal sanction has increased exponentially. On
the federal level alone, expenditures have gone up from $1.65 billion in
1982 to $17 billion in 1998. And billions more have been spent by the
states. Incarceration has gone up from a few hundred thousand to more than
1.7 million; 85 percent of the increase in incarceration between 1985 and
1995 was due to drug convictions, according to the Bureau of Justice
Statistics, the bulk of them for nonviolent crimes. Driven by stunning and
unjustifiable disparities in sentencing between crack cocaine and powder
cocaine, as well as other racial disparities in how drug laws are enforced,
disproportionate numbers of blacks and Latinos are filling our prisons.
According to federal government statistics, only 13 percent of monthly drug
users are black; but 37 percent are arrested for possession, 55 percent are
convicted of possession and 74 percent are imprisoned for possession. One
of every three African American men between the ages of 20-29 are now under
the jurisdiction of the criminal justice system. 14 percent of African
American men are permanently disenfranchised.

Three-quarters of the swollen federal drug policy budget remains devoted to
law enforcement, much of it to interdiction, despite the fact that no
serious student of interdiction thinks it has worked or that it can work.
Federal criminalization has clogged the federal court system and, according
to Chief Justice William Rehnquist, is having deleterious consequences for
the administration of justice. About half of all drug arrests are for
marijuana, over 80 percent of them for possession. Urine testing has become
a routine predicate to holding a job in 81 percent of major U.S. firms,
despite studies that show that such testing is an worthless to the employer
as it is degrading and intrusive to the employee. Civil asset forfeiture of
property -- what one historian has called a government license to steal --
has become widespread, at both federal and state levels, leading Judiciary
Committee Chairman Henry Hyde to introduce a bill designed to reform this
abuse of power. And drug interdiction has become a pretext for stopping
cars whose drivers are black and Latino, leading to an epidemic of racial
profiling and the harassment of innocent people that amounts to a shocking
reprise of old-style Jim Crow justice.

Our 85-year experiment with criminal prohibition of drugs, and the
escalation of that experiment since 1980, has not solved the problems it
was meant to solve and it has created other serious problems resulting from
the excessive and unprincipled use of the government's police power.

To summarize:

Criminalization has not made drugs less available. For example, a federal
study showed that in 1975, 87 percent of young people said marijuana was
"very easy" or "fairly easy" to obtain. In 1998 - after millions of arrests
and an exponential increase in prison sentences - the figure was 89.6 percent.

Although criminalization has not made drugs less available, it has assured
that they would be available only under the most dangerous and violent
circumstances. And most of the violence is not due to the pharmacological
influence of drugs but to the illegality of the market that is created by
the law. Al Capone did not shoot people because he was drunk and drug
dealers do not shoot people because they are high. They settle commercial
disputes with violence in the streets because prohibition permits no other
option.

Criminalization does not deter commercial transactions; to the contrary, it
enriches criminals and attracts an endless parade of new entrepreneurs due
to the prospect of stunning profit margins.

Criminalization does not help addicts. The huge amount of spending on
interdiction and other law enforcement - despite August Vollmer's prophetic
warning over 60 years ago - detracts from our ability to provide treatment
on demand to all those who want it.

Criminalization creates other problems not created by the drugs themselves:

It has eroded the Fourth Amendment creating in effect what Justice Thurgood
Marshall once called "a drug exception" to the Constitution. It has
resulted in widespread urine testing, what Justice Antonin Scalia has
called "an immolation of privacy and human dignity."

It has led to an unprecedented explosion of racially skewed incarceration.
Despite the fact that most drug users are white, most of those arrested and
imprisoned are people of color. Drug prohibition has become an engine for
the restoration of Jim Crow justice.

It has led to the spread of AIDS, a genuine public health disaster, because
of prohibition on the availability and distribution of clean needles.

It has violated sound medical practice by restricting the use of methadone
as a prescriptive medicine and by interfering with the management of pain,
wasting syndrome and glaucoma by barring the medical use of marijuana and
by resisting the scientific research that would go beyond anecdotal evidence.

It has swept away the right not to have your property taken without due
process of law, though the extensive use of civil asset forfeiture, a
practice one leading historian has called a government "license to steal."

It has established a pretext for racial profiling on our highways, in our
airports, at our customs checkpoints and on our streets that are based not
on evidence but on skin color.

Above all, criminalization has intruded the state into that zone of
personal sovereignty where the state should never be allowed to go, at
least not in a society that calls itself free. By failing to distinguish
between users and abusers, the government has demonized all drug use
without differentiation, has systematically and hysterically resisted
science and has turned millions of stable and productive citizens into
criminals. The Hippocratic principle that governs medical practice is:
"First, do no harm." Criminal prohibition has, since 1914, done immense
harm, without achieving its stated goals.

The American Civil Liberties Union urges Congress to begin again, to
initiate a serious and extensive study of drugs, their benefits and their
harm, and the proper role of government in mediating such harms as may
exist. We believe such an inquiry, fairly conducted, will lead to the
conclusion that criminalization was a mistake, and that both freedom and
safety, as well as a concern for addicts, require the abandonment of
criminal prohibition and the development of a differentiated and
appropriate regulatory system to control the availability of drugs.

We urge you to move in that direction.

Endnote:

1 What exactly the short-and long-term effects of particular drugs are at
particular potencies, dosages and frequencies of use is often a matter of
dispute. But it is critical that such disputes be settled by impartial
scientific scrutiny and not, as they often have, by ideology, politics and
propaganda.