More and more ordinary people, elected officials, newspaper columnists, economists, doctors, judges and even the Surgeon General of the United States are concluding that the effects of our drug control policy are at least as harmful as the effects of drugs themselves. After decades of criminal prohibition and intensive law enforcement efforts to rid the country of illegal drugs, violent traffickers still endanger life in our cities, a steady stream of drug offenders still pours into our jails and prisons, and tons of cocaine, heroin and marijuana still cross our borders unimpeded.

The American Civil Liberties Union (ACLU) opposes criminal prohibition of drugs. Not only is prohibition a proven failure as a drug control strategy, but it subjects otherwise law-abiding citizens to arrest, prosecution and imprisonment for what they do in private. In trying to enforce the drug laws, the government violates the fundamental rights of privacy and personal autonomy that are guaranteed by our Constitution. The ACLU believes that unless they do harm to others, people should not be punished -- even if they do harm to themselves. There are better ways to control drug use, ways that will ultimately lead to a healthier, freer and less crime-ridden society.

Currently Illegal Drugs Have Not Always Been Illegal

During the Civil War, morphine (an opium derivative and cousin of heroin) was found to have pain-killing properties and soon became the main ingredient in several patent medicines. In the late 19th century, marijuana and cocaine were put to various medicinal uses -- marijuana to treat migraines, rheumatism and insomnia, and cocaine to treat sinusitis, hay fever and chronic fatigue. All of these drugs were also used recreationally, and cocaine, in particular, was a common incredient in wines and soda pop -- including the popular Coca Cola.

At the turn of the century, many drugs were made illegal when a mood of temperance swept the nation. In 1914, Congress passed the Harrison Act, banning opiates and cocaine. Alcohol prohibition quickly followed, and by 1918 the U.S. was officially a "dry" nation. That did not mean, however, an end to drug use. It meant that, suddenly, people were arrested and jailed for doing what they had previously done without government interference. Prohibition also meant the emergence of a black market, operated by criminals and marked by violence.

In 1933, because of concern over widespread organized crime, police corruption and violence, the public demanded repeal of alcohol prohibition and the return of regulatory power to the states. Most states immediately replaced criminal bans with laws regulating the quality, potency and commercial sale of alcohol; as a result, the harms associated with alcohol prohibition disappeared. Meanwhile, federal prohibition of heroin and cocaine remained, and with passage of the Marijuana Stamp Act in 1937 marijuana was prohibited as well. Federal drug policy has remained strictly prohibitionist to this day.

Decades of Drug Prohibition: A History of Failure

Criminal prohibition, the centerpiece of U.S. drug policy, has failed miserably. Since 1981, tax dollars to the tune of $150 billion have been spent trying to prevent Columbian cocaine, Burmese heroin and Jamaican marijuana from penetrating our borders. Yet the evidence is that for every ton seized, hundreds more get through. Hundreds of thousands of otherwise law abiding people have been arrested and jailed for drug possession. Between 1968 and 1992, the annual number of drug-related arrests increased from 200,000 to over 1.2 million. One-third of those were marijuana arrests, most for mere possession.

The best evidence of prohibition's failure is the government's current war on drugs. This war, instead of employing a strategy of prevention, research, education and social programs designed to address problems such as permanent poverty, long term unemployment and deteriorating living conditions in our inner cities, has employed a strategy of law enforcement. While this military approach continues to devour billions of tax dollars and sends tens of thousands of people to prison, illegal drug trafficking thrives, violence escalates and drug abuse continues to debilitate lives. Compounding these problems is the largely unchecked spread of the AIDS virus among drug-users, their sexual partners and their offspring.

Those who benefit the most from prohibition are organized crime barons, who derive an estimated $10 to $50 billion a year from the illegal drug trade. Indeed, the criminal drug laws protect drug traffickers from taxation, regulation and quality control. Those laws also support artificially high prices and assure that commercial disputes among drug dealers and their customers will be settled not in courts of law, but with automatic weapons in the streets.

Drug Prohibition is a Public Health Menace

Drug prohibition promises a healthier society by denying people the opportunity to become drug users and, possibly, addicts. The reality of prohibition belies that promise.

No quality control. When drugs are illegal, the government cannot enact standards of quality, purity or potency. Consequently, street drugs are often contaminated or extremely potent, causing disease and sometimes death to those who use them.

Dirty needles. Unsterilized needles are known to transmit HIV among intravenous drug users. Yet drug users share needles because laws prohibiting possession of drug paraphernalia have made needles a scarce commodity. These laws, then, actually promote epidemic disease and death. In New York City, more than 60 percent of intravenous drug users are HIV positive. By contrast, the figure is less than one percent in Liverpool, England, where clean needles are easily available.

Scarce treatment resources. The allocation of vast sums of money to law enforcement diminishes the funds available for drug education, preventive social programs and treatment. As crack use rose during the late 1980s, millions of dollars were spent on street-level drug enforcement and on jailing tens of thousands of low level offenders, while only a handful of public drug treatment slots were created. An especially needy group -- low-income pregnant women who abused crack -- often had no place to go at all because Medicaid would not reimburse providers. Instead, the government prosecuted and jailed such women without regard to the negative consequences for their children.

Drug Prohibition Creates More Problems Than It Solves

Drug prohibition has not only failed to curb or reduce the harmful effects of drug use, it has created other serious social problems.

Caught in the crossfire. In the same way that alcohol prohibition fueled violent gangsterism in the 1920s, today's drug prohibition has spawned a culture of drive-by shootings and other gun-related crimes. And just as most of the 1920s violence was not committed by people who were drunk, most of the drug-related violence today is not committed by people who are high on drugs. The killings, then and now, are based on rivalries: Al Capone ordered the executions of rival bootleggers, and drug dealers kill their rivals today. A 1989 government study of all 193 "cocaine-related" homicides in New York City found that 87 percent grew out of rivalries and disagreements related to doing business in an illegal market. In only one case was the perpetrator actually under the influence of cocaine.

A Nation of Jailers. The "lock 'em up" mentality of the war on drugs has burdened our criminal justice system to the breaking point. Today, drug-law enforcement consumes more than half of all police resources nationwide, resources that could be better spent fighting violent crimes like rape, assault and robbery.

The recent steep climb in our incarceration rate has made the U.S. the world's leading jailer, with a prison population that now exceeds one million people, compared to approximately 200,000 in 1970. Nonviolent drug offenders make up 58 percent of the federal prison population, a population that is extremely costly to maintain. In 1990, the states alone paid $12 billion, or $16,000 per prisoner. While drug imprisonments are a leading cause of rising local tax burdens, they have neither stopped the sale and use of drugs nor enhanced public safety.

Not Drug Free -- Just Less Free. We now have what some constitutional scholars call "the drug exception to the Bill of Rights." Random drug testing without probable cause, the militarization of drug law enforcement, heightened wiretapping and other surveillance, the enactment of vaguely worded loitering laws and curfews, forfeiture of people's homes and assets, excessive and mandatory prison terms -- these practices and more have eroded the constitutional rights of all Americans.

Prohibition Is A Destructive Force In Inner City Communities

Inner city communities suffer most from both the problem of drug abuse and the consequences of drug prohibition.

Although the rates of drug use among white and non-white Americans are similar, African Americans and other racial minorities are arrested and imprisoned at higher rates. For example, according to government estimates only 12 percent of drug users are black, but nearly 40 percent of those arrested for drug offenses are black. Nationwide, one-quarter of all young African American men are under some form of criminal justice supervision, mostly for drug offenses. This phenomenon has had a devastating social impact in minority communities. Moreover, the abuse of drugs, including alcohol, has more dire consequences in impoverished communities where good treatment programs are least available.

Finally, turf battles and commercial disputes among competing drug enterprises, as well as police responses to those conflicts, occur disproportionately in poor communities, making our inner cities war zones and their residents the war's primary casualties.

Drugs Are Here to Stay -- Let's Reduce Their Harm

The universality of drug use throughout human history has led some experts to conclude that the desire to alter consciousness, for whatever reasons, is a basic human drive. People in almost all cultures, in every era, have used psychoactive drugs. Native South Americans take coca-breaks the way we, in this country, take coffee-breaks. Native North Americans use peyote and tobacco in their religious ceremonies the way Europeans use wine. Alcohol is the drug of choice in Europe, the U.S. and Canada, while many Muslim countries tolerate the use of opium and marijuana.

A "drug free America" is not a realistic goal, and by criminally banning psychoactive drugs the government has ceded all control of potentially dangerous substances to criminals. Instead of trying to stamp out all drug use, our government should focus on reducing drug abuse and prohibition-generated crime. This requires a fundamental change in public policy: repeal of criminal prohibition and the creation of a reasonable regulatory system.

Ending Prohibition Would Not Necessarily Increase Drug Abuse

While it is impossible to predict exactly how drug use patterns would change under a system of regulated manufacture and distribution, the iron rules of prohibition are that 1) illegal markets are controlled by producers, not consumers, and 2) prohibition fosters the sale and consumption of more potent and dangerous forms of drugs.

During alcohol prohibition in the 1920s, bootleggers marketed small bottles of 100-plus proof liquor because they were easier to conceal than were large, unwieldy kegs of beer. The result: Consumption of beer and wine went down while consumption of hard hard liquor went up. Similarly, contemporary drug smugglers' preference for powdered cocaine over bulky, pungent coca leaves encourages use of the most potent and dangerous cocaine products. In contrast, under legal conditions, consumers -- most of whom do not wish to harm themselves -- play a role in determining the potency of marketed products, as indicated by the popularity of today's light beers, wine coolers and decaffeinated coffees.Once alcohol prohibition was repealed, consumption increased somewhat, but the rate of liver cirrhosis went down because people tended to choose beer and wine over the more potent, distilled spirits previously promoted by bootleggers. So, even though the number of drinkers went up, the health risks of drinking went down. The same dynamic would most likely occur with drug legalization: some increase in drug use, but a decrease in drug abuse.

Another factor to consider is the lure of forbidden fruit. For young people, who are often attracted to taboos, legal drugs might be less tempting than they are now. That has been the experience of The Netherlands: After the Dutch government decriminalized marijuana in 1976, allowing it to be sold and consumed openly in small amounts, usage steadily declined -- particularly among teenagers and young adults. Prior to decriminalization, 10 percent of Dutch 17- and 18-year-olds used marijuana. By 1985, that figure had dropped to 6.5 percent.

Would drugs be more available once prohibition is repealed? It is hard to imagine drugs being more available than they are today. Despite efforts to stem their flow, drugs are accessible to anyone who wants them. In a recent government-sponsored survey of high school seniors, 55 percent said it would be "easy" for them to obtain cocaine, and 85 percent said it would be "easy" for them to obtain marijuana. In our inner-cities, access to drugs is especially easy, and the risk of arrest has proven to have a negligible deterrent effect. What would change under decriminalization is not so much drug availability as the conditions under which drugs would be available. Without prohibition, providing help to drug abusers who wanted to kick their habits would be easier because the money now being squandered on law enforcement could be used for preventive social programs and treatment.

What The United States Would Look Like After Repeal

Some people, hearing the words "drug legalization," imagine pushers on street corners passing out cocaine to anyone -- even children. But that is what exists today under prohibition. Consider the legal drugs, alcohol and tobacco: Their potency, time and place of sale and purchasing age limits are set by law. Similarly, warning labels are required on medicinal drugs, and some of these are available by prescription only.

After federal alcohol prohibition was repealed, each state developed its own system for regulating the distribution and sale of alcoholic beverages. The same could occur with currently illegal drugs. For example, states could create different regulations for marijuana, heroin and cocaine.

Ending prohibition is not a panacea. It will not by itself end drug abuse or eliminate violence. Nor will it bring about the social and economic revitalization of our inner cities. However, ending prohibition would bring one very significant benefit: It would sever the connection between drugs and crime that today blights so many lives and communities. In the long run, ending prohibition could foster the redirection of public resources toward social development, legitimate economic opportunities and effective treatment, thus enhancing the safety, health and well-being of the entire society.

What You Can Do

You can help bring about drug policy reform:

> Demand candid discussion of alternatives to prohibition by public officials.

> Break the silence -- write letters to your elected representatives and letters-to-the-editor of your local newspaper.

> Support incremental harm-reduction measures like needle exchange programs and medical marijuana legislation.

> Use this briefing paper to raise the consciousness of your friends and co-workers.

ACLU
American Civil Liberties Union
132 West 43rd Street
New York, N.Y. 10036

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