Beyond the War on Drugs: Overcoming a Failed Public Policy

Introduction: Declaring War on Drugs (Again)

The black market thrives on enforcement: the harder we push, the more efficient and bold the black market becomes.

p. 3

“Under Nixon, it [recreational drug use] spread from the beatniks and the bohemian avant garde of the 1950s to the hippies, yippies, and straight youth of the 1960s. In the 1970s and 1980s, the use of marijuana, cocaine, and other drugs spread to the yuppies, the upper middle class, and then to the very mainstream of society: 24 million admitted marijuana smokers and 12 million users of cocaine turned up in the 1982 National Household Survey on Drug Abuse.

P. 8

“One way or another, no matter what the War on Drugs does to supply, the black market in cocaine will play its trump: it thrives on enforcement, depends on it.”

The Black Market in Cocaine

The simple act of labeling products in 1906 dropped cocaine use so low that only the massive prohibition enforcement of the seventies was able return cocaine use to, and surpass, pre-1906 levels.

p. 10

The Pure Food and Drug Act of 1906 required labelling. In 1906, national consumption of cocaine peaked at 21,000 pounds, “a figure unsurpassed on a per capita basis until the mid-1970s.”

P. 12

“These [NIDA] figures are probably low because of the tendency of respondents to withhold admission of a felony and because the survey excluded respondents from “group quarters” (e.g., college dorms and military bases) who probably take drugs at greater than average rates.”

P. 22-23

Describes Siegel’s 99-user cocaine study, including the later follow-up.

P. 27

“Follow-up studies showed that better than 90 percent of the heroin-using soldiers ceased their habit upon return to the United States.”

The Economics of the Black Market in Cocaine

For criminal gangs, prohibition is “a modern day alchemy” spinning mundane plants into gold and influence.

p. 36

“In 1981, a sealed, one-ounce bottle of Merck & Company pharmaceutical cocaine cost about $50 through legal channels; when stolen, it commanded $3,200 on the black market. The $3,150 price differential arose solely from the difference in legality. This power of the criminal law to create value represents a modern-day version of alchemy, taking a mundane medicinal product and transforming it into a treasure.”

The Structure of the Cocaine Industry

Prohibition made the transformation of the coca leaf into cocaine the only viable means of transport.

p. 40

“The coca leaf represents one of Mother Nature’s finest adaptations to a hostile environment. Despite the obstacles imposed by high altitudes, steep mountain slopes, and poor soil, the coca bush grows prolifically in the Andes. It produces its first crop of leaves after 18 months. In favorable conditions it yields three to four leaf crops per year and may continue to produce for 30 to 40 years.

‘After the leaf is harvested and dried, it goes through a three-stage process for the extraction of cocaine. First, in the pasta lab, 200 kilos of leaf are immersed in a solution of kerosene, water, caustic soda, and other chemicals to produce 1 kilo of coca paste. Subsequently, base labs convert the coca paste to cocaine base at a ratio of 2.5:1 by adding sulfur and other chemicals. Finally, the “crystal” labs crystallize the base into cocaine hydrochloride at a ratio of roughly 1:1.

‘In these “kitchens,” South American “cooks” produce high-grade cocaine in the 90 percent purity range with relative ease, using crude equipment. Indeed, “all you need to make cocaine is three buckets and two sheets.” For this reason, kitchens are easy to set up almost anywhere—in makeshift huts in remote areas, in rural cottages or urban warehouses, etc.—and difficult to detect. Pasta labs have proliferated in the coca-growing regions because paste is less bulky to ship than coca leaves. The coca paste is most commonly smuggled into other countries, particularly Colombia, for processing into crystal, followed by export to foreign markets.”

P. 45

“At retail, cocaine sells primarily in fractions of an ounce—quarters (7 grams), eighths (3.5 grams), and grams. The gram is probably the most common unit of sale, having the right balance between price ($60-$100) and quantity and providing enough for an evening’s entertainment for one or two couples.”

International Law Enforcement: The Futile Quest for Control

Eradication of cocaine means, in some countries, the destruction of profitable farms for no benefit to the farmers.

p. 56

“Because abuse of cocaine has not (yet) become a serious problem in Bolivian society, the campesinos [coca growers] argue that the United States should not force Bolivians to pay the price for solving a Yankee problem. As a result, when the governments of Bolivia and the United States issued a joint communiqué in 1983 announcing an agreement in principle for control of coca by substitution and eradication, a conclave of growers’ union representatives denounced the accord. Two years later, hundreds of peasants marched through La Paz to the United States Embassy, shouting, “Long live coca, Death to the Yankees.””

As it turns out, Wisotsky’s choice of events was a good one. In 2003, the coca growers ousted then Bolivian president and U.S. ally Sánchez de Lozada.

The Pathology of the War on Drugs: The Assault on Justice and Civil Liberties

The drug war begins to resemble the witch-hunts of centuries past, where lawyers are discouraged from representing the accused. And the tactics of drug warriors resemble the tactics of criminals so much that when criminals put on the uniform and masquerade as law enforcement, their victims can’t tell the difference.

p. 121-122

“One of the most serious incursions into the rights of criminal defendants arises from the Department of Justice tactic of using the criminal forfeiture provisions of the act against fees paid to defense counsel. When so used, prosecutors claim that the fee received by counsel represents the proceeds of a controlled substances violation, and upon conviction of the client, the Government asks the court to order the fee forfeited to the United States…. In announcing his retirement from drug cases, [one of Miami’s most highly regarded drug defense lawyers, “Diamond” Joel] Hirschhorn cited both the stigma of drug defense and the threat to fees: “It’s just not worth the aggravation to represent major drug dealers. The government comes after your fees. It’s not worth it…. I’m doing tax fraud. And I like to do one murder case a year. It’s OK to represent a murderer. Everyone approves of that.””

“Ill-gotten gains” can apply to many crimes: tax fraud, bank robbery, etc. “If taken at face value, the Government’s rationale would mean that no criminal defendant could retain private counsel without first proving that he has an untainted source of money for the fee.”

P. 126

Three burglars dress as police officers, handcuff a woman and her husband, and proceed to ransack the place, saying they were there to search the place. “Her husband asked them if they had a search warrant and they said, ‘We don’t need one, we work in the drug department.’”

P. 131

“Informants are paid, in effect, to encourage or to “create” crime. In the most blatant cases, the incentive system includes payment contingent upon the making of an arrest, or worse, payment in proportion to the number of pounds or kilos or the value of property seized.

‘An example of this type of behavior involves a woman who “set up” at least 40 men in South Florida. Her tactics included seducing an intended defendant and establishing a sexual relationship. After a few weeks of gentle pressure, she would arrange a drug deal between her reluctant “boyfriend” and drug enforcement agents. The “boyfriend” would be busted, and the woman would get paid.”

P. 138

“In this climate of repression, politicians advocate capital punishment for drug dealers, or isolation of them in Arctic gulags, or simply shooting drug planes out of the sky without charges or trial. What will tomorrow’s political agenda find tolerable?”

The Pathology of the War on Drugs: Corruption and Violence in the Black Market

Prohibition isn’t just lucrative for organized crime, but also for law enforcement. Whereever prohibition is stepped up, corruption among law enforcement and the criminal justice system increases.

p. 145

Law enforcement officials possess “a highly marketable service—the sale of nonenforcement of the law.” For example, “In exchange for money and Caribbean trips, two customs officers at Miami International Airport were allowing drug couriers to carry cocaine through their posts. The average fee was $3,500 a kilo.” [And you want us to stop the War on Drugs? How could I afford my Mazerati?]

Others sell “information relating to wiretaps, search warrant applications, planned arrests, names of informants, surveillance operations, and related sensitive information.” In one case, “the identity of an informant was apparently supplied to a dealer; the informant’s body was later found, along with three others, in a burning car. Trussed hand and foot, the victims had been beaten with baseball bats and stabbed. One had been shot. In the home of the chief murder suspect were found confidential DEA surveillance reports.”

P. 146

“Another form of more regularized bribery occurs when a drug agent protects a dealer from arrest by conferring de facto immunity, i.e., by claiming that person as his confidential informant. Some officers charge for providing this “protection” by taking periodic payments or a percentage of sales and revenues. At the level of street sales, dealers commonly make payoffs to police to be free to operate. One author reported that New York City street dealers in heroin paid up to 40 percent of gross sales in bribes to avoid arrest.” [Mark Moore, Buy and Bust]

“Conversely, dealers who do not pay for protection or who fall out of favor may be ensnared by the so-called dropsy gambit. A policeman covering up an illegal search of a dealer’s body or car will claim that the defendant threw away some drugs as he was approached. This pattern of perjured testimony became so commonplace that the District Attorney of New York County joined with defense counsel in arguing for a shift in the burden of proof to the prosecution on motions to suppress evidence because “it is very difficult in many cases to distinguish between fact and fiction.””

The Knapp Commission “exposed pervasive corruption in the narcotics section of the New York City Police Department” (late 1960s). Agents “extorted money from dealers, illegally retained seized drugs or money, accepted bribes from dealers, and gave false testimony, especially on pretrial motions to suppress unlawfully seized evidence.” In the late 1960s, “almost every agent [of the Fed Bur of Narcotics and Dangerous Drugs] was fired, forced to resign, or transferred.” Most of the heroin seized in the “French Connection” case disappeared from the NYPD property room.

P. 147

Almost the entire homicide squad of the Metro Dade Police Department—9 detectives—was indicted on federal charges of selling out to a dope pusher. They “used their official positions to solicit money, gifts and cocaine from known criminals which influenced them to assist in the commission of crimes, prevent arrest of the criminals and get charges against them dropped. They are accused of robbing the dead… [and] of bribing other police to help them steal money and drugs officially seized as evidence” Four were convicted at trial. [Miami Herald, May 2, 1982, Section D]

p. 152

“Whether or not the public actually gets hurt, a daylight execution on a public road understandably undermines one’s sense of security.”

The International Pathology of the War on Drugs: Corruption, Instability, and Narco-Terrorism

It is hard to imagine a system more suited for funding terrorism and crime than the drug war.

p. 155

“American drug enforcement has been profoundly destabilizing to our allies.” The War on Drugs provides “a rich source of finance for hostile governments in Nicaragua and Cuba to fund the export of violent revolution to other nations in the hemisphere through a drugs-for-arms cycle of trade…. by exporting the deleterious side effects of the War on Drugs to countries that service our black market, it has increased their vulnerability to subversion or violent overthrow.”

P. 156

On July 17, 1980, the democratically elected civilian government of Bolivia was deposed in what “later came to be called the “cocaine coup.” After the coup, the military government of General Garcia Meza formed a syndicate with producers of cocaine in order to share in the profits of the business.”

P. 168

“neither drug smugglers, narco-terrorists, nor hostile governments could design a system better suited for the advancement of their interests” than the War on Drugs.

Sources of the Impasse

Richard Nixon drastically ramped up the powers of federal law enforcement in the name of the war on drugs, using trumped-up data and claiming a national emergency.

p. 183

“Perhaps the most cynical of all of his [President Nixon’s] Administration’s manipulations of the drug issue occurred in the precipitous “manufacture” of an eightfold jump in the estimated number of heroin addicts—from 69,000 in 1969 to 560,000 in 1971—by applying a different formula to the same raw data. Relying in large part on these figures, the President went public with the “news” of a drug abuse crisis. In a message to Congress on June 17, 1971, he declared that the drug abuse problem had “assumed the dimensions of a national emergency.” The next day, in an address to media executives, he stated that “[d]rug traffic is public enemy number one domestically in the United States today and we must wage a total offensive.”

‘Acting on that offensive, and circumventing bureaucratic opposition in the Bureau of Customs and the BNDD, he issued an executive order creating an anti-drug agency operating directly under the Executive Office of the President. The new agency, the Office of Drug Abuse Law Enforcement (ODALE), had been proposed in a Presidential option paper drafted by G. Gordon Liddy. Formation of ODALE was the first critical step in the ultimate consolidation of all drug investigation power in the White House, through the Attorney General in 1973, when all drug agencies were merged in the DEA under the authority of the Department of Justice. Epstein [Agency of Fear] argues darkly that Nixon used the powers of the Presidency to implement, by executive order, a hidden plan to create new “investigative agencies [including the DEA] having the potential… to assume the functions of the [Watergate] Plumbers on a far greater scale.””

P. 187

“While the War on Drugs propagates the myth that marijuana poses an equal menace [to alcohol] to highway safety, Car and Driver magazine tested and disproved that proposition with actual time trials and other techniques that measured driver performance. Drunk drivers showed radical impairment of motor skills. Stoned drivers showed little or none, and several actually improved performance on challenging slalom courses.” [Mike Knepper, “Puff, the Dangerous Drug,” Car and Driver, June, 1980, p. 43; Steve Thompson, “High Driving,” Car and Driver, March 1978. For contrary conclusions, see Ravin v. State, 537 P.2d 494 (Ala. 1975), fn. 3:

Evidence that marijuana has a detrimental effect on driving performance, especially as the dose increases, continues to mount. It has been found to increase both braking and starting times, to adversely affect attention and concentration abilities, and to detract from performance on a divided attention task, all of which are presumably involved in driving. A recent Canadian study of driving ability while marijuana-intoxicated examined drivers’ performance under both driving course and actual traffic conditions. A significant decline in performance as measured by several criteria was found in most drivers tested. … Marijuana and Health, Fourth Report to the U.S. Congress from the Secretary of Health, Education, and Welfare 10-11 (1974).]