Move Grows in Puerto Rico to Legalize Pot
On June 20, 2008 Birdsong read with interest an Associated Press news article with the above captioned headline. The article indicated that a former health secretary and an ex-university president want to legalize marijuana in Puerto Rico, saying it will reduce a burgeoning prison population and prevent young adults from being exposed to violent criminals.
About 24 percent of the island’s 13,500 prison inmates have been convicted on drug charges, and an estimated 80 percent of crimes are drug related.
Under the plan, marijuana would be taxed as liquor and tobacco are now, with proceeds going toward drug-treatment programs. The proposal is supported by other former public officials and a medical doctor, and calls for stricter penalties against drug traffickers, and comes as the U.S. Caribbean territory prepares to launch drug-treatment programs to wean addicts from crack, heroin and other substances.
The article makes Birdsong believe that many Puerto Ricans have come to realize that the fight against drugs using punishment has not worked. It also reminded Birdsong of a speech he presented at the Annual Law and Society Meeting way back in the year 2000 that echoed similar sentiments. You may read it below:
It Is Time to Declare Our Victory on the War on Drugs
And March Our Army Home to an Era Of
Leonard E. Birdsong
Copyright © 2000
Prepared for the Law and Society Association 2000 Annual Meeting
Miami Beach, Florida
May 26 – 29, 2000
I am a law professor who believes that our war on drugs has been a failure and should be brought to an end. An era of decriminalization, treatment and compassion should then commence. Our so called drug war has become a vehicle which imprisons a disproportionate share of African Americans who then become disenfranchised and alienated from our society. In this article I comment on the failure of the drug war, reveal statistics concerning the disenfranchisement of African Americans as a result of that war, and I propose a solution that could take the onus of this war off the backs of African Americans.
I had not out publically spoken out or written on the topic until now. However, upon reading my local morning newspaper2 one day recently, I was struck by an article and two letters to the editor which spoke to me in such a way that I was compelled to give my own commentary concerning the folly of our continued so called war on drugs. Although my thoughts here will be viewed by some as nothing more than ranting of another liberal-leaning law professor, allow me to admit that I am. Nevertheless, please judge my commentary in light of my background as a former federal prosecutor and as a former U.S. State Department Foreign Service officer who was once a soldier in that same war on drugs. And, one who is an African American.
In my younger days, I prosecuted drug dealers and drug related crimes as an Assistant United States Attorney in Washington, D.C., and after that, as a Special Assistant United States Attorney in the U.S. Virgin Islands. Later, as a State Department foreign service officer in Germany and the Caribbean, I helped track alleged drug shipments, as well as shipments of illegal aliens, from port to port in order to interdict them before entry into the United States. Later still, as American Consul for Visa Affairs at the American Embassy in Nassau, Bahamas I was often called upon to invalidate the U.S. visas of elected Caribbean officials and politicians suspected of being involved with the illegal smuggling of drugs to the United States. Those are my credentials. Now on to those newspaper pieces.
The first article that struck my attention that day provided the following headline: Big Guns Disable Drug Boats.3 The article advised that recently Coast Guard sharpshooters had been firing from helicopters to knock out the engines of cocaine-laden boats in the Caribbean. The article continued that this tactic had not been used by the United States since the Prohibition era of the 1920’s. Allegedly, these previously secret assaults, styled “Operation New Frontier”, had netted 3 tons of cocaine and led to the arrest of 13 crewmen of open-hull, low profile boats called Super Smugglers. The article also maintained that this operation and others in the past year have brought cocaine confiscation to a record 53 tons, with a street value of $3.75 billion. The article concludes by quoting White House drug-control director Barry McCaffrey who said, “We have made drug smugglers afraid. We will now make them disappear.” Somehow, I doubt it.
The second piece I read that day further along in the same paper was a letter to the editor from a Mr. A.F. Gagne of Kissimmee, Florida.7 Mr. Gagne, in his letter, decried the fact that our decades long war on drugs may drag us into an escalation of that war to battle anarchy in Columbia against rebels who fuel their revolution against the government with money generated by the drug trade. Mr. Gagne posed several alternatives to solve the drug problem. The one he believed that would be the most humane is what he describes as “controlled permissiveness, comparable to the way we control alcohol.” That is, he advocates that doctors and detoxification clinics prescribe inexpensive “hard” drugs of standardized potency. Mr. Gagne maintained that pot should be easily available in stores, taxed like cigarettes or booze. However, he continued “But if you fall on your face on the street or drive while stoned, you would go to jail.” In other words, he seeks decriminalization of drugs.
The third piece that caught my attention that day was a second letter to the editor. This letter was written by William A. Black of St. Cloud, Florida.11 Mr. Black wrote “Our government may be on the brink of sending American troops to Colombia to fight left-wing insurgents. This situation has ‘Vietnam’ written all over it and could easily involve us in yet another bloody, historically pointless war.” Mr. Black was concerned that such a war would attract a million homeless Colombian refugees who would want to come to the U.S., many of whom he believed would end up in his home state of Florida. Mr. Black believes that Florida is crowded enough as it is. He ended by urging “Keep the United States out of Colombia. I agree. But, perhaps, quite not for the same reasons as Mr. Black. Being a resident of Florida myself, I have observed that we already have hundreds, probably, thousands, of Columbians coming to Florida. Many of these are middle class people who do not wish to wait until their ship of state — Colombia — has sunk. They are getting off now.
I say to Mr. Black: Yes, we should stay out of Colombia, but be advised that Colombians are already in Florida and more will arrive each day.
II. WE HAVE ALREADY LOST THE WAR
I contend that we have already lost the war on drugs. We have lost the war for a number of reasons. We have lost because we are treating drug addiction and usage as a criminal problem when it is actually a public health problem. We have lost because many Colombian citizens are fleeing their home land due to the chaos of the drug war. We have, also, lost the war because we are sending people away to prison for longer periods of time, for either possessing, manufacturing or distributing drugs. Finally, I believe we have lost the war because it appears that we are using the drug war as an immoral pretext to imprison as many African Americans as possible for nonviolent behavior.
The fact that the White House drug-control director maintains that we have confiscated
53 tons of cocaine in the past years indicates to me that a lot more of the substance is reaching our shores. And what does that tell us? Simply put, there is a tremendous demand for cocaine and other such mood altering substances. We continue to concentrate on cutting the supply, forgetting that without demand there would be no need for the supply. Now, this does not mean that I condone drug use. I do not. However, the tonnage of drugs coming into this country indicates to me that there are a lot of people who do condone and support such use. A recent study reveals that seventy percent of drug users in this country hold full time jobs.14 This is an unenviable, but, nonetheless, a large statistic. One that should not be ignored.
Another statistic that should not be ignored is the fact that a large and disproportionate share of our nation’s population, African-Americans, has been incarcerated for felony crimes concerning drugs. Department of Justice statistics reveal that at the end of 1998 there were 1,302,019 felons incarcerated under the jurisdiction of state or federal prisons in the country.15 Although African Americans make up only 12% of the population of the United States, African Americans make up 49 % of the total of prisoners under state and federal jurisdiction. At the beginning of 1998 there were 548,900 African American males in these prisons compared with 541,700 white males. This is an outrageous statistic for our country, or any country — with half of the male prison population drawn from a 12% minority group of our country. The Department of Justice tells us that the increasing number of drug offenses accounted for 30% of the total growth among African-Americans incarcerated between 1990 and 1996.18 These numbers show that our drug war is mainly being fought against African Americans whom we choose to put in jail and, thereby, disenfranchise.
I say disenfranchise because most convicted felons are not allowed to vote. Forty six states prohibit prisoners serving a felony sentence from voting.19 Further, 32 states deny the vote to persons on probation and/or parole. In fourteen of these states a felony conviction can result in disfranchisement for life. In a number of the states and the District of Columbia convicted felons are not allowed to vote for a period of up to ten years after their convictions. Voting in federal elections is determined by the voting laws in place in one’s state of residence. This also applies to those convicted of federal charges. This means that over one half million African American men will not be eligible to vote until quite some time into the next century, if ever. Another failure that our war on drugs has dumped on our society and one that many do not think about.
The Washington, D.C. based Sentencing Project, a nonprofit organization, believes, as do I, that as a result of the high proportion of minorities in the criminal justice system, felony voting restrictions have a very disproportionate racial impact. A Sentencing Project study estimates that 1.4 million African American men, representing 13 percent of the black adult male population, cannot vote as a result of a current or prior felony sentence. In ten states, more than one in five black men is currently disenfranchised. If our drug war continues on its present course the Sentencing Project expects that in the next generation of black men 30-40 percent will lose the right to vote for some or all of their adult lives.
Yet, the news story and the letters to the editor give me hope that there may be an end to the disastrous drug war as we have known it. Ordinary people are starting to wake up to the foolishness and, perhaps, the endlessness of the war on drugs. The newspaper article I have quoted points out we are now firing machine guns to disable the boat engines of drug smugglers in the Caribbean. A tactic not used since the Prohibition era of the 1920’s. Of course, prohibition was our great national, dismal experiment. A constitutional amendment was passed in an effort to prohibit the manufacture, sale and possession, what many people saw as enjoyable, pleasurable and something in great demand– Liquor. Many criminals and smugglers profited from the outlawing of the substance. Law enforcement was stretched thin and some great fortunes were made in supplying what many people wanted, but which the government said they should not have. That dismal experiment came to an end by the sheer weight of the fact that the moral tone of the country shifted to one of control instead of eradication. We machine gunned the boat engines of liquor smugglers in the 1920’s to stop the supply. It did not work during prohibition and it will not work with respect to drugs. Smugglers and drug traffickers motivated by the incentive for big profits will usually find a way to beat the system.
The moral climate of this country must change with respect to drugs. Like we did in Vietnam, I say it is time to declare our victory on the war on drugs and march our army home to an era of controlled decriminalization. My concept of controlled decriminalization would result from a system where the federal government regulates and sells what are termed “controlled substances.” It would also mean no criminal penalties for possession and use of hard drugs, but it would yield jail sentences for illegal sale and distribution outside of the new government regulations. Finally, it would mean the commutation of sentence and restoration of voting rights for those thousands of people incarcerated for nonviolent drug offenses.
When our federal government gives up its fruitless efforts to control supply and recognize that we must instead concentrate on demand, our country will be a lot better served. We must become a society that controls permissiveness. This is quite possible. I have seen our society evolve over the last thirty years with respect to smoking.
When the Twentieth Century began in 1900 it was illegal to sell cigarettes in 14 states, and selling a lottery ticket was a federal crime.25 Many people choose to smoke. Many more people choose not to smoke. Most of us know that smoking is bad for our health. However, we have chosen not to make smoking illegal. Instead, we have seen constant campaigns to show us the dangers of smoking. We have, also, become less tolerant of smoking in public places. We have initiated programs that discourage youths from smoking. I believe that such programs have been somewhat effective. I have lived long enough to know that smoking will probably always be with us. However, to criminalize such conduct would do our society no good – it would only produce more criminals and make those who secretly supply them rich. Instead, we have chosen to tax tobacco to such a point it will be a legal narcotic that only can be afforded by the really well off.
Then there is gambling. While a federal prosecutor in Washington, D.C. in the early 1980’s, I remember many a lunch time conversation in the basement cafeteria of the United States Courthouse, between old-time criminal defense lawyers who would talk about the good old days of the 1950’s and early 1960’s when they made money defending gamblers and numbers runners. The government cracked down hard on such people in Washington and there was good money to be made in representing such people. Flash forward to 1999 – there are no prosecutions for illegal gambling or numbers running in Washington, D.C. The reason? Because the government of the District of Columbia has their own lottery system, as do many of the various states, wherein they legally rake in millions of dollars each week.26 The government took over and legalized what they once thought they could legislate and prosecute out of existence. For whatever reason, there are many people who like to wager, play a game of chance, or gamble. The government of the District of Columbia thought it better to legalize and control gambling. I understand the profits have been enormous. The District of Columbia projects that in FY 2000 revenue from legalized gambling will comprise 2% of its annual budget.27 Also, even though many of the old gambling laws are on the books, they are seldom used. Few people are interested in running illegal games of chance. There is no profit in it for gamblers when the government is their competitor and is sponsoring gambling.
Some day soon this is what we must do with illegal drugs. State and federal governments should decriminalize its possession and use and control the supply and tax its use. By doing so, government could take the profit from the illegal drug trade. When narcotics become decriminalized there will be no need for illegal and underground sales. That is the position of Mr. A.F. Gagne who wrote his letter to the editor of the Orlando Sentinel. What is amazing about this letter is that Mr. Gagne appears to be an ordinary citizen who is practical enough to see what scholars and a few fearless politicians have been trying to tell us for many years about the war on drugs. That is, it has been a failure and we should augment a program of decriminalization.
Those Scholars28 and politicians29 bold enough to state such positions have often been scorned as kooks, or as un-American, and certainly, out of the mainstream. I am certain that I will be so branded and scorned by the “experts” for having written this commentary. But, I believe, it is not un-American or kooky to speak out against a policy that imprisons and disenfranchises a large part of our minority population.
Among many Washington, D.C. policymakers and politicians, it is sacrilege to not hew the company line about continuing to fight the war on drugs. However, I believe that many of these people know, deep down inside of themselves, just as many knew that we could not win a Vietnam war, know that we can not win a war on drugs.
I know that we can not win such a war. Let us stop sacrificing African Americans for the sake of that war.
We could not win a Vietnam war because there was no national will, or rationale, for us to try to win a war that most people could not understand. Similarly, I believe that there is no national will to “win” a war on drugs. The TV brings us news of bigger and bigger drug busts everyday, and we hear of more people going to jail for drug possession. However, the fact is that many of the same people who watch such TV news items are employed drug users, that is, they are among that 70 percent of the drug taking population, pointed out in the recent study.
I submit that many people who wish to continue to fight the drug war see us at war against black and brown people. That is, young, black urban males who sell crack on the corner. Or the Hispanic aliens who finance their trip across the border from Mexico by serving as mules that bring in hidden caches of marijuana and heroin, or the narco revolutionaries of Colombia. I say look again. They are a big part of the problem but they are not the real enemy. The enemy is more likely your white, next door neighbor, who works and uses his income to supply his secret heroin habit. It is these people who fuel the demand. Sometimes when we seek the enemy we find the enemy is us middle class folks.
I maintain that we need to tell our politicians that it is time to stop building so many jails in which to put drug abusers and petty sellers, many of whom are poor African Americans. If we really had a will to fight a drug war we should be going after that 70 percent of the drug using population that hold full-time jobs to supply their habit for illegal drugs. Of course, we would never have enough jails to handle all of those people. Especially, all those white people. Better to decriminalize the drugs and provide these people with substance abuse assistance. Since 1990, our total U.S. prison population, state and federal combined, grew from 800,000 to 1,244,554 in 1997,30 the latest year for which there has been a full statistical analysis. Scholars tell us that such prison figures projected over time show that an estimated 5.1% of all persons in the United States will be confined to state or federal prison sometime during their lifetime. Unfortunately, these same scholars estimate that in this “prison going” climate the likelihood of an African American being imprisoned is 16.2%, whereas there is only 2.5% likelihood that a white person will be imprisoned.
Many in our society speak of the fact that there is no longer a need for affirmative action or programs that unfairly give minorities an edge with respect to job or educational opportunities because we have become an equal opportunity society. I disagree. Until we start sending white drug users to jail on narcotics related charges commensurate with their number in our society we should know that our war on drugs is a sham and that we are not an equal opportunity society. We need to get this idea over to our sanctimonious politicians.
And then there is the letter to the editor written by Mr. Black. Mr. Black warns that we should keep the U.S. out of a drug war in Colombia. I agree. And here, I, again, call on the Vietnam analogy. If we start fighting to save a government in South America for reasons most of us cannot understand, I am certain that we will be drawn deeper and deeper into a quagmire that we cannot win. Like in Vietnam, we will end by pouring millions of dollars into a military conflict where no one can tell the good guys from the bad guys. Unfortunately, we may also lose many troops, young men and women, black, white, and brown, who are killed in fighting in the rugged jungles and hills of Colombia. For What!
In the end, the rebels will more than likely come to power, become the elite rulers of the country and the former elite rulers of the country will all flee to the United States. (See: Cuba, Chile, Vietnam, Cambodia , Ethiopia, El Salvador, etc., etc, etc,). And, sadly enough the American people will still have an insatiable desire to use drugs. History should tell us that we are not going to be able to eradicate by legislation the need for such pleasure from mankind.
III. A SOLUTION
I say it is time for us to become more humane concerning drugs in our society. Our society is not well served by locking up more of our nonviolent citizens for longer periods of time when that is not solving the problem. The cost of incarcerating all our present felons convicted of drug related crimes is estimated at approximately 30 billion dollars a year. Add to this the 18 billion dollars the federal government intends to spend on drug control programs for 1999,34 and we have a mighty sum that is to be paid by taxpayers. A better use of this almost 50 billion dollars per year should be devoted to a decriminalization of drug use and possession, and the reformulation of the current Drug Enforcement Agency into the Drug Rehabilitation Agency . Such agency would use our tax dollars to fund rehabilitation treatment centers throughout the nation for addicts; provide a federal program that oversees the legal sale and distribution of hard drugs to registered addicts; provide funds for re-education and training of those in drug law enforcement in order that they may facilitate in drug treatment and rehabilitation centers.
As farfetched as it might seem, I would, also, propose that this new agency be authorized to license certain foreign governments to sell to the United States their unrefined narcotics products, such as opium poppies, cocoa paste, marijuana plants, etc. for final processing or destruction in the United States as we see fit. The agency then would allow sale of certain narcotics to registered users who would fear no criminal penalties, but who would pay tax just as with liquor and cigarettes. Of course, no one under the age of eighteen would be allowed to legally purchase such items. However, possession of such products by minors would not incur penal incarceration, but instead rehabilitative treatment and reeducation.
And, finally, such agency could provide funds for advertising that would discourage drug use, but which would also advise people where they might receive treatment.
This all sounds very pie in the sky, given our present Congress. However, the sentiments of Mr. Gagne and Mr. Black in their letters to the editor make me believe that the public is starting to wake up to our failed war on drugs. The country must realize that keeping almost a million people in prison, a disproportionate number of who are African-American, for drug related crimes does not befit a nation such as ours. Nor will it deter the more than 53 tons of cocaine coming to our shores. Unless, we decide to do something to help those secret addicts – the 70% who hold regular full time employment to feed their habit – the demand will not decline.
I am not dissuaded by the arguments of many who throw their hands above their heads and shriek that decriminalizing drugs will corrupt our youth! It would make it too easy for young people to get drugs they say. I argue not so. Youth are getting drugs today and they are illegal. Youth got drugs in yester year and they were illegal. Some youth will always experiment with drugs – even if they are decriminalized. That is the nature of youth. But I do not believe that most people , young or old, are going out to try narcotics if they were decriminalized. Most people do not want or need such stimulants. When Prohibition came to an end, most people who were not disposed to drink alcoholic beverages did not begin to do so. Now that gambling has been legalized in many states, I am certain that more people are disposed to buying lottery tickets than those who played illegal numbers. However, most of us seldom think about buying a single
lottery ticket. We are not disposed to gambling – even though it may be legal. Most people will never be disposed to using marijuana, cocaine, or heroin.
Some say we should not decriminalize narcotics because the substances are so addictive that people can not be trusted to have easy access. I am not advocating easy access. I suggest that decriminalization would consist of the government controlling the purchase and supply of narcotics, as well as their distribution in clinics to registered users. There would be no penalty for being a user and price would not be as prohibitive as would cause people to rob for their habit. Most importantly people would not go to jail for the purchase and use of narcotics.
More importantly, in this regard, there are indications that there has been positive research with respect to addiction-breaking substances that could be easily manufactured and distributed in pill form to break cocaine, heroin, and alcohol addiction.35 One such substance is ibogaine. It is derived from the roots of a 4-foot-tall flowering African shrub known as the Tabernanthe iboga.
Allegedly, anecdotal reports of Ibogaine’s addiction breaking powers go back thirty years. It is reported that the federal government has spent more than $2 million on preliminary ibogaine research but more elaborate studies must be undertaken before the substance may be widely used. Wouldn’t it be wonderful to be able to utilize such a substance that reduces cravings for narcotics in connection with a program of counseling and drug rehab. This is the type of project that a Drug Rehabilitation Agency should research, fund and support. If we can control addiction the demand for narcotics will surely decline.
There has been a lot of hypocrisy concerning the drug war. Too many of the current
politicians who have pushed for stronger drug laws and more prisons may have taken drugs in their youth. However, they have come to see the error of their ways – they want to keep their elected positions by passing laws that will save us from those drug dealers whom we fear. These politicians won’t tell us these same laws should be used against that 70 percent of the drug using population who hold full time jobs and may be our next door neighbor.
Recently, New Mexico Governor Gary Johnson has gained notoriety for his call for the government to decriminalize marijuana and heroin. The Governor, who admits to having used marijuana and cocaine briefly while in college, does not like to see people going to prison for drug use.38 I do not agree with all of Governor Johnson’s proposals to end our drug war.39 However, he does have courage and insight. The Governor has stated his position: “When a public policy isn’t working, we should try something different. If spending more than $30 billion a year and arresting 1.5 million people a year isn’t stopping drug use and abuse, then we should try a different strategy.”40 As expected, White House drug-policy advisor Barry McCaffrey accused the Governor of “ignorance and irresponsibility in calling for the legalization of marijuana and heroin.”41 Again, somehow I doubt it.
Just like it came time for us to declare victory in Vietnam and march home, I think that it is time for General McCaffrey to realize that Governor Johnson is making sense. Let’s declare victory on our failed drug war and march our troops home to an era of controlled decriminalization. And, by controlled decriminalization, I mean no criminal penalties for possession and use of hard drugs, and lesser sentences for illegal sale and distribution outside of the new government regulations.
A respected colleague with whom I work agrees with many of my arguments, but can not be optimistic that society will ever do the right thing with respect to drug decriminalization.42 He believes that the difference in Vietnam was the moral outrage and religious leadership against the war. My colleague can not imagine a time when religious leaders will march on Washington to allow greater access to drugs.
Neither do I. However, I see it as a civil and human rights issue. Religious leaders should march on Washington in an effort to change a system of incarcerating black and brown people disproportionately in its war on drugs while most white drug users go free.
2 The Orlando Sentinel, September 14, 1999.
3 See, AP, Big Guns Disable Drug Boats, The Orlando Sentinel, September 14, 1999, at A5.
7 See, Letters To the Editor, Alternatives, The Orlando Sentinel, September 14, 1999, at A44.
14 See, Most U.S. Drug Users Are Employed – Study, abcnews.go.com., September 8, 1999
15 See, Allen J. Beck and Christopher J. Mumola, Prisoners in 1998, Bureau of Justice Statistics Bulletin, August ,1999, at 1.
18 See, Darrell K. Gilliard and Allen J. Beck, Prisoners in 1997, Bureau of Justice Statistics Bulletin, August, 1998, at 12.
25 See, As Time, Laws Change...Orlando Sentinel, December 27, 1999, at A10.
26 Budget statistics for the District of Columbia show that it collected 81 million dollars in legalized gambling revenues in FY 1998. See, D. C. FY 2000 Proposed Operating Budget and Financial Plan: Connecting Resources to Results. http:/www.dccfo.com/budget/contents.htm. Page III-268.
27 See, Id. at Page I-6.
28See, esp., Steven Wisotsky, A Society of Suspects: The War on Drugs and Civil Liberties, The Cato Institute Policy Analysis No. 180, October 2, 1992.
29 See, esp., Kurt Schmoke (Mayor of Baltimore, Maryland), When Enough Is Enough; It’s time To Get Real About Guns and Drugs, The Washington Post, Outlook, October 3, 1993, at C01.
30 See, Joshua Dressler, Cases and Materials On Criminal Law, 2d edition, West Group 1999, at 29.
34 See, David Boaz, Citizen-Governor’s a Leader In Urging Drug Wars Debate, Albuquerque Journal, August 23, 1999, at A9.
35 See, AP, Pill May Help Quitting Drugs, Orlando Sentinel, January 2, 2000, at A-5.
38See, Loie Fecteau, Drug Stand Not New To Governor, Albuquerque Journal, August 29, 1999, at A1.
39 Specifically, I do not agree with Governor Johnson’s belief that drug policy should be left up to each of the individual states without federal government input. I fear that this would lead to widely disparate treatment and probable continued discrimination of African Americans. See, Boaz, supra note 25, at A9.
40 Boaz, supra note 25, at A9.
41 See, McCaffrey Rips Governor On Drug-Legalization Idea, The Orlando Sentinel, October 6, 1999, at A10.
42 The colleague to whom I refer is Professor Gerard F. Glynn who also teaches at the Barry University of Orlando School of Law. Professor Glynn is a juvenile justice expert. I thank Professor Glynn for taking the time to read my original draft and lending his comments thereto.